Introduction
Day One: a federal criminal jury trial begins with twelve jurors and two alternates. Day Two: the court excuses one of the twelve jurors for failing to report for duty and impanels one of the alternate jurors. Day Four: the court excuses another juror for medical reasons and impanels the other alternate juror. Days Five through Ten: the parties—the defendant and the government—continue to try the case before the remaining twelve jurors. Day Eleven: the court informs the parties that the trial will likely conclude on Day Twelve. Sometime Between Days Eleven and Twelve: one of the remaining twelve jurors contacts the court and explains that he must accompany his wife to the hospital and will not be able to complete his jury duty. As a result, the court asks the parties whether they agree to finish the trial with the remaining eleven jurors. The defendant agrees, but the government does not. Day Twelve: the court declares a mistrial.
This is a simplified version of the facts of United States v. Garske,1 a criminal case involving several co-defendants who were tried in federal district court in 2018.2 In Garske, after the court excused the third juror, it followed the instruction of Federal Rule of Criminal Procedure 23(b)(2)(B) (referred to hereafter as Rule 23(b)(2)(B)),3 which requires a court to ask the parties whether they agree to continue the ongoing trial with fewer than twelve jurors.4
Rule 23(b)(2)(B) states: “At any time before the verdict, the parties may, with the court’s approval, stipulate in writing that a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins.”5 Courts have interpreted Rule 23(b)(2)(B) to mean that if the number of jurors decreases below twelve at any time before deliberations, the trial will only continue if the parties agree and the court approves.6 Should any party or the court not agree, then the court must declare a mistrial.7 In Garske, the government and one of four co-defendants did not agree to continue the trial with eleven jurors under Rule 23(b)(2)(B), so the trial court declared a mistrial.8
In circumstances like these, even if a defendant wishes to proceed with a smaller jury, the government has the power to object under Rule 23(b)(2)(B), effectively overriding the defendant’s decision and forcing the court to declare a mistrial.9 While the alternative possibility also exists where the government might agree to proceed with a smaller jury while the defendant objects, no such cases have been identified.10 Therefore, this Note focuses on only those instances where the defendant’s preference to proceed with eleven jurors or fewer is trumped by the government’s desire otherwise.
Rule 23(b)(2)(B) treats the government and the defendant equally; it offers both the same power to decide whether to continue with fewer than twelve jurors.11 This Note argues that this symmetry should be reconsidered and concludes that Rule 23(b)(2)(B) should be amended to give defendants the sole power to decide whether to proceed with fewer than twelve jurors. As this Note will discuss, a defendant’s jury trial right is so fundamental that if the defendant wants to proceed with fewer than twelve jurors, it should be their prerogative alone. Another reason to reconsider the current symmetry of Rule 23(b)(2)(B) is that in federal criminal trials, defendants are already at a severe procedural disadvantage compared to the government. To address this inherent disadvantage, procedural rules like Rule 23(b)(2)(B) should give defendants the strategic advantage to determine whether they desire to proceed to verdict, regardless of jury composition, or instead trigger a mistrial, while likewise eliminating the government’s ability to do the same.
Part I of this Note starts by recalling the history of the right to a jury trial, beginning in England and then continuing in America. Part I then traces the development of the modern jury right, including the adoption of Rule 23 and several Supreme Court decisions interpreting jury rights. Part II analyzes Rule 23(b)(2)(B) and its flaws, which include that it violates the long-standing principle that jury rights are defendants’ rights and that the Supreme Court has undermined the original rationale for its enactment. Part III proposes several amendments to improve Rule 23(b)(2)(B) in a manner that would better protect the rights of individual defendants.
The scope of this Note is small,12 but it undertakes the important mission of identifying a faulty aspect of federal criminal trial procedure and proposing several possible remedies. Although amending Rule 23(b)(2)(B) would not fundamentally change the federal criminal legal system, it would slightly chip away at the prosecution’s broad power and protect the interest of individual defendants.
I. Background on Jury Right and Jury Size
A. Historical English and Colonial American Juries
Jury trials are designed to protect those accused of crimes from suffering injustices at the hands of their accusers.13 For centuries prior to the emergence of the modern jury, the lack of such an institution resulted in abuses. For example, before juries, English kings would arbitrarily exercise their unchecked power and punish their subjects without due process.14 In twelfth-century England, King Henry II laid the groundwork for the modern jury when he created a system for resolving land disputes that involved impaneling “juries” composed of twelve free men who would ultimately rule on the matter.15
Before the creation of King Henry II’s jury system, a defendant’s guilt could be adjudicated by one of several different medieval methods that trusted the result to divine intervention, including trials by ordeal, compurgation, or battle.16 Contemporaneous with the creation of King Henry II’s jury system, the Magna Carta, signed by King John of England in 1215, acknowledged the right to a trial by jury more explicitly than ever before. Magna Carta Clause 39—one of the document’s most famous clauses—reads, in part: “No free man shall be seized or imprisoned . . . [without] the lawful judgment of his equals or by the law of the land.”17
In the fifteenth and sixteenth centuries, a number of English kings strayed from the Magna Carta’s dictates concerning judgment by one’s peers, and instead ruled abusively and without regard for the rights of criminal defendants.18 For example, the Star Chamber, an infamous English court known for its unfairness and oppressiveness, reorganized in 1487 under King Henry VII.19 Initially, the purpose of the Star Chamber was to conduct trials of people who were too powerful to be brought before the ordinary common law courts out of fear of corruption.20 Despite the original intent to protect ordinary people from their oppressors, however, the Star Chamber quickly led to abuses of power.21 For instance, kings, through the royal judges who directly served them, used torture to obtain confessions and punished jurists who ruled against the Crown.22 The English government finally abolished the Star Chamber in the seventeenth century to foreclose further abuses.23
Seventeenth-century English legislation, which relied heavily on Magna Carta Clause 39, is the origin of the jury system and the judicial process we know today.24 English juries were initially “self-informing,” meaning the jurors themselves were expected to have some first-hand knowledge of the events in question.25 Eventually, jurors started to serve less like witnesses and more like modern-day jurors, relying on the trial process itself for information about the case.26
When England began its North American colonization efforts in the seventeenth century, it brought its customs and practices with it.27 In creating a new system of government, the British colonists largely drew from existing English common law, in which the right to a trial by jury was an important feature.28 As one illustration, three years after arriving in Plymouth and establishing Plymouth Colony, the Pilgrims codified a law that decreed: “[A]ll criminal facts, and also matters of trespasse and debts betweene man and man should be tried by the verdict of twelve honest men to be impanelled by authority in forme of a jury upon their oath.”29 All of the colonies created throughout this period had similar laws, and all of these laws in some way incorporated the Englishman’s right to trial by jury.30
Eventually, when the colonies united to declare independence from England, Thomas Jefferson cited the importance of the jury system in the Declaration of Independence.31 The Declaration of Independence specifically includes in its list of grievances against King George III and the English government: “For depriving us, in many cases, of the benefits of Trial by Jury.”32
B. Constitutional Foundations of Jury Rights
As the colonies became states, they retained their jury trials.33 Massachusetts was the first state to enact a written Constitution.34 Written by John Adams in 1780, the Massachusetts Constitution guaranteed the right to a trial by jury in criminal and civil cases.35 Seven years later, in 1787, delegates from the original states met at the Constitutional Convention, at which the need to safeguard the jury was one of the most consistent points of agreement between the Federalists and Anti-Federalists.36 Ultimately, these groups formed the United States Constitution and ratified it in 1788.37 The Constitution guarantees that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.”38 Additionally, several of the amendments from the Bill of Rights, which was ratified in 1791,39 also reference the jury right—the Sixth40 and Seventh41 Amendments extend the right to trial by jury to criminal and civil cases, respectively.
C. The Supreme Court and the Modern Jury Right
Before Congress enacted the Federal Rules of Criminal Procedure, courts referred to the common law to determine the scope of the Sixth Amendment right to trial by jury.42 In 1930, several years before Congress enacted Rule 23(b)(2)(B), the Supreme Court in Patton v. United States43, 281 U.S. 276. held that it was a constitutional requirement for juries to consist of exactly twelve members.44
The key procedural issues from this case are as follows: one week into a federal criminal jury trial, a juror had become unable to serve due to severe illness.45 Finding a constitutional right to a trial by a jury of exactly twelve individuals, the federal district court ruled that all the parties needed to waive this right to continue the trial, or else the court would be forced to declare a mistrial.46 Since the government and the defendants all agreed to continue with the remaining eleven jurors, the trial proceeded to verdict and concluded the following day.47 The jury ultimately reached a guilty verdict against the defendants, who appealed on the grounds that they never should have been permitted to waive their constitutional right to a jury of twelve.48
An appeal to the Eighth Circuit Court of Appeals followed. As the circuit court had “doubt as to the law applicable to the situation here presented,”49 it certified the following question to the Supreme Court:
After the commencement of a trial in a federal court before a jury of twelve men upon an indictment charging a crime, punishment for which may involve a penitentiary sentence, if one juror becomes incapacitated and unable to further proceed with his work as a juror, can defendant or defendants and the government through its official representative in charge of the case consent to the trial proceeding to a finality with 11 jurors, and can defendant or defendants thus waive the right to a trial and verdict by a constitutional jury of 12 men?50
The Supreme Court considered this question and found that juries of fewer than twelve were unconstitutional, but that the right to twelve jurors could be waived.51 To proceed with fewer than twelve jurors, the Court explained, all of the parties, and the court, must unanimously agree to such a jury composition, otherwise, the court must declare a mistrial.52
In the Patton opinion, the Court considered whether “the effect of the constitutional provisions in respect of trial by jury [was] to establish a tribunal as a part of the frame of government, or only to guaranty to the accused the right to such a trial?”53 The Court searched the record of English and colonial jurisprudence and found no evidence that trial by jury in criminal cases was ever regarded as a part of the structure of government, as distinguished from a right or privilege of the accused.54 The Court also considered the intent of the framers of the Constitution, and determined they were focused on “preserving the right of trial by jury primarily for the protection of the accused.”55 Despite these findings, however, the Court also found that the government had its own, independent interest in twelve-person jury trials:
Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant.56
When the Federal Rules of Criminal Procedure were enacted in 1946, the drafters intended Rule 23, titled “Jury or Nonjury Trial,” to codify existing law and practice with respect to jury trial waiver, including the holding of Patton.57 Specifically, Rule 23(a) governs the defendant’s jury trial right and how this right may be waived,58 Rule 23(b) governs jury size and potential exceptions to the twelve-juror requirement,59 and Rule 23(c) governs nonjury trials.60
In 1970, the Supreme Court in Williams v. Florida61Williams v. Florida, 399 U.S. 78 (1970). overruled Patton’s holding concerning the twelve-juror requirement. In Williams, the Court upheld a state statute allowing six-person juries and concluded that twelve-person juries were not constitutionally required.62 Based on the holding of Williams, it is unclear that Patton remains binding law. Despite Williams, however, Rule 23(b)(2)(B) has remained unchanged and continues to reflect the holding of Patton, conditioning the right to proceed with fewer than twelve jurors in a federal criminal jury trials upon the parties’ agreement and the court’s approval.63
II. Analysis of the Problems with Rule 23(b)(2)(B)
This Part analyzes Rule 23(b)(2)(B) from several angles. It discusses Rule 23(b)(2)(B) in the historical context of jury rights, assesses the impact of Supreme Court jurisprudence on the rationale for Rule 23(b)(2)(B), and compares Rule 23(b)(2)(B) to Rule 23(a). This Part also argues that Rule 23(b)(2)(B) should be amended for the following reasons: (1) Rule 23(b)(2)(B) ignores the principle that jury rights are for the protection of the accused, (2) the rationale for Rule 23(b)(2)(B) has been undermined by the Supreme Court, and (3) Rule 23(b)(2)(B) unreasonably gives the government an unfair advantage over defendants.
A. Rule 23(b)(2)(B) Ignores the Principle that Jury Rights Are Defendants’ Rights
The government’s power under Rule 23(b)(2)(B) to potentially force a mistrial against a defendant’s wishes and without justification is antithetical to the historical understanding of jury rights as a defendant’s rights. Jury trials were originally created to protect defendants from being punished without due process, and have continued to serve this purpose.64 Although the government arguably has an independent interest in fair and representative jury trials,65 defendants’ interests in such jury trials outweigh those of the government.
As discussed, the jury right was first established in medieval England,66 and then took hold in America when the Founders, who recognized the importance of the jury right for the protection of the accused, explicitly bestowed the accused with the right to a trial by jury in both the Constitution and the Bill of Rights.67 Beyond just jury rights, the rights of the accused have been a priority in America since its founding because of the inherent imbalance in the power of the state versus the individual.68 For example, the Fourth and Fifth Amendments provide freedom from unreasonable searches and seizures and protection against double jeopardy, respectively, and the Sixth and Eighth Amendments ensure the right to a speedy and public trial, the right to confront one’s accusers, the right to the assistance of counsel, and the right reasonable bail.69 There are also several long-honored standards in America that all lend additional support to the conclusion that trial protections favor the accused, including the presumption of innocence, the prosecution’s burden of proving the defendant’s guilt, and the prosecution’s burden of proof beyond a reasonable doubt.70 The individual needs all of these asymmetrical protections as compensation for the imbalance of power it suffers in comparison with the behemoth state, which could otherwise abuse its power to deprive individuals of their natural rights to life, liberty, and property.71
Contemporary scholars agree that jury trials historically existed to protect the accused and continue to serve this same purpose today.72 For example, legal scholar Akhil Reed Amar argues that the Sixth Amendment right to a trial by jury serves to allocate political power to the citizenry and protect the accused, and that the government has no independent right to a criminal jury trial.73
Several Supreme Court cases also support the notion that jury rights exist to protect defendants. In Colgrove v. Battin,74 the Court recognized that the traditional purpose of the jury was to protect individuals from being wrongly convicted without a fair opportunity to defend themselves before a jury of their peers.75 Similarly, in Duncan v. Louisiana,76 the Court, reviewing the history of the development of trial by jury in criminal cases, recalled the “long tradition attaching great importance to the concept of relying on a body of one’s peers to determine guilt or innocence as a safeguard against arbitrary law enforcement.”77
Likewise, in Batson v. Kentucky,78 the Court held that the government could not engage in a pattern of discriminatory peremptory challenges without violating the Equal Protection Clause, and held that prosecutors were forbidden from challenging potential jurors solely on account of their race.79 In Batson, the Court expressly stated that its goal in so holding was to protect the accused from being deprived of their jury rights.80 Specifically, the Court wrote:
The petit jury has occupied a central position in our system of justice by safeguarding a person accused of crime against the arbitrary exercise of power by prosecutor or judge. . . . Those on the venire must be “indifferently chosen,” to secure the defendant’s right under the Fourteenth Amendment to “protection of life and liberty against race or color prejudice.”
United States courts of appeals have also considered the importance of jury trials for protecting defendants. In United States v. Curbelo,81 the Fourth Circuit Court of Appeals ruled in favor of a defendant on Rule 23(b) grounds after the district court decided to proceed over the defendant’s objection with eleven jurors.82 The majority in Curbelo stated that all defendants “are entitled to the basic procedural safeguards of a fair trial.”83 Similarly, in United States v. Garrett,84 the Eleventh Circuit Court of Appeals supported the conceptual understanding of jury rights as defendants’ rights when it stated that the purpose of the waiver provision of Rule 23(a) is to ensure that a criminal defendant is aware of his jury right before he can decide whether to waive it.85
B. The Supreme Court Has Undermined the Rationale of Rule 23(b)(2)(B)
Although the Supreme Court has never explicitly discussed Rule 23(b)(2)(B), there are several Supreme Court cases that together undermine the Rule’s rationale.
As discussed, the Supreme Court held in Patton v. United States that the right to be tried by exactly twelve jurors was constitutionally required, and this holding was later codified in Rule 23.86 In Williams v. Florida, however, the Supreme Court characterized the twelve-person rule as an “accidental feature of the jury” that is not constitutionally mandated.87 The Williams Court reasoned that as long as a jury was large enough to promote group deliberation and represent a cross-section of the community, then the exact number of jurors did not necessarily need to be twelve.88 According to Williams, as long as six jurors—the minimum number required under the Florida statute at issue in the case—could meet these criteria, then that jury would be constitutionally permissible.89
In drawing this conclusion, the Court cited several recent studies on group deliberation and decision-making that found “no discernible difference[s]” among different-sized juries.90 The Court also adopted a functional test that asks whether the essential feature of the jury is preserved when the traditional composition of the jury is changed.91 In doing so, the Court identified the purpose of the jury system as the prevention of government oppression.92 By overruling Patton—the case upon which the directive of Rule 23(b)(2)(B) is based—the Court’s decision in Williams rendered Rule 23(b)(2)(B) no more than a procedural mandate.93 Given the Court’s findings in Williams, arguably neither the defendant’s nor the government’s consent is constitutionally required to proceed with a smaller jury.
After Williams, the Supreme Court held in Colgrove v. Battin94Colgrove v. Battin, 413 U.S. 149 (1973). that a local Montana rule authorizing six-member juries in federal civil cases satisfied the Seventh Amendment guarantee of trial by jury in civil cases.95 This decision cited the Court’s recent holding and discussion of jury size in Williams for support, stating “constitutional history reveals no intention on the part of the Framers ‘to equate the constitutional and common-law characteristics of the jury.’”96
Five years later, in Ballew v. Georgia,97 the Supreme Court held that five-person juries were unconstitutional, effectively establishing that six jurors was the constitutional minimum number of jurors in a criminal jury trial.98 The Ballew Court rejected a Georgia law that permitted criminal trials by five-person juries on the grounds that such a jury composition deprives a defendant of his right to trial by jury, as “guaranteed by the Sixth and Fourteenth Amendments.”99
As in Williams, the Court in Ballew also relied on statistical studies of jury size to reach its conclusion.100 A footnote in the majority opinion states, in part, that the Court “[has] considered [the studies] carefully because they provide the only basis, besides judicial hunch, for a decision about whether smaller and smaller juries will be able to fulfill the purpose and functions of the Sixth Amendment.”101
Together, the Supreme Court’s decisions in Williams and Ballew establish that under the Constitution, the permissible number of jurors in a criminal jury trial ranges from six to twelve.102 Despite that, however, Rule 23(b)(2)(B) continues to mandate a jury of twelve, unless otherwise agreed by the parties and the court.103 Rule 23(b)(2)(B) “embodies a statutory standard that is not constitutionally required.”104
C. The Government Has an Unfair Procedural Advantage Under Rule 23(b)(2)(B)
Federal criminal trials are inherently unequal.105 Compared to the defendant, the government is an “expert adversary” with the power, resources, and “legitimate authority to accuse, prosecute, and punish.”106 As discussed, jury rights exist to protect the accused from the government,107 but Rule 23(b)(2)(B) does not achieve this purpose. Rather, it purports to give defendants the power to choose to continue with fewer than twelve jurors, but in reality gives the government the opportunity to exploit an unfair procedural advantage over those it has charged with crimes.
The subsections that follow analyze the reasons Rule 23(b)(2)(B) should be amended to prevent unfairness by giving defendants more power. The first two subsections analyze the similarities and differences between Rule 23(b)(2)(B) and Rule 23(a). The first subsection argues that Rule 23(a)’s unfair effect on the distribution of power in federal criminal trials is similar to that of Rule 23(b)(2)(B). The next subsection distinguishes Rule 23(b)(2)(B) from Rule 23(a) to explain why the fact that the Supreme Court has deemed Rule 23(a) constitutional does not foreclose the argument that Rule 23(b)(2)(B) is unconstitutional. The final subsection discusses several examples of ways Rule 23(b)(2)(B) can harm defendants.
1. The Similarities Between Rule 23(a) and Rule 23(b)(2)(B) Are Such that the Criticisms of Rule 23(a) Apply to Rule 23(b)(2)(B)
Rules 23(a) and 23(b)(2)(B) are similar in that they each purport to permit defendants to waive their jury rights, but in reality allow the government to decide whether defendants may actually do so. Given this fundamental similarity between the two Rules, the criticisms of Rule 23(a) logically apply to Rule 23(b)(2)(B).
Rule 23(a) gives defendants a conditional ability to waive their right to a jury trial in favor of a bench trial since the Rule allows the government to unilaterally block a defendant from waiving his right to a jury trial in favor of a bench trial.108 Rule 23(b)(2)(B) gives defendants a conditional ability to waive their right to a twelve-person jury since the Rule allows the government to unilaterally block a defendant from consenting to proceed with fewer than twelve jurors after one is excused for good cause.109 Each Rule permits a defendant to exercise his waiver right only if the government consents and the court approves.110 Both Rules amplify the inherent inequity between the government and the accused by subjecting defendants who seek to exercise their waiver rights to the government’s unfettered discretion.
Proposals to amend Rule 23(a) have been made regularly since the rule was adopted, claims one scholar,111 who argues Rule 23(a) is “an obsolete relic of a long gone era,”112 and “[t]he jury trial guarantee is for the protection of the accused, not the [g]overnment.”113 Rule 23(a), like Rule 23(b)(2)(B), functions as a de facto delegation of a defendant’s jury rights to the government, which widens the imbalance of power between the two parties. The same arguments against Rule 23(a) apply to Rule 23(b)(2)(B) because both Rules similarly limit the power of defendants to make independent waiver decisions concerning the nature of their federal criminal jury trials.
Some scholars have proposed solutions to improve Rule 23(a), including amending it to give defendants the unilateral right to elect a bench trial.114 Under such a proposal, as long as the government is able to obtain a fair trial, it would otherwise have no control over whether the trial is before a judge or jury.115 The American Law Institute and other legal experts agree that whether a trial is before a judge or jury is a decision that should rest solely with the accused and that defendants should not need to obtain the government or court’s consent.116 These authorities support their arguments by noting that “[w]hile theoretically the court and prosecutor might serve to protect the defendant against an unwise waiver, such power might be employed to relieve the court of responsibility or to obtain practical advantages for the prosecution,”117 and “[i]f jury trial is a privilege which the accused may forego, it is scarcely consistent to require the consent of the state or of the court as a condition precedent to the exercise of such a right.”118 In fact, there are a number of state statutes that give defendants the right to unilaterally waive their right to a jury trial in favor of a bench trial without first obtaining consent from the government and the court.119 One scholar has pointed out that “[s]uch a rule has proven to be workable, substantively fair, and administratively efficient,” and that “[a]n analogous federal rule would produce similar results in the federal courts.”120 Despite the many arguments against it, Rule 23(a) nevertheless persists today.
Another similarity between Rule 23(a) and Rule 23(b)(2)(B) is that both Rules embody the holding of Patton v. United States, which, as mentioned, was overruled in Williams v. Florida.121 Rule 23(a) was enacted to embody Patton’s holding concerning waiver of a jury trial in favor of a bench trial, while Rule 23(b)(2)(B) was enacted to embody Patton’s holding concerning waiver of a twelve-person jury.122 The only difference between the Rules with respect to their ties to Patton is that in 1965—after Patton, but before Williams—the Supreme Court in Singer v. United States123Singer v. United States, 380 U.S. 24 (1965). held that Rule 23(a)’s requirement of government consent was a valid formulation of the constitutional guarantee of trial by jury.
In Singer, the defendant sought to waive his jury trial right in favor of a bench trial, and the district court was willing to consent, as required under Rule 23(a).124 However, because the government did not consent, the district court followed Rule 23(a)’s mandate and properly denied the defendant’s waiver request.125 The jury rendered a guilty verdict, the defendant appealed, and the Ninth Circuit Court of Appeals and the Supreme Court affirmed the conviction.126 Although the Supreme Court acknowledged that the constitutional right to a jury trial in criminal cases intends to protect the accused from oppression by the government, it concluded “Rule 23(a) sets forth a reasonable procedure governing attempted waivers of jury trials.”127
When Singer was decided, Patton was still the prevailing law regarding waiver of the right to trial by jury.128 Therefore, the Singer Court relied on Patton’s authority.129 The Singer opinion extensively cites Patton and explains that although the issue in Patton concerned the permissibility of smaller juries—not jury versus bench trials—the Patton Court found no difference between jury trials before eleven jurors with bench trials before a single judge.130 Singer echoed this finding, and held “[a] defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury,” and there is “no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses consent, the result is simply that the defendant is subject to an impartial trial by jury—the very thing that the Constitution guarantees him.”131
Despite the Supreme Court’s holdings in Patton and Singer, Williams is the prevailing authority on the matter of defendants’ rights concerning jury size.132 Williams overturned Patton when it declared that the twelve-juror requirement was not constitutionally mandated; therefore, the part of the Singer Court’s rationale for upholding Rule 23(a) the relies on Patton is based on bad law, and the constitutionality of Rule 23(a), therefore, is questionable.133
Many of the criticisms of Rule 23(a) likewise apply to Rule 23(b)(2)(B) because both Rules unreasonably limit the power of defendants to waive their jury rights and neither Rule is unquestionably constitutional.134
2. The Differences Between Rule 23(a) and Rule 23(b)(2)(B) Are Such that the Arguments in Favor of Rule 23(a) Do Not Apply to Rule 23(b)(2)(B)
Despite the similarities between Rules 23(a) and 23(b)(2)(B), the Rules also differ in several key ways. Highlighting the differences between the two Rules counters the likely argument that the fact that the Supreme Court has upheld Rule 23(a) as constitutional forecloses any argument that Rule 23(b)(2)(B) is unconstitutional.
One key difference between the Rules is that which is actually sought by a defendant who requests waiver under each. When a defendant requests waiver under Rule 23(a), he seeks to alter the fundamental nature of his trial by substituting a trial by a jury of peers with a bench trial before a single judge.135 In upholding Rule 23(a), the Singer Court noted that the common law had never before recognized a defendant’s right to choose between a bench trial and a jury trial.136
On the other hand, when a defendant requests waiver under Rule 23(b)(2)(B), he seeks to continue with his ongoing trial with the remaining eleven jurors.137 This form of waiver has a lower likelihood of compromising the government’s interest as a litigant than Rule 23(a) waiver because, as discussed, studies have shown that smaller juries do not produce different results.138
The issue of whether a jury is composed of eleven or twelve members is inherently less significant than the issue of whether a trial is before a jury or a judge. Despite the Court in Patton deeming these two “forms of waiver as in substance amounting to the same thing,” further inquiry illustrates that this is not the case.139 When Patton was decided, the prevailing constitutional interpretation of the jury right was that all criminal trials required twelve-person juries, and anything otherwise, whether an eleven-person jury or a bench trial, required the consent of all the parties and the court.140 However, when the Williams Court held that twelve-person juries were not constitutionally mandated, it undermined the holding of Patton. Since the issue in Williams concerned jury size and not sentencer identity, the holding of Williams did not speak to Patton’s holding regarding the requirements for waiver of a jury trial in favor of a bench trial.141
Also, Rule 23(a) jury waiver must occur before trial begins.142 This characteristic of Rule 23(a) ensures that any trial will either always be a jury trial or a bench trial, but never both. Rule 23(b)(2)(B) waiver, alternatively, can only occur after the trial has already begun, upon the loss of a sufficient number of jurors to trigger the Rule. If the parties agree to waive under Rule 23(b)(2)(B), then the trial will have been before both twelve and eleven jurors at different moments in the trial. The potential for this change during trial suggests that waiver under Rule 23(b)(2)(B) is not as fundamental in nature as that of Rule 23(a).
Another difference between Rules 23(a) and 23(b)(2)(B) is the resulting effect of the government’s objection to a defendant’s attempt to waive under each.143 In Singer, the Court justified the government’s power to block a defendant’s bench trial request under Rule 23(a) by recognizing that the alternative to granting such a request is proceeding to trial before a standard twelve-person jury.144 Therefore, the Singer Court had no issue with Rule 23(a)’s conditioning waiver of the right to a jury trial on the government’s consent because if the government ever refused to consent, the result would simply be an impartial trial by jury—the very thing the Constitution intends to guarantee.145 On the other hand, however, if a defendant consented to an eleven-person jury trial but the government objected, the result under Rule 23(b)(2)(B) would be a mistrial.146 The next subsection explains why it is significant that Rule 23(b)(2)(B) gives the government the power to force a mistrial, but for purposes of this argument, it is important to note that Rule 23(b)(2)(B) gives the government this power, while Rule 23(a) does not.
One final difference worth illustrating is one that exists between Rule 23(a) and Rule 23(b)(3). Rule 23(b)(3) enables courts to “permit a jury of 11 persons to return a verdict, even without stipulation by the parties, if the court finds good cause to excuse a juror.”147 This language of Rule 23(b)(3) suggests that the broader Rule 23(b) may not be as concerned with giving the parties the opportunity to have a say in certain procedural aspects of the trial as Rule 23(a), which furthers the argument that waiver under Rule 23(b)(2)(B) is not as fundamental as waiver under Rule 23(a).148
The fact that the Supreme Court has deemed Rule 23(a) a constitutional formulation of the jury right does not foreclose the argument that Rule 23(b)(2)(B) is an unconstitutional formulation of the jury right. This is true for several reasons, including the fundamental difference in the nature of waiver under each Rule, the time at which waiver under each Rule must occur, and the difference in the resulting effect of the government’s objection to a defendant’s waiver request under each Rule.
3. The Government Can Use Rule 23(b)(2)(B) to Harm Defendants
As introduced, one of the primary ways in which Rule 23(b)(2)(B) can harm defendants is by giving the government the power to potentially force a mistrial without reason whenever the number of jurors decreases below twelve.149 In a possible scenario, a confident defendant might believe the trial has gone well thus far and they are likely to receive a favorable verdict. If the number of jurors were to decrease below twelve, however, the government would obtain the power to force a mistrial under Rule 23(b)(2)(B) to the defendant’s detriment.150
When a court declares a mistrial in a criminal case, one of two possible options results. In most cases, the prosecution will choose to re-try the case, and there will be a new trial with a new jury to hear it.151 Alternatively, the prosecution may choose not to pursue the case further, and that would be the end of the matter.152 In a retrial, the prosecution usually benefits at the defendant’s expense because it can reevaluate the strengths and weaknesses of its first case and capitalize on any knowledge of the defendant’s strategy it may have acquired.153 Therefore, the government can exercise its right to force a mistrial under Rule 23(b)(2)(B) to gain an additional advantage over defendants, including stripping defendants of their powerful ability to surprise the prosecution with their strategy at trial.
Another potentially harmful consequence of Rule 23(b)(2)(B) stems from the fact that it permits the government to object to a defendant’s attempted waiver without offering a reason.154 Neither Rule 23(a) nor Rule 23(b)(2)(B) requires the government to state a reason for objecting to a defendant’s waiver request;155 both Rules give the government complete discretion.156 One of this Note’s proposed amendments, presented in the next Part, would qualify the government’s right to withhold consent upon its giving a good reason for doing so.157
Although there is no direct authority discussing the benefits and detriments of Rule 23(b)(2)(B), it can be helpful to look at how the similar Rule 23(a) has been interpreted for guidance. The Singer Court justified upholding Rule 23(a) by taking an optimistic view of how the government would likely exercise its powers.158 The Court expressed “confidence in the integrity of the federal prosecutor,” and assumed it would not object to a bench trial and force a jury trial for an “ignoble purpose.”159 Reiterating the sentiment expressed by the Supreme Court in Berger v. United States,160 the Singer Court held that “Rule 23(a) does not require that the [g]overnment articulate its reasons for demanding a jury trial at the time it refuses to consent to a defendant’s proffered waiver.”161 This holding effectively rendered the government’s power under Rule 23(a) “unchallengeable and unreviewable.”162 The Court’s optimistic view of the government’s potential exercise of discretion, however, is questionable.163
It is difficult to identify a concrete example where Rule 23(b)(2)(B) resulted in the government harming a defendant because there are only a handful of appellate cases that even mention, let alone apply the Rule. Although no cases have been identified in which one defendant consents to an eleven-member jury but the government objects, other cases raise similar issues. In one such case, the previously discussed United States v. Garske,164 multiple co-defendants argued that the trial court should have required the government to provide its reason for withholding consent to an eleven-member jury.165 In Garske, the district court excused a total of three jurors—one impaneled juror and two alternates—for reasons it deemed “good cause.”166 As discussed, the district court then invoked Rule 23(b)(2)(B) to ask all of the parties whether they consented to proceed with eleven jurors.167 Despite the fact that ten days of trial had passed and three of the four co-defendants expressed a desire to proceed, one of the four co-defendants felt it would be in her best interest to sever from the others, and, therefore, did not consent.168 Additionally, the government conditioned its consent on all four of the defendants consenting, asserting that because the case was a conspiracy case, it preferred to try all four of the defendants together.169 The court declared a mistrial under Rule 23(b)(2)(B) because the government and one of the co-defendants did not consent to the eleven-person jury.170
The defendants in Garske did not challenge the constitutionality of Rule 23(b)(2)(B). Rather, the issue on appeal was whether double jeopardy should have prevented the defendants from being retried after the prosecution forced a mistrial when it refused to continue with the remaining eleven jurors.171 The defendants argued that “neither Patton nor Rule 23(b)(2)(B) was intended to give the government an automatic right to retry a defendant before a new jury simply by refusing to consent to fewer than 12 jurors and thereby compelling a mistrial over a defendant’s objection.”172 The court rejected this argument and held that “[t]he government is under no obligation to consent to a jury of eleven, and the defendants’ entitlement to waive trial by a jury of twelve does not carry with it an entitlement to override the government’s unwillingness to consent.”173 Although the circuit court impliedly upheld Rule 23(b)(2)(B) as a valid formulation of the jury right, Rule 23(b)(2)(B) has not been upheld on constitutional grounds, and could still be challenged on them based on the arguments presented in this Note.
In summary, Rule 23(b)(2)(B) should be reexamined because the Rule ignores the principle that jury rights are for the protection of the accused, the Supreme Court has undermined the original rationale for the Rule’s enactment, and the Rule unreasonably gives the government an unfair advantage over defendants.
III. Proposals to Amend Rule 23(b)(2)(B)
There are several simple changes that would improve Rule 23(b)(2)(B) by making it more fair for defendants. Although Rule 23(b)(2)(B) does not explicitly mention the resulting mistrial in the event the government withholds its consent to a smaller jury, cases such as Garske demonstrate this potential consequence. A better and more fair rule would give defendants the right to unilaterally decide for themselves whether to proceed to verdict with fewer than twelve jurors after a juror is excused for good cause.
It is important for defendants to have the right to decide whether to continue in the circumstances considered by Rule 23(b)(2)(B) because jury rights are defendants’ rights, and this would be one way for defendants to retain the power to exercise these rights. Also, as discussed, defendants are already at a severe procedural disadvantage compared to the government, so where procedural rules like Rule 23(b)(2)(B) are implicated, they should give defendants the power to strategically decide whether to agree and proceed to verdict—regardless of the number of jurors—or object and trigger a mistrial. Whether a defendant believes he is winning and wants to see his current trial through to the end, or aims to prevent the government from getting a second bite at the apple, any of the following proposed versions of Rule 23(b)(2)(B) would benefit defendants and be consistent with the historical purpose of jury rights.
A. Eliminate the Government’s Ability to Withhold Consent
The legal and policy problems of Rule 23(b)(2)(B) would be remedied by an amendment that removed both the government’s and the court’s power to override a defendant’s decision to proceed with fewer than twelve jurors. As Rule 23(b)(2)(B) currently stands, the government and the court have the power to override the defendant’s decision to waive the right to twelve jurors. Rule 23(b)(2)(B) should be amended to eliminate the ability of both the government and the court to override a defendant’s waiver, unless the court determined the defendant was in some way responsible for the juror’s absence or that the defendant’s decision was made not willingly or intelligently.174
A slightly different, less ideal, amendment would still eliminate the government’s existing power to override a defendant’s waiver decision but would allow the court to retain its discretion over the decision.175 One potential issue with this proposal is that a court could abuse its discretion and act in its own interest in making such a decision. In fact, this very issue has already been contemplated in the context of a proposed amendment to Rule 23(a).176 Nevertheless, this version of Rule 23(b)(2)(B) would still be an improvement of the existing version, since it would at least eliminate the government’s existing veto power over the defendant’s ability to waive.
B. Require the Government to Give a Good Reason for Withholding Consent
A third possible version, less preferable than those previously presented, would still allow the government to withhold consent to a trial by fewer than twelve jurors, but only if it were able to provide a valid reason for its decision. Although this version would not be as beneficial for defendants as the prior two, it would still be an improvement over the current version, especially from the policy perspective of protecting defendants from their powerful adversary. This version would require the government to provide an explanation for withholding consent, which the Rule could qualify as “good reason,” subject to approval by the court.177
Any of the government’s asserted reasons for withholding consent would need to be considered by courts on a case-by-case basis. An example of a permissible reason might be if the excused juror was someone that the government had deemed very important during jury selection, while an impermissible reason might be if the government procured new evidence and wanted to impanel a new twelve-person jury to start the trial anew. This option is the least preferable of the three because it depends on the good faith representation of the prosecution, which is not guaranteed.178
Each of the above proposals would represent an improvement upon the current version of Rule 23(b)(2)(B). As pointed out by the Court in Williams, there can be a tendency for courts to rely on a previous finding, even long after it has been exposed as error.179 Therefore, this Note has undertaken the worthwhile exercise of examing a long-standing Federal Rule of Criminal Procedure, declaring it faulty from a legal and policy perspective, and proposing several possible improvements.
Conclusion
This Note is the first to thoroughly examine Rule 23(b)(2)(B), identify its flaw, and propose several possible remedies. Amendment of Rule 23(b)(2)(B), while falling far short of the structural change necessary for fundamental criminal legal reform, would create some additional protection for individual criminal defendants pursuing their right to jury trial. As such, this small step is one worth considering.