My focus today will be on the twelve-person unanimous jury and on the contrasts between such juries and six-person juries or twelve-person juries than can return verdicts by ten-two or nine-three votes. Until about fifteen years ago, it appeared that the sixth and seventh amendments required all federal juries to have twelve members who reached unanimous verdicts, and it appeared possible that the Supreme Court would force the states to conform to the federal standards. Instead, the court did almost the opposite. It sanctioned juries as small as size six in state criminal cases and federal civil cases, and it allowed twelve-person juries in state criminal cases to return verdicts when only nine persons agreed. We must take the Supreme Court's constitutional judgment as conclusive- at least for the moment. But just because the Constitution permits a change does not mean it is wise. Today I would like to talk about the wisdom of these changes and to ask whether states and courts should use the permissions the Supreme Court has given them, or whether they should retain or return to the original understanding. To anticipate my conclusion, I believe that in all respects but one-unanimity in civil juries-the Framers knew best.
Lempert, Richard O. "The Twelve-Person, Unanimous Jury: Does It Have More than History to Recommend It?" International Society of Barristers Quarterly 21 (1986): 330-342.