12 vs. 6 Person Jury Demand

By: Tina Paries, Income Member

In Illinois, the right to a trial by jury is a constitutional right in civil and criminal cases. The option to select six or twelve jurors in certain civil cases has recently been called into question. The Illinois Code of Civil Procedure previously provided in jury cases where the claim for damages is $50,000 or less, the case “Shall be tried by a jury of 6, unless either party demands a jury of 12.” However, that was amended in 2015 to provide that “All jury cases shall be tried by a jury of 6,” effectively precluding a litigant from selecting a jury of 12.

On December 21, 2015, a Circuit Court of Cook County trial judge addressed the amendment after a party in one of his cases filed a motion for leave to file a twelve-person jury demand and declared the amendment unconstitutional. In his analysis, the trial judge reviewed constitutional records and case law dating back to the 1800’s and early 1900’s where juries consisted of twelve members. Although the Illinois Legislature attempted to amend this early on, the amendments never gained traction because it was too “revolutionary” to propose inserting a number in the constitution less than twelve.

The Legislature considered the issue again in the 1960’s and 1970’s with the goal of reducing backlog and trial delay. Although one delegate proposed an amendment restricting the number of jurors for civil cases, it was never adopted. Arguing against the amendment, another delegate pointed out that resolving case backlog should not outweigh the need to protect the jury system and ensure it serves the interests of justice. Based on this history, the trial judge held that the Legislature “Cannot pass a law that decreases the number of juries from the amount previously provided, which – for 200 years – was twelve.”

The trial judge relied on extensive case law interpreting a litigant’s right to a jury and public policy concerns. He reviewed studies on the impact of jury size and found the following opinions:

• A larger jury panel allows for a larger sample of diversity in demographic categories like race, age and sex, as well as opinions and views
• Decreasing the number to six provides a less accurate cross-section of the public
• A larger jury panel deliberates longer and involves greater consideration of evidence, facts and sharing of ideas
• A larger jury panel can lead to more accurate verdicts because the cumulative memory recall improves in larger groups
• More accurate verdicts are more predictable and can be crucial in facilitating settlements

Based on the foregoing, the trial judge found the amendment unconstitutional. However, a trial judge’s holding is not binding precedent. This matter will proceed to the Illinois Appellate Court and will also likely be reviewed by the Illinois Supreme Court. Until these courts determine whether the amendment is constitutional, it is still law in Illinois and should be considered when determining whether to request a jury.