The Short, Unhappy Life of the Functional Equivalence Test

Posted: 10 Jun 2022 Last revised: 11 Jul 2023

See all articles by Michael J. Saks

Michael J. Saks

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: May 27, 2022

Abstract

Justice Gorsuch recently called to account a half-century old Supreme Court opinion: “[F]or the first time and in defiance of centuries of precedent, this Court held that a 12-member panel ‘is not a necessary ingredient’ of the Sixth Amendment right to trial by jury…. Williams [v. Florida] was wrong the day it was decided, it remains wrong today, and it impairs… the integrity of the American criminal justice system….”

Arguing that none of the tools of constitutional interpretation could answer the question of how small a jury could be and remain acceptable to the Constitution, the Williams Court invented the functional equivalence test: Any feature of trial juries was acceptable so long as the new feature did not degrade performance relative to that of the traditional twelve-person unanimous jury. Purporting to use that test, the Court approved juries as small as six. A mere eight years later, the justices abandoned the new test, while leaving in place the holding that was the offspring of the discarded test.

With what consequences? After abolishing the requirement of a twelve-person jury, and then withdrawing the foundation on which the abolition stood, nothing but thin air was left to support a momentous change in a venerated legal institution. Yet lower courts continue to enforce the zombie holding of Williams. A second harm is more practical: The smaller juries that remain with us are less reliable, more unpredictable, and more likely to produce aberrant verdicts.

Keywords: jury, constitution, jurisprudence, Sixth Amendment, jury size, functional equivalence

Suggested Citation

Saks, Michael J., The Short, Unhappy Life of the Functional Equivalence Test (May 27, 2022). Available at SSRN: https://ssrn.com/abstract=4121905 or http://dx.doi.org/10.2139/ssrn.4121905

Michael J. Saks (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

111 E. Taylor Street
MC-9520
Phoenix, AZ 85004
United States

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