COVID-19 and 8-person juries

Size does matter, but not in the way you might think.

COVID-19 has upended our world. It doesn't matter whether you view the flood of COVID-19 cases as a true pandemic or merely the morbid mischief of a slightly more deadly version of the kinds of viruses that we deal with every year.

The entire country has been semi-quarantined. Some states more than others. In the battle against COVID-19, businesses have been shuttered; government services, including the education of our children, have been squelched; jobs have been cut; sports have been banished; artists have been silenced. In short, the life we have known is no more.

Some pretty intelligent people insist that this is a "new normal."

It is time to adopt eight-person juries. Indeed, it is past time.

I have been pushing for eight-person juries since I first took the bench. I hold the dubious distinction of having been awarded an "honorable mention" for my efforts when the Los Angeles County Superior Court solicited input on ways to improve the efficiency of our inherently inefficient judicial system. The esteemed former Supervising Judge Dan Buckley was in charge at the time.

I still vividly recall having hosted (now late) State Assemblywoman Sharon Runner at the court's annual Legislative Luncheon very early in my career. One of the court's guest speakers was the chair of one of the State Legislature's judiciary committees. This particular speaker used her time to berate the court for what her committee perceived to be our shortcomings. It has been too many years for me to remember the exact issues raised, but I do remember that her "to do list" would have exhausted a lot of resources.

After her speech, I approached and made the pitch that it would be a lot easier for the court to implement her committee's recommendations if we were authorized to take commensurate measures to improve our efficiency. I asked what she thought of moving to eight-person juries, especially for limited jurisdiction civil cases and misdemeanors. Her voice dripped with disdain when she responded, "That's not even on the radar."

But, that was over a decade ago. I have reason to believe that the Legislature is much happier with the functioning of our courts now than it was then. So, perhaps, now the issue of implementing eight-person juries will at least be open for discussion.

I am not going to expend much ink discussing the law on the issue. The law was expertly dissected in an article previously published, in two parts, in the Daily Journal. See, Nakamura, Hon. Kirk H.; Gilliam, Tiffany; Fukushima, Lisa; "Six Happy Jurors," Parts 1-2 (Nove. 15-16, 2012). In that article, Judge Nakamura cited the budget crisis born of the Great Recession as the impetus for his advocacy.

I expect that the Great Recession budget crisis is going to pale in comparison to the COVID-19 budget crisis that will almost certainly emerge after our economy is finally fully reopened for business. Moreover, there is now added to the very real need to save money the "new normal" impetus for social distancing. And these difficulties will no doubt be exacerbated by the insidious backlog of litigation that has been fomenting while the courts have been closed.

I should add that both I and my colleague, Judge Brian Yep, have successfully conducted a significant number of eight-person jury trials upon the stipulation of counsel. We have found that the verdicts taken have been on par with the verdicts delivered by our 12-person juries. The problem, of course, is that the "losing" counsel always wonders whether they would have done better with a jury of 12. And then typically decline to stipulate again.

Lawyers are funny like that.

The jury box in my former courtroom has a top row of seven fixed chairs, plus room to place two additional chairs at the end of the row, and a bottom row with six fixed chairs, plus room to place one additional chair at the end of the row. More typical jury boxes have two rows of seven fixed chairs each. Thus, existing jury boxes are perfectly sized to allow eight jurors to sit four to a row with a juror in every other seat. Likewise, the conference tables in the jury deliberation rooms are large enough to allow eight jurors to maintain a semblance of social distancing.

All that remains is for the Legislature to mandate the use of eight person juries, with a 6-2 super-majority required for decision in the civil cases and, of course, unanimity required in the criminal cases. As recommended by Judge Nakamura, the legislation should also provide that a civil verdict may be returned even if a juror or two is lost, so long as at least six jurors vote in favor of the verdict, thereby all but eliminating the need for alternates in civil cases. 