1. 399 U.S. 78 (1970). We may note that the New Hampshire Supreme Court disregarded and thus by implication rejected Williams and Colgrove when asked by the state's senate whether the authorization of a jury of fewer than 12 members would violate the United States or the New Hampshire constitutions. The justices unanimously referred to an opinion their court had rendered in 1860 on this issue: “‘no body of less than twelve men, though they should be by law denominated a jury, would be a jury within the meaning of the constitution …. nor [has the legislature the power] to provide that a number of the petit jury, less than the whole number, can render a verdict.’” The justices add: “We reaffirm this [1860] decision, believing that the vitality of its conclusion remains today, especially in light of the number of empirical studies that have questioned the impact of the six-member jury on our court system” (Opinion of the Justices, No. 81–196, N.H. Sup. Ct., 431 A.2d 135, 137).
2. See Harry Kalven, Jr., and Hans Zeisel, The American Jury 487 (Boston: Little, Brown & Co., 1966).
3. See text at note 5.
4. In the courts of limited jurisdiction, the 5-out-of-6 member jury is standard in six states—Arizona, Kentucky, Nebraska, Oklahoma, Oregon, and Texas. In Montana 4 out of 6 jurors can find a verdict, and in Utah 3 out of 4 jurors. In the Virginia courts of limited jurisdiction a jury of 5 must be unanimous.
5. 93 Mich. 399 (1892).