Libby trial question

Edward A Hartnett hartneed at
Mon Feb 26 13:48:25 PST 2007

Federal Rule of Criminal Procedure 23(b) provides:

(1) In General. 
A jury consists of 12 persons unless this rule provides otherwise.
(2) Stipulation for a Smaller Jury. 
At any time before the verdict, the parties may, with the court's 
approval, stipulate in writing that:
(A) the jury may consist of fewer than 12 persons; or
(B) a jury of fewer than 12 persons may return a verdict if the court 
finds it necessary to excuse a juror for good cause after the trial 

(3) Court Order for a Jury of 11. After the jury has retired to 
deliberate, the court may permit a jury of 11 persons to return a verdict, 
even without a stipulation by the parties, if the court finds good cause 
to excuse a juror.
The constitutionality of juries as small as six was upheld in Williams v. 
Florida in 1970.

Edward A. Hartnett
Richard J. Hughes Professor
     for Constitutional and Public Law and Service
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
hartneed at
SSRN author page:

"Franck, Matthew J" <mfranck at> 
Sent by: conlawprof-bounces at
02/26/2007 04:13 PM

<conlawprof at>

Libby trial question

NPR just reported that today, after the judge in the Scooter Libby trial 
dismissed a juror who had been “tainted” by outside information about the 
case, the prosecution moved that one of the alternate jurors join the 11 
original jurors and that they begin deliberations over from the 
beginning.  The defense insisted that the remaining 11 jurors should 
continue without a new twelfth juror, and that is what the judge agreed 
to.  I confess my near-total ignorance of federal criminal procedure, but 
this is new to me.  Is it normal for dismissal of a juror midway through 
deliberations to be followed by continued deliberation of a reduced jury 
without an alternate joining it?  And convictions and acquittals are 
considered valid with fewer than 12 jurors deciding?  How low can you go?  
Ten jurors?  Nine?  Five?



Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail mfranck at

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