While as a result of the Williams case the effect of prior cases requiring a jury of twelve in federal criminal cases is unquestionably undermined, yet since Williams was in fact a State court case Williams is merely an elaborate dictum and not a square holding with respect to the rule applicable in federal trials.
Perhaps if the issue were squarely presented in an appropriate adversary proceeding, the Court might find "the monstrous price" paid for the incorporationist doctrine "in which we seem to have imprisoned ourselves" too high. Coolidge v. New Hampshire, 403 U.S. 443, 491, 493, 91 S. Ct. 2022, 2051, 29 L. Ed. 2d 564 (1971).
But assuming arguendo that Williams is to be taken as applicable to federal trials, it remains true, as plaintiff argues, that it merely settles the question whether a jury of twelve is constitutionally required by force of the Sixth Amendment.
Justice White's majority opinion in Williams makes plain that the decision does not affect the policy considerations which may affect the value of the traditional jury of twelve. "Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury."
It is therefore for the Congress, not the inferior federal courts, to resolve these policy considerations for the federal system.
Congress has recently demonstrated its intent to deal with the subject of jury selection by enacting comprehensive legislation, chiefly designed to ensure representation of a broader spectrum or cross-section of the community upon jury panels.
Nowhere in this system is there any suggestion that juries of less than twelve were contemplated; and reduction in the number of jurors certainly seems incompatible with the policy of furthering the representation of minority groups upon juries.
Moreover, the jury of less than twelve, as plaintiff well points out, also conflicts with what Congress has prescribed in 28 U.S.C. § 2072 (which authorizes the Supreme Court to adopt federal rules of civil procedure). It is there declared that such rules "shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution."
It will be noted that Congress prescribed two requirements regarding jury trial in federal courts: (1) it must preserve the characteristic features of jury trial at common law; and (2) it must preserve the characteristic features of jury trial as declared by the Seventh Amendment.
The majority opinion in Williams expressly concedes that it is a "fact that the jury at common law was composed of precisely 12"; the thrust of its holding is that that fact "is a historical accident."
That opinion likewise expressly refrains from deciding anything with respect to what is required by the Seventh Amendment.
Plaintiff also argues with great plausibility that Rule 48 F.R. Civ. P. by negative pregnant prescribes a jury of twelve for all cases where no contrary stipulation is made by the parties.
That rule reads: "The parties may stipulate that the jury shall consist of any number less than twelve or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury."
In any event it would appear more seemly for such a fundamental change in the jury system to be enacted by the Supreme Court with the tacit assent of Congress as an amendment to the Federal Rules of Civil Procedure rather than to be established by the fiat of an individual district court by local rules.
For all of the foregoing reasons we believe plaintiff's point as to trial by a jury of less than twelve is well taken, and therefore, in order to expedite appellate review, deny the motion for new trial.