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Do I Have the Right to a Unanimous Jury?

The right to a jury trial was solidified in the Sixth Amendment in 1791, and for good reason. Denial of the right to a jury of your peers was one of the grievances specifically enumerated in our Declaration of Independence. The jury serves as a tool to check the immense power of the government and prosecution in criminal cases.

However, the implementation of trial by jury has posed questions for the courts ever since. Can a defendant waive his or her right to a jury trial like other rights, and opt for a judge trial instead? Is a 12-person jury guaranteed, or can it be less? Does the Constitution require that a jury be unanimous to convict?

Jury Size

Contrary to conventional conception, a jury does not have to be made up of 12 people. The United States Supreme Court has piecemealed together the following constitutional limitations regarding jury size over the last 40 years.

Jury SizeConstitutional? Requirements
Five (5)No
Six (6)YesMust be unanimous
Twelve (12)YesDoes not have to be unanimous

In straying away from allowing smaller juries, the Supreme Court has relied on social science and mathematics studies indicating that the larger juries reach more accurate decisions.

Although a six-person jury is the minimum requirement set by the Supreme Court, many states have pending or passed legislation that increases this out of concerns for accuracy and defendant rights.

In North Carolina, a case involving a felony charge must have a jury of 12 persons, all of whom must agree on a guilty verdict in order for a defendant to be convicted.

A defendant charged with a misdemeanor in North Carolina does not have the right to a jury trial. Instead, your case is heard at the “district” trial court, where you may have several options.

  • Your defense attorney can negotiate a plea deal where you plead guilty to a lesser charge

  • Your defense attorney can show the prosecutor why the charges are bad or what a strong case you have and they dismiss the case against you

  • Your case could be ultimately be dismissed if the prosecution’s witnesses do not show up to court

  • If this is your first criminal offense, you might be eligible for what is called a “deferred prosecution program” where you admit guilt to the charges but can have your charges ultimately dismissed if you fulfill the community service, probationary, counseling and/or fee requirements of your specific program.

  • You can plead “not guilty” and receive a judge (bench) trial.

If you proceed to trial at the district court level for your misdemeanor charge in North Carolina, you do not have the right to a jury trial there. You will instead receive a judge, or “bench” trial, where the judge hears the evidence against you and determines whether the State proved your guilt beyond a reasonable doubt. If the judge convicts, you can then appeal to the “superior” trial court for a trial with a 12-person jury. If you were found guilty at your judge trial, this cannot be held against you at your jury trial.

North Carolina’s dividing the trial court into district and superior court like this results in fewer overall jury trials, which are longer and more expensive for the government than judge trials. However, our courts have ruled that this structure is still constitutional under the Sixth Amendment right to jury trial.

Judge Trial vs. Jury Trial

In 2014 North Carolina became the last of the 50 states to give felony criminal defendants a choice between a judge trial and trial by jury. The previous law required a jury trial but now defendants not potentially facing the death penalty can choose.

The new law provides defendants with greater flexibility in their legal strategy. In certain cases, a defense attorney might advise their client to opt for a judge trial. For example, in particularly emotionally charged or high-profile cases, a judge might be less prejudiced against a defendant because of his or her race, economic standing or physical appearance. Even the most equitable juror is still human, and probably untrained in the process of dispassionate legal decision-making.

On the flip side of this, some judges can be just as biased as jurors. North Carolina is one of the many states that elects its judges, making their decisions susceptible to public opinion about certain types of cases or defendants in an effort to stay elected.

A good defense attorney will be able to weigh a particular judge’s history and advise whether a judge trial is in their client’s best interests. In the case of a jury trial, a defense attorney engages in the process of voir dire, or jury selection, to eliminate jurors that might be biased against the defendant.


In the trial for any federal crime, a jury is required to be unanimous, meaning all jurors must agree to convict. North Carolina is one of 48 states that also requires that any jury verdict be unanimous. Only Louisiana and Oregon allow convictions by a non-unanimous vote (but only for crimes not punishable by the death penalty).

If you are facing criminal charges at the state or federal level in North Carolina, it is important that you have the guidance of skilled legal counsel to defend your rights. At Arnold & Smith, PLLC our criminal defense attorneys have experience successfully fighting for people’s rights in both state and federal court against a wide variety of criminal charges. Contact us today for a consultation with one of our dedicated attorneys.