SECTION 17 Jury Trial in Criminal Cases
A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict. The accused shall have the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury.
The 1974 Constitution made a number of changes in the jury trial guarantee. In the trial of noncapital major felonies, the jury continues to consist of twelve persons, but ten must concur to render a verdict instead of the nine required under the prior constitution.
Juries for the lesser felonies were enlarged from five to six, but the former requirement of jury unanimity was abandoned. Consent of five of the six was to be sufficient for a verdict. The U. S. Supreme Court, in Burch v. Louisiana (1979), held that this provision violated the federal Constitution and that unanimity of the six jurors was required. The state law provision in the smaller jury has thus been superseded; however, the federal courts have allowed the less-thanunanimous requirement for the twelve-person jury.
The provision continues the prior constitution’s guarantee of a right to challenge jurors peremptorily, with the number of challenges to be fixed by law. The innovation in the selection process is the right “to full voir dire examination of prospective jurors" The purpose of the provision is to continue the traditional Louisiana practice of allowing the defense to examine prospective jurors at some length. It prevents adoption of a jury selection procedure as used in the federal system where the defense’s ability to examine prospective jurors can be substantially circumscribed. In a number of cases, the Louisiana courts have reversed convictions because of the failure to allow the wide latitude on voir dire the constitution demands, especially if the lower court judge curtails questions about how prospective jurors react to a defendant who does not take the witness stand, as in State v. Frith (1982).
Consistent with Louisiana’s civil law heritage, the constitution does not contain a right to a jury trial in civil cases. Article V, section 5(C) also continues prior provisions that allow the appellate courts in civil cases to review facts found by a jury, this review extending to reversing or revising such jury determinations.