A jury panel traditionally consists of twelve jurors.38 In criminal cases, Delaware’s Constitution guarantees to a defendant the right to a jury of twelve persons.39 Parties, however, may stipulate to fewer than twelve jurors.40 In criminal cases, the stipulation must occur prior to the verdict, and the court must approve the stipulation.41 The parties in a criminal case may also stipulate that, where there is a panel of twelve jurors, in the event that the court finds it necessary to excuse one or more jurors for just cause after the trial commences, a verdict may be returned by a panel of fewer than twelve jurors.42
Apart from stipulation, the number of jurors in civil cases may be determined by the demand for a jury in the pleadings. Any written demand for trial by jury must be served upon the other parties not later than ten days after service of the last pleading directed to such issue.43 If any such demand fails to request specifically a jury of twelve persons, such party will be deemed to have consented to a panel of six persons.44 Notwithstanding a party’s failure to demand a twelve member jury, upon motion a court in its discretion may order a trial by a jury of twelve persons of all issues for which trial by jury has been demanded and a right to trial by jury exists.45
38. See Claudio v. State, 585 A.2d 1278, 1298-1305 (Del. 1991).
39. Claudio v. State, 585 A.2d 1278, 1301 (Del. 1991).
40. Super. Ct. Civ. R. 48; Super. Ct. Cr. R. 23(b); Comm. Pls. Ct. Cr. R. 23(b).
41. Super. Ct. Cr. R. 23(b); Comm. Pls. Ct. Cr. R. 23(b).
42. Super. Ct. Cr. R. 23(b). The risk of a panel of fewer than twelve jurors is minimized by the appointment of alternate jurors. See § 6:12.
43. Super. Ct. Civ. R. 38(b).
44. Super. Ct. Civ. R. 38(d).
45. Super. Ct. Civ. R. 39(aa).
© 2010 David L. Finger