Florida’s Six-Person Jury Is Under Review – Why Defense Counsel Should Demand Twelve Now

October 13, 2026 Firm News, Legal News Social Share

Kian v. Florida and the steps that protect your client today by Michael Ufferman, Michael Ufferman Law Firm, P.A., October 13, 2026 · Criminal Appeals & Post-Conviction

Key Takeaways

The U.S. Supreme Court is deciding, in Kian v. Florida, whether serious felony defendants have a constitutional right to a twelve-person jury. Kian v. Fla., 146 S. Ct. 2732 (2026)
The grant of review did not change the law. Florida’s six-person jury remains valid under Williams v. Florida. Williams v. Fla., 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970)
Act at trial now. File a written motion for twelve jurors, cite the Sixth and Fourteenth Amendments and Kian, get a ruling, and object on the record before the jury is sworn.
Preservation is everything. An unpreserved claim may be barred on appeal unless it rises to fundamental error. Fla. Stat. Ann. § 924.051
A win in Kian would most clearly help cases still on direct appeal – not convictions that are already final.

What Kian Is About

The United States Supreme Court is considering a case that could change how Florida conducts criminal felony trials. In Kian v. Florida, the Court will decide whether the Sixth and Fourteenth Amendments guarantee a defendant charged with a serious felony the right to a twelve-person jury. The Court granted review on June 15, 2026, in a case arising from Florida’s Fourth District Court of Appeal. Kian v. Fla., 146 S. Ct. 2732 (2026)

For Florida criminal defense lawyers, this pending decision calls for action now. Trial counsel should expressly request a twelve-person jury and preserve the constitutional objection to proceeding with six jurors in applicable cases. Appellate counsel should review pending cases for this issue and raise it through the appropriate procedural vehicle, addressing preservation directly.

Waiting until the Supreme Court rules could leave a client facing procedural barriers that timely advocacy might have avoided.

In plain terms: “Preserving” an issue means formally raising it at trial – in writing and on the record – so that it can be argued on appeal. If it is not preserved, an appellate court may refuse to consider it at all.

The Law As It Stands Today

Florida law provides for twelve jurors in capital cases and six jurors in other criminal cases. The constitutional foundation for the six-person system is Williams v. Florida, which held that Florida’s use of six jurors did not violate the federal constitutional right to a jury trial. Williams v. Fla., 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970) Williams remains binding unless the Supreme Court overrules it. The grant of review in Kian has not itself changed the law.

Kian’s challenge draws on Ramos v. Louisiana, which held that the Sixth Amendment requires unanimous verdicts to convict defendants of serious crimes in state court. Ramos v. Louisiana, 590 U.S. 83, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020) The argument is that the historical understanding of the jury-trial right also requires twelve jurors – and that Williams cannot be reconciled with the constitutional approach applied in Ramos. That is the argument before the Court, not a result the Court has already reached.

At Trial: Create a Clear Record

An anticipated denial under existing precedent is a reason to preserve the issue carefully – not to skip it. Counsel can acknowledge that Williams controls while expressly asserting the client’s federal constitutional claim and requesting a twelve-person jury.

As a practical matter, counsel should:

File a written motion requesting twelve jurors before jury selection, identifying the Sixth and Fourteenth Amendment grounds and the pending challenge in Kian.
Obtain an express ruling on the motion.
State the objection clearly to proceeding with six jurors, and renew it as necessary before the jury is sworn.
Complete the record so that the motion, ruling, and relevant proceedings are included in the appellate record.

Florida’s preservation statute requires a timely, sufficiently specific argument that fairly apprises the trial court of both the relief requested and its legal basis, followed by a ruling. Fla. Stat. Ann. § 924.051 A passing reference to Kian, or a general objection that does not identify the constitutional grounds, may leave unnecessary uncertainty about what was preserved.

Why this matters on appeal. An issue that is not properly preserved generally cannot be raised on appeal at all unless it amounts to fundamental error. Fla. Stat. Ann. § 924.051 While Williams remains good law, counsel should not assume a reviewing court will treat a six-person jury as fundamental error. Preservation at trial is far more reliable than hoping the fundamental-error doorway stays open.

On Appeal: Address the Issue Before the Window Closes

For a defendant convicted by a six-person jury whose direct appeal remains pending, appellate counsel should examine the trial record for a request, objection, ruling, or waiver concerning jury size.

Where the issue was preserved, present the claim in the initial brief, acknowledging existing precedent and arguing for relief if the Supreme Court changes that precedent.
Where trial counsel did not preserve the issue, assess whether a legally supportable basis for appellate review exists – principally fundamental error under Florida’s preservation statute – and explain that basis expressly. Fla. Stat. Ann. § 924.051 Raising the claim on appeal does not automatically cure the absence of a trial objection (although there may be an argument that a defendant can facially challenge the constitutionality of the six-person jury statute for the first time on appeal).

A cautionary tale. The Sixth District’s recent decision in Rogers v. State illustrates the danger of waiting. After the Supreme Court accepted Kian, Rogers sought permission to submit supplemental briefing on jury size. He had raised the issue neither at trial nor in his initial brief. The court denied permission, emphasizing those omissions, the continuing authority of Williams, and the discretionary nature of supplemental briefing. Rogers v. State, No. 6D2025-0883, 2026 WL 1862160 (Fla. Dist. Ct. App. June 29, 2026)

The lesson is clear: do not assume an appellate court will permit a new issue to be added later merely because the Supreme Court is considering it.

If the initial brief has already been filed, counsel should promptly evaluate whether to seek leave to supplement or amend the briefing. In an appropriate case, counsel may also consider requesting that the appeal be held in abeyance pending Kian. These requests require a case-specific justification; neither supplemental briefing nor a stay is automatic. Counsel should also assess any available further review and comply with all applicable deadlines – a pending Supreme Court case does not suspend deadlines in another defendant’s case.

If Kian Succeeds: Who Benefits, and What Relief Follows

A favorable decision would not necessarily reopen every conviction. The distinction between cases still on direct review and convictions that are already final is critical.

Cases on direct review. Under Griffith v. Kentucky, a new constitutional rule governing criminal prosecutions generally applies to cases pending on direct review or not yet final. Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) That principle does not eliminate separate questions of preservation, waiver, or remedy.

Final convictions. Final convictions present a different analysis. In Edwards v. Vannoy, the Supreme Court held that the jury-unanimity rule announced in Ramos did not apply retroactively on federal collateral review. Edwards v. Vannoy, 593 U.S. 255, 141 S. Ct. 1547, 209 L. Ed. 2d 651 (2021) On the Florida side, collateral retroactivity is governed by the standard in Witt v. State, which permits postconviction relief only for fundamental, constitutional changes in the law – not evolutionary refinements. Witt v. State, 387 So. 2d 922 (Fla. 1980) Any favorable ruling in Kian would require careful consideration of its scope under both federal and Florida retroactivity rules. Counsel should not promise that every conviction returned by a six-person jury will qualify for a new trial.

The Bottom Line

The outcome of Kian remains uncertain. The opportunity to preserve a client’s claim is available now. Florida defense lawyers should use that opportunity at trial and carry the issue forward on appeal through timely, procedurally sound advocacy – placing their clients in the strongest available position to seek the benefit of the Supreme Court’s eventual decision.

Contact Us

If you have been convicted by a six-person jury in a Florida felony case – or are facing trial now – the twelve-person jury question may affect your rights. The window to preserve this issue can close quickly. Contact Michael Ufferman at (850) 386-2345 to discuss whether and how this issue applies to your case.

This article reflects developments as of September 30, 2026. Because Kian v. Florida is actively being briefed in the U.S. Supreme Court, the law in this area may change – please check for updates or contact us for the current status.

This article is provided for general informational purposes only and does not constitute legal advice. Reading it or contacting the firm does not create an attorney-client relationship. Every case is different; outcomes depend on the specific facts and applicable law.

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