Jury composition challenges

The goal of the summoning process is to generate a pool of qualified venirepersons from a fair cross section of the community, from which jury panels can then be drawn. If the summoning process excludes from the pool representative numbers of what the law recognizes as members of “cognizable groups,” the fair cross section goal is unconstitutionally compromised.

The term “cognizable group” has not been finally defined by the Supreme Court. Most lower courts have set forth four characteristics necessary for a group to be “cognizable:” that the group can be functionally defined, that there is group cohesion, that the group has a demonstrably different social or judicial outlook, and the size of the group. Under these criteria, cognizable groups will almost certainly be found based on race, ethnic ancestry, religion, and gender; sometimes found based on socioeconomic status, occupation, sexual preference (only in California, so far), and geography (e.g., urban versus rural); and almost certainly not found on the basis of age.

Impermissible exclusion of members of cognizable groups can occur at several stages in the summoning process:

• Using source lists that under-represent some cognizable groups
• Not randomly summoning from the source lists
• Making determinations that some summoned persons do not meet minimum qualification standards in ways that skew the pool
• Granting excuses from jury service that skew the pool

Mounting a jury composition challenge is a major and costly undertaking for a litigant. First, the law on the subject is complex. Second, and more importantly, to attempt to provide factual proof of under-representation requires scrutinizing many months’ worth of jury pools. It is insufficient to show that a pool on any given day is unrepresentative, because that could be an aberrational result of an acceptably-performing system.

The best source for reading about the details of jury composition challenges is Chapters 5 and 6 of JuryWork: Systematic Techniques, by the National Jury Project (2nd Ed., updated yearly) (Thomson/West).