Constituting the jury pool

Fair cross section

In both civil and criminal cases in both federal and state courts, the Constitution requires that the jury pool be drawn from a “fair cross section” of the community. This requirement serves at least three constitutional purposes: 1) to assure that the litigants have a chance at a jury that is representative of the community; 2) to assure that all citizens have the opportunity to sit on juries; and 3) to secure the reputation of the justice system for fairness. The fair cross section requirement is met when the jury pool is drawn from sources from which no “distinctive groups” have been systematically excluded. While the Supreme Court has not yet set any definitive guidelines for when a group is “distinctive,” the Court has made clear that African-Americans, Mexican-Americans, and women are distinctive groups, the systematic exclusion of whom will violate the fair cross section requirement. Most efforts to convince courts that other groups—such as those defined by socio-economic status or attitudes—are distinctive, have failed. (However, sometimes states have expanded the number of distinctive groups. For example, a California court held that lesbians and gay males form such a distinctive group, a result that was later codified into the California statutes.) For more detail about the statutes and case law establishing the fair cross section requirement, click here.

It is important to recognize that the fair cross section requirement applies only at the first stage of the three-stage process by which citizens end up serving on a jury.

• In the first stage, a group of citizens is summoned for jury duty. Those who appear constitute the “jury pool.”
• In the second stage, some members of the pool are randomly selected to be sent to a courtroom in which selection of a jury is about to proceed. These persons constitute “the venire.” The number of members of the venire is always greater than the number of jurors who will actually sit, to allow for the exercise of for-cause and peremptory challenges and alternate jurors.
• Then in the third stage, some of the members of the venire are dismissed due to challenges. Those who remain end up serving on the jury or as alternate jurors.

The fair cross section requirement applies only to the first of these stages, that is, to the summoning of the jury pool. There is no constitutional right to a fair cross section in the venire or in the jury (although there is a right in the third stage for prospective jurors not to be challenged solely on the basis of race or gender—for a discussion of this topic, click here.)

Source lists

The beginning point for summoning a fair cross section of the citizenry is the source list(s) used by the court system for identifying potential jurors. One list that is used by most state courts and federal district courts is the list of registered voters within the geographic area covered by the court (judicial district, county, etc). Some courts use this list alone. Other courts, in an effort to include more potential jurors, particularly those who have traditionally been under-represented in the jury pool, use additional lists. The other most commonly used list is licensed drivers. Other lists used by some courts include public assistance rolls, unemployment compensation rolls, property tax rolls, and others.

Beyond the use of the statutorily required lists, the choice to use supplementary lists is almost always left by legislatures to officials at the level of the local judicial district. Thus, the lists used often vary significantly within a state and across federal judicial districts. For example, in Indiana the statewide rule gives a great deal of discretion to the jury administrator of the local court: “The jury administrator shall compile the jury pool annually by selecting names from all voter registration lists for the county, supplemented with names from at least one other list of persons resident in the county, such as lists of utility customers, property taxpayers, persons filing income tax returns, motor vehicle registrations, city directories, telephone directories, and driver’s licenses.”

Despite efforts to deepen the jury pool through multiple source lists, under-representation of minority groups continues to be a problem for most courts. For a brief explanation of this problem, click here. For an explanation of some more aggressive (although potentially constitutionally troublesome) ways to obtain more minority jurors, click here. For a list of other sources to consult on this topic, click here.

Case law, statutes, and further reading