Case law and statutes and further reading

The evolution of the fair cross section requirement is a prolonged saga stretching throughout American history by which the composition of jury pools has gradually become more inclusive. The movement has proceeded by fits and starts, with long periods of little or no change. And like most aspects of American history, issues of racial and gender discrimination have played a particularly prominent role. But it is fair to say that from the 1940’s through the present, the trend toward greater inclusiveness has been steady and relatively accelerated. Nowadays the main issues of constituting jury pools do not involve intentional, systematic exclusion of groups. Rather, the main issues involve the mechanics of choosing the best source lists (for more on this, click here), effectively delivering jury summonses, and inducing citizens to appear in response to the summonses. For a discussion of these mechanical issues, click here.

In the early days of the country, only white male property owners could vote. In most localities, eligibility to serve on a jury was limited even further because of what is called the “key man” system of jury summoning. Under that system, the jury commissioner summoned only “key men,” that is, certain white male property owners whom the commissioner thought were particularly suited to jury duty because of intelligence, wisdom, and good judgment. The subsequent history of jury summoning consists of the gradual replacement of the key man system with a much more inclusive system (although the key man system was not totally put to rest until the 1960’s). Below are some of the statutes and cases that constitute the key transitions in this development:

• 1875 Congress enacted a law (18 U.S.C. 243) making it a criminal offense to practice racial discrimination in jury selection. But there is only one recorded instance of a prosecution under this statute.
   
• 1879 Strauder v. West Virginia, 100 U.S. 303, held that a state statute barring blacks from jury duty violated the 14th Amendment.
   
• 1880 Neal v. Delaware, 103 U.S. 370, held that even if no statute bars blacks from jury service, the practice of never summoning a black person violates the 14th Amendment.
   
• 1906 Rawlins v. Georgia, 201 U.S. 638, held that it was constitutionally acceptable to exclude persons of several occupations, including lawyers, ministers, doctors, engineers, railroad firemen, and dentists, from the jury pool
   
• 1940 Smith v. Texas, 311 U.S. 128, reaffirmed that racial discrimination through systematically excluding blacks from jury service is unconstitutional.
   
• 1946 Thiel v. Southern Pacific Co., 328 U.S. 217, held that it is unconstitutional to exclude a class, such as daily wage earners, from the jury pool
   
• 1946 Ballard v. United States, 329 U.S. 187, held that systematic exclusion of women from the jury pool is unconstitutional.
   
• 1968 Congress enacted the Jury Selection and Service Act (28 U.S.C. 1861), which abolished the “key man” mechanism in the federal system and made many changes designed to increase the representativeness of jury pools.
   
• 1975 Taylor v. Louisiana, 419 U.S. 522, held that a system that automatically included men on the master jury list, but included women only if they opted in, was unconstitutional.
   
• 1979 Duren v. Missouri, 439 U.S. 357, established a three-prong test for when a cross section is unfair: 1) the excluded group is a distinctive one in the community; 2) the representation of this group in the jury pools is not fair and reasonable compared with the proportion of that group in the population; and 3) this under-representation is due to systematic exclusion.
   
• 1986 Lockhart v. McCree, 476 U.S. 162, decided that an attitude held in common—in this instance opposition to the death penalty—does not constitute a distinctive group for purposes of the fair cross section requirement.

From Kim Forde-Mazrui, Jural Districting: Selecting Impartial Juries Through Community Representation, 52 Vand. L. Rev. 353, 356 (1999):

Although racially explicit barriers to minority participation in jury service have been pulled down, many factors continue to disproportionately exclude minorities from jury selection and service. Courts commonly generate lists of potential jurors from voter registration records — a database that tends to underrepresent the minority population residing in a jury district. Also, because racial minorities are statistically more mobile than whites, a greater number fail to receive jury summonses mailed to outdated addresses. Even when they are contacted, minority residents are less likely to complete a jury questionnaire or to respond to a jury summons due to apathy or resentment toward a criminal justice system from which many feel alienated. Moreover, members of racial or ethnic minorities are more likely to be disqualified from service for reasons such as lack of English proficiency or having a criminal record. Minority jurors are more likely to be excused from jury service due to financial hardship, transportation difficulties, or child care responsibilities. Finally, prosecutors exercising peremptory challenges for ostensibly race-neutral reasons disproportionately target racial minorities. The net result is "that in many communities across the country, the percentage of minority veniremembers, trial and grand jurors, and grand jury forepersons is significantly lower than the percentage of minority adults living in the communities from which they are drawn." [quoting noted jury expert Prof. Nancy King].

• Racial quotas, as by dividing jury lists into subsets by race and drawing jurors from each subset
• Litigant choice, for example, after for-cause challenges have been exhausted, allowing each party a set number of “peremptory inclusions” of venirepersons who will serve on the jury
• Geographically-targeted selection, as by sending proportionately more summonses to portions of the jury pool area that are more heavily populated by minorities; or dividing a jury district into twelve subdistricts and seating one juror from each district through standard jury selection procedures

Prof. Forde-Mazrui also points out, though, that some of these procedures may generate constitutional challenges based on the Sixth Amendment right to a jury trial and/or the Equal Protection Clause.
 

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Further reading

Mary Catherine Campbell, 18 Geo. J. Legal Ethics 625 (2005), Current Development 2004-2005 Black, White, And Grey: The American Jury Project And Representative Juries.

John J. Francis, 29 Vt. L. Rev. 297 (2005), Article Peremptory Challenges, Grutter,  and Critical Mass: A Means Of Reclaiming The Promise Of Batson.

Rebecca Porter, 41 Trial 79 (March 2005), News And Trend Jurors Can’t Be Rejected For Religious Appearance, New Jersey Court Rules

Phoebe Haddon, 13 Temp. Pol. & Civ. Rts. L. Rev. (2004), Symposium Does Grutter Offer Courts An Opportunity To Consider Race In Jury Selection And Decisions Related To Promoting Fairness In The Deliberation Process?

Jack R. Goetz, 27 L. A. Lawyer 52 (Jan. 2005), What Lawyers Can Contribute Through Jury Participation

Joshua Wilkenfeld, 104 Colum. L. Rev. 2291 (2004), Note, Newly Compelling: Reexamining Judicial Construction Of Juries In The Aftermath Of Grutter V. Bollinger.

Gerald F. Uelmen, 28 Champion 53 (Dec. 2004), Column, Batson Challenges To Religious Discrimination.

Rose Jade, Voter registration status as a jury service employment test: Oregon's retracted endorsement following Buckley v. American Constitutional Law Foundation, Inc. 39 Willamette L. Rev. 557 (2003).

John P. Bueker, Note, Jury source lists: does supplementation really work? 82 Cornell L. Rev. 390 (1997).

Stephanie Domitrovich, Jury source lists and the community's need to achieve racial balance on the jury, 33 Duquesne L. Rev. 39 (1994)

Nancy J. King , Racial jurymandering: cancer or cure? A contemporary review of affirmative action in jury selection, 68 N. Y. U. L. Rev. 707 (1993).
 

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