Safe Harbors from Fair‐Cross‐Section Challenges? The Practical Limitations of Measuring Representation in the Jury Pool

Abstract

The U.S. Constitution guarantees criminal defendants the right to an impartial jury selected from a jury pool that reflects the demographic composition of the geographic community served by the court. Yet there is little consensus in case law from state and federal courts about the most appropriate method of measuring demographic representation or the degree of underrepresentation that would violate the fair‐cross‐section requirement. Although the U.S. Supreme Court recently addressed these issues for the first time since Duren v. Missouri, its opinion in Berghuis v. Smith did little to settle the questions. In the present article, the authors use demographic information from the U.S. Census Bureau and information about jury operations in state courts from the National Center for State Courts to estimate the potential impact of competing proposals about how to measure demographic representation at different threshold levels of constitutional tolerance. Given the demographic composition of counties in the United States and the size of the jury pool in most courts, the authors find that a bright‐line rule using either of the two most common measures of representation (absolute disparity and comparative disparity) would create “safe harbors” in which the courts in a majority of jurisdictions across the country would become effectively immune from fair‐cross‐section challenges.

Jury Pool Underrepresentation in the Modern Era: Evidence from Federal Courts

“…One common standard across federal circuits and some states is the so‐called 10 percent rule, in which ADs in the jury pool must exceed 10 percent in order to be deemed “not fair and reasonable” (for a review of the use and history of this standard, see U.S. v. Green ). Commentators have noted that this standard logically and problematically countenances the entire absence of racial or ethnic groups that constitute less than 10 percent of the community, a circumstance that exists in the majority of counties in the United States (see “Brief for Social Scientists” 2009; Hannaford‐Agor & Waters ). But even in communities with higher proportions of minority groups, it is not clear how frequently disparities reach this level, even as history offers stark anecdotes (e.g., Swain v. Alabama ).…”

“…Courts sometimes draw on precedent or rulings from other areas (e.g., State v. Kennedy , citing Ramseur v. Beyer :38, which deemed a CD of 40 percent as “borderline”). In the scholarly literature, Hannaford‐Agor and Waters () discuss one conceivable cutoff: a CD of 50 percent, which corresponds to legal standards of “preponderance of the evidence” and “more likely than not” (for a different application of this standard to jury disparity, see Re ). By contrast, Kairys and colleagues () proposed a “maximum [allowable] comparative disparity” of 15 percent, although they did not detail that figure's rationale.…”

“…Between these extremes of very small or very large pool sizes, scholars and litigants have sometimes conceptualized the jury pool as time‐delimited subsets, or panels, of the QJW, such as six months' ( Berghuis v. Smith ; Gastwirth & Pan ) or one year's (Hannaford‐Agor & Waters ) worth of summoned jurors from a given area. Effects may still be difficult to detect under this definition of jury pool, owing to small numbers of minority groups in many areas of the United States (Hannaford‐Agor & Waters ).…”

“…Between these extremes of very small or very large pool sizes, scholars and litigants have sometimes conceptualized the jury pool as time‐delimited subsets, or panels, of the QJW, such as six months' ( Berghuis v. Smith ; Gastwirth & Pan ) or one year's (Hannaford‐Agor & Waters ) worth of summoned jurors from a given area. Effects may still be difficult to detect under this definition of jury pool, owing to small numbers of minority groups in many areas of the United States (Hannaford‐Agor & Waters ). However, with multijurisdictional data on actual levels of underrepresentation, particularly from places that have more than negligible minority populations, it is possible to investigate how often various legal standards would deem disparities “not fair and reasonable,” including how large a jury pool would typically need to be in order to detect a significant effect.…”

“…Studying federal courts is not the same as studying state courts. The federal system holds fewer jury trials and its districts and divisions cross multiple counties, which lowers the proportion of minorities compared to, for example, state courts in urban areas (Hannaford‐Agor & Waters ). This also increases the distances people have to travel to serve, which could affect their responsiveness to summons and qualification questionnaires.…”