The Jury as a Community Cross-Section

Abstract

HERE IS hardly a more venerable or cherished institution in Anglo-American law and government than the jury. It is enshrined in the federal constitution and every state constitution and, while the right of jury trial is not available in every class of case and the jury system has been and continues to be attacked as inappropriate for some civil actions and misdemeanors, the jury is destined to enjoy continued life and significance. Important justifications of the jury system are that a community cross-section brings with it the community's conscience, that the representative jury humanizes the law, that the general rule of the law can be maintained by allowing the representative jurors to make exceptions to the rule without destroying it, that the jury makes law and therefore it ought to represent the community?. The idea of a cross-section jury was central for the Supreme Court in Thiel v. So. Pacific Co.2 There, the court reversed a lower court conviction on the ground that the jury was not a cross-section of the community from which it was drawn. Later cases, most notably Fay v. New York,3 have held that there can be no purposeful discrimination against or exclusion of jurors on the basis of social, economic, racial, ethnic or other such considerations but have not held to the cross-section as a constitutional requirement.4 But, even though the cross-section criterion is not a constitutional requirement, it continues to be a most important rationalization of the jury system. What, then, is the likelihood that a jury will be a cross-section of the community from which it is drawn?