The representative jury requirement: Jury representativeness and cross sectional participation from the beginning to the end of the jury selection process

Abstract

The paper specifically addresses the many ways in which the facially neutral procedures actually fail to secure representative jury pools. Although the Sixth Amendment's fair cross‐section requirement forbids systematic discrimination in the creation of the jury venire and panel, it does not guarantee that the criminal jury will in fact reflect an accurate cross‐section of the community. As a result, not only does the Court fail to focus on nonlegally recognized screening mechanisms and factors such as exemptions, excuses, failure to followup jurors, etc., may affect jury representativeness, but also the Court never examined cross‐sectional representation at the entirety of the jury selection processes, except jury panels and final juries. The first section of this paper presents a brief overview of the constitutional law impacting impartial juries, especially addressing the fair cross‐section doctrine that is the focus of contemporary jury selection procedures. In providing empirical and systematic comparisons of jury participation at each of the distinct jury selection stages encompassing a general population, jury wheels, jury qualified pools, jury eligibles, jury panels, and actual trial jurors, the second section of this paper makes critical analyses of the cumulative effects of screening mechanisms in jury selection. The paper assesses jury compositions by looking at demographic, socio‐economic, and ideological profiles of prospective jurors, illustrating that those jury profiles do not necessarily reflect cross‐sectional representation of the community population at comprehensive stages of the jury selection process. The analytical findings show that unless some deep seated reforms are made to eliminate cumulative effects of selection biases and correct representative imbalances of jury wheels, qualified pools, jury panels, and trial juries, historically underrepresented groups such as racial minorities, the poor, and part‐time employees will continue to be underrepresented on juries, negating the public's shared responsibility for the administration of justice in one of America's most heralded democratic institutions.