Can we calculate fairness and reasonableness? Determining what satisfies the fair cross-section requirement of the Sixth Amendment.

AuthorFitzharris, Colleen P.

The Impartial Jury Clause of the Sixth Amendment requires that the venire from which the state and the defendant draw a twelve-person petit jury be a fair cross-section of the community. The Supreme Court announced a three-prong test in Duren v. Missouri to help courts determine whether there has been a Sixth Amendment violation: (1) whether a distinctive group in the community was excluded; (2) whether the venire was not a fair and reasonable representation of the county population as a whole; and (3) whether that underrepresentation was the result of systematic exclusion. When evaluating the second prong, courts routinely turn to statistical measurements. The four statistical tests that courts have used, including the disparity-of-risk test that the Michigan Supreme Court recently employed in People v. Bryant, fall short of adequately addressing the second prong. This Note proposes two solutions. First, courts should consider the comparative-disparity-of-risk test, borrowed from the medical malpractice loss-of-chance doctrine, as the best measure of whether underrepresentative venires are not fair and reasonable in relation to the community. Second, judges should consider whether a distinctive group in the community has systematically been excluded before turning to the question of whether an underrepresentative venire is fair and reasonable in a given community. After considering whether a distinctive group has been excluded, courts may employ the statistical tests as part of their analysis but should not use thresholds to determine what is fair and reasonable.

TABLE OF CONTENTS INTRODUCTION I. THE FAIR CROSS-SECTION REQUIREMENT A. The Fair Cross-Section Test B. Purposes of the Fair Cross-Section Requirement II. STATISTICAL PROOF OF UNFAIR AND UNREASONABLE VENIRES A. The Absolute-Disparity Test B. The Comparative-Disparity Test C. The Standard-Deviation Test D. The Disparity-of-Risk Test III. A PROPOSAL TO IMPROVE CONSIDERATION OF WHAT "FAIR AND REASONABLE" MEANS FOR THE FAIR CROSS-SECTION REQUIREMENT A. The Comparative-Disparity-of-Risk Test B. A Proposal Without Thresholds 1. Thresholds Should Be Abandoned 2. A Proposal for Analyzing Whether the Underrepresentation in Venires Is Fair and Reasonable in Relation to the Community CONCLUSION APPENDIX INTRODUCTION

For over 16 months, a computer error in Kent County, Michigan, excluded nearly 75% of the county's eligible juror population from jury service. (1) Of the 454,000 Kent County names and addresses on the master list of those eligible for jury service, only 118,000 potential jurors received summonses. (2) Of those people who received jury summonses, the majority of recipients were from zip codes outside the Grand Rapids metro area, excluding a high percentage of the county's black population that lives in Grand Rapids. (3) If the computer program had been working properly and Kent County had mailed jury summonses to the whole population for the first 3 months of 2002, then 322 summonses would have been sent to black people. (4) Instead, only 163 black people received jury summonses--half the expected number. (5) The black population of Kent County as a whole is approximately 8.25% of the county's total population. (6) Four percent of the veniremembers in Kent County were black. (7)

In January 2002, a jury selected from 45 veniremembers (8)--1 black, 1 Latino, and 43 white--convicted Raymond Lee Bryant, (9) a black man. (10) During the selection of the petit jury, (11) Bryant's attorney noticed the venire's skewed composition and made a timely objection, (12) arguing that the venire was not reasonably representative of the community (13) as required by the Sixth Amendment. (14) The trial court denied the motion--a decision that ultimately reached the Michigan Supreme Court. (15)

The Michigan Supreme Court concluded that Bryant had not established a violation of the fair cross-section requirement. (16) Its decision rested on the second prong of the prima facie fair cross-section test: whether the excluded group's representation in the venire was "fair and reasonable in relation to the number of such persons in the community." (17) The court considered four statistical tests to determine whether the representation of black people was fair and reasonable, including a test that no other court had previously applied--the disparity-of-risk test. (18) This Note argues that each of these four prevailing statistical tests for underrepresentation is unworkable, and it proposes two solutions.

Part I examines the history and purpose of the fair cross-section requirement. Part II describes and explains the strengths and weaknesses of the four statistical tests courts use to determine whether a venire is fair and reasonable and argues that the existing approaches are insufficient because they are not broadly applicable and do not comport with the purposes of the fair cross-section requirement. Part III proposes two new approaches. Section III.A argues that courts should consider the comparative-disparity-of-risk test because it is a better measure of the effect of the State's systematic exclusion of a distinctive group. Section III.B argues that relying exclusively on statistical tests and thresholds is inappropriate for determining whether or not venires are underrepresentative in relation to the community. Thus, it recommends that courts first look to whether the defendant has proven that the jury-selection process systematically excluded a distinctive group in the community before considering whether there was fairness and reasonableness. Only then should courts consider the various statistical tests to guide--but not determine--the outcome of a defendant's fair cross-section claim.

  1. THE FAIR CROSS-SECTION REQUIREMENT

    This Part examines the purposes of the fair cross-section requirement that guides the jury-selection process. Section I.A explains the origins of the requirement and how a defendant may bring a prima facie challenge regarding the composition of the venire. Section I.B explores the underlying rationales for the fair cross-section requirement and suggests that any test that courts employ to determine whether there has been a violation of the Sixth Amendment should serve this purpose.

    1. The Fair Cross-Section Test

      The fair cross-section requirement derives from the Constitution's guarantee of an impartial jury. The Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." (19) The Supreme Court has long held that the Impartial Jury Clause requires that the veniremembers be "drawn from a fair cross section of the community." (20)

      To prove a fair cross-section violation, the defendant must demonstrate that a systematic exclusion of a distinctive group resulted in an unreasonable underrepresentation of that group in his venire. (21) The Court has set forth a three-part test, known as the Duren test, to establish a prima facie violation of the fair cross-section requirement:

      (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. (22) Courts usually focus on race and gender when they address the first prong and determine whether the system of summoning jurors excludes a "distinctive group." (23) The second prong, which is the subject of this Note, asks whether the underrepresentation is too large--unfair and unreasonable--in relation to the demographic composition of the community. (24) The Court has provided no further guidance regarding the second prong of the Duren test. (25) Finally, to prove that a distinctive group was "systematically excluded" for the test's third prong, the defendant does not need to show invidious discrimination or discriminatory intent. (26) Rather, the question is whether the cause of the underrepresentation was "inherent in the particular jury-selection process utilized." (27)

      Once the defendant has presented sufficient evidence to satisfy these three prongs and establish a prima facie violation, the state then bears the burden of demonstrating that the policy or procedure resulting in the disproportionate exclusion of a distinctive group is appropriately tailored to a significant state interest. (28)

    2. Purposes of the Fair Cross-Section Requirement

      The justifications for the fair cross-section requirement are intertwined with the benefits of jury trials. The jury is important to the American justice system for three reasons. First, the jury is a check on the government's exercise of power; it is an "inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." (29) Second, it serves three communitarian functions by providing (1) a mechanism to include public participation in the judicial process, (2) a means to educate the public on the workings of the criminal justice system, (30) and (3) a way to ensure the community's confidence in the outcome of criminal trials. (31) Finally, juries express the community's values and the populist viewpoint. (32) The benefits of having diverse viewpoints to express the will of the community are most apparent when the jury votes to acquit a defendant because the jurors believe the law is unjust or unconstitutional. (33) The fair cross-section requirement protects the jury's utility and all of its functions.

      First, where juries are intended to serve as a check on the government's exercise of power, the fair cross-section requirement assures that the state cannot "stack the deck" in its favor by eliminating certain...

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