Jury Discrimination

• Author: James Boyd White
• Pages: 1509-1511

Page 1509

Jury discrimination was first recognized as a constitutional problem shortly after the CIVIL WAR, when certain southern and border states excluded blacks from jury service. The Supreme Court had little difficulty in holding such blatant RACIAL DISCRIMINATION invalid as a denial of the EQUAL PROTECTION OF THE LAWS guaranteed by the recently adopted FOURTEENTH AMENDMENT. But, beyond such obvious improprieties, what should the principle of nondiscrimination forbid? Some kinds of "discrimination" in the selection of the jury are not bad but good: for example, those incompetent to serve ought to be excused from service, whether their incompetence arises from mental or physical defect, from demonstrably bad character, or from bias. No one has seriously argued that American jury service ought to be determined wholly by lot, as it was among the citizens of Athens. In addition, it has been the uniform policy of American jurisdictions to excuse from service some who are competent, but whose service would work a hardship on them or others: doctors, ministers, and parents who care for small children have been exempted from service on such grounds.

The history of the constitutional law regulating jury composition has been a story of expanding and compulsory democratization. In our early national history property and voting qualifications were common, and women were systematically excluded or exempted from jury service. At COMMON LAW, indeed, special juries were sometimes employed: a jury of merchants to decide certain kinds of mercantile questions, for example, or in the trial of an ALIEN, a jury half of which spoke his language. Even in the early and middle decades of this century, the Supreme Court upheld against constitutional attack a BLUE RIBBON JURY system, by which jurors were selected supposedly for intelligence and character in a way that resulted in the vast overrepresentation of professional and business classes, in Fay v. New York (1947); a highly discretionary and easily abused "key man" system for selecting potential jurors by consultation with community leaders, in SWAIN V. ALABAMA (1965); and the voluntary exemption of women from jury service, in Hoyt v. Florida (1961). At present, however, a federal statute requires that the federal jury be drawn from a pool that represents a "fair cross section of the community," and a similar constitutional standard has been imposed by the Supreme Court on the states as well, in TAYLOR V. LOUISIANA (1975).

There are normally three stages in the selection of an American jury at which improper discrimination may occur: the establishment of the master list of all persons eligible for jury service within the JURISDICTION of a particular court (this is called the jury roll); the selection of the panel of potential jurors (called the venire) who will be asked to appear at the courthouse; and the selection from that panel of those who will actually serve on a jury in a particular case or set of cases. The question of discrimination can arise in both civil and criminal cases, but the courts...