The Jury as a Community Cross-Section
| DOI | 10.1177/106591296601900112 |
| Author | John H. Vanderzell |
| Published date | 01 March 1966 |
| Date | 01 March 1966 |
| Subject Matter | Articles |
136
THE
JURY
AS
A
COMMUNITY
CROSS-SECTION
JOHN
H.
VANDERZELL
Franklin
and
Marshall
College
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
Jt-
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
rep-
resentative
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
destroy-
ing
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
purpose-
ful
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
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?
When
the
jury
was
composed
of
twelve
good
men
from
the
vicinage
their
rep-
resentative
character
might
have
been
assumed
with
good
reason.
But
when
these
twelve
men
are
supposed
to
be
a
cross-section
of
many
thousands
or
even
a
million
or
more
there
is
room
for
doubt
that
any
jury
selection
system
is
adequate
to
the
task.
The
problem
is
compounded,
of
course,
by
voir
dire
challenges
and
excusals
and
by
selection
criteria
employed
in
establishing
the
jury
roster.
An
acceptable
compromise
with
the
representative
jury
might
be
establishment
of
a
jury
roster
that
is
a
community
cross-section.
It
would
then
be
possible,
at
least,
1
Charles
W.
Joiner,
Civil
justice
and
the
Jury
(Englewood
Cliffs:
Prentice-Hall,
1962),
pp.
77-80.
2
328
U.S.
217;
66
S.Ct.
984
(1946).
3
332
U.S.
261;
67
S.Ct.
1613
(1947).
4
Gorin
v.
U.S.,
313
F.2d.
641
(1963),
First
Circuit;
U.S.
v.
Henderson,
298
F.2d.
522
(1962),
Seventh
Circuit;
certiorari
denied,
369
U.S.
878;
People
v.
Carter,
364
P.2d.
477,
56
C.2d.
549
(1961);
State
v.
Ferraro,
147
A.2d.
478,
146
Conn.
59
(1958),
certiorari
denied,
369
U.S.
880;
State
v.
Dodge,
365
P.2d.
798,
12
Utah
2d.
293
(1961).
This
is
not
a
study
of
discrimination
on
account
of
race
in
jury
selection.
Cases
dealing
with
that
subject
have
recently
been
collected
and
discussed
in
Swain
v.
Alabama,
33LW
4231,
380
U.S.
202
(1965).
As
indicated
in
the
opinion
of
that
case
and
cases
cited
therein
disproportionality
of
a
racial
grouping
in
the
community
and
on
jury
panels
is
not
a
con-
stitutional
infirmity.
A
system
of
jury
selection
is
briefly
described
in
footnote
4
of the
opinion
and
is
criticized
in
the
dissenting
opinion
of
Justice
Goldberg,
at
380
U.S.
228,
230.
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