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Jury: Legal Aspects - Challenges To The Venire

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A defendant who claims that a jury panel was improperly summoned may file a "challenge to the array" or a "motion to quash the venire." This challenge may be based on statutory grounds, or it may allege improper exclusion under either the fourteenth amendment's equal protection clause or the sixth amendment's right to a jury drawn from a fair cross-section of the community.

Equal protection. Long before Duncan v. Louisiana extended the Sixth Amendment right to jury trial to the states, the Supreme Court and other courts condemned racially discriminatory jury selection in state courts as a violation of the equal protection clause. Shortly after Strauder v. West Virginia invalidated a statute limiting jury service to whites, the Supreme Court recognized that the discriminatory administration of a facially neutral statute also could violate the Constitution (Neal v. Delaware, 103 U.S. 370 (1881)).

The Supreme Court has held that the equal protection clause condemns only purposeful discrimination; a "discriminatory effect" or "discriminatory impact" is insufficient. Nevertheless, proof of a sufficiently discriminatory effect can provide a basis for inferring a discriminatory purpose. In Norris v. Alabama, 294 U.S. 587 (1935), the Court reversed the second conviction of one of the Scottsboro boys (a group of black youths sentenced to death by all-white juries on doubtful evidence that they had raped two young white women). The Court held that proof that blacks constituted a substantial portion of the community and had never or almost never served on juries established a prima facie case of discrimination. Later rulings made clear that a jury commissioner's statement that he did not know any blacks or a denial that he intended to discriminate was not enough to rebut a prima facie case (Hill v. Texas, 316 U.S. 400 (1942); Eubanks v. Louisiana, 356 U.S. 584 (1958)).

The Supreme Court's statistical standards for inferring discrimination became increasingly stringent (see Turner v. Fouche; Alexander v. Louisiana, 405 U.S. 625 (1972)). In Castaneda v. Partida, 430 U.S. 482 (1977), proof that a county's population was 79 percent Mexican-American while only 39 percent of the people summoned for jury service were Mexican-American was sufficient to establish a prima facie case.

Some courts have used color-conscious jury selection methods to ensure the representation of minorities. They hope to increase the likelihood that the jury will represent the community, promote group deliberation, and enhance the public acceptance of jury verdicts. Some of the objections offered to affirmative action in other contexts seem inapplicable to race-conscious efforts to ensure the inclusion of nonwhites on juries (see Alschuler, 1995). A federal Court of Appeals, however, has held one color-conscious jury selection plan unconstitutional (United States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998)).

As noted above, Strauder held that the exclusion of blacks from a jury violated the equal protection rights of black defendants, not the rights of excluded jurors. In Powers v. Ohio, 499 U.S. 400 (1991), however, the Court recognized that racial discrimination in jury selection does violate the equal protection rights of the excluded jurors. The Court held that because these jurors could not effectively challenge discrimination against them, a defendant in a criminal case could assert their rights. A white defendant therefore had "standing" to challenge the exclusion of black jurors.

The fair cross-section requirement. Duncan's application of the Sixth Amendment to the states supplied another basis for challenging discriminatory jury selection in state courts. In a federal case in 1942, the Supreme Court spoke of the jury as a "cross-section of the community" and declared, "[T]he proper functioning of the jury system, and, indeed, or our democracy itself, requires that the jury be a 'body truly representative of the community"' (Glasser v. United States, 315 U.S. 60 (1942)).

In 1975, following Duncan's incorporation of the right to jury trial in the Fourteenth Amendment, the Court invoked Glasser and held that a "fair cross-section requirement" implicit in the Sixth Amendment forbade discrimination that the Court had refused to condemn under the equal protection clause. In Taylor v. Louisiana, 419 U.S. 522 (1975), the Court did not overrule its earlier decision that the exemption of women from jury service was compatible with the equal protection clause, but it held that this exemption did violate the Sixth Amendment.

Despite its label, the "fair cross-section requirement" does not require that juries be a fair cross-section of the community. The Court reiterated in Taylor that defendants are not entitled to a jury of any particular composition. Indeed, the Supreme Court has said that the fair cross-section requirement does not extend to trial juries at all but only to the panels from which the juries are drawn (Lockhart v. McCree, 476 U.S. 162 (1986); Holland v. Illinois, 493 U.S. 474 (1990)). Moreover, the fair cross-section requirement forbids only the "systematic" exclusion of "distinctive groups in the community" (Durden v. Missouri, 439 U.S. 357 (1979)). If the luck of the draw were to yield five consecutive jury panels composed entirely of wealthy Republican women golfers, their selection apparently would not violate the Constitution.

"Systematic" exclusion need not be "purposeful" but apparently must be regular and foreseeable. The exclusion of a "distinctive group" need not be total, but the underrepresented group must be an "identifiable segment playing [a] major role in the community." When the Supreme Court held that women were a "distinctive group," it noted that with their absence from the jury "a flavor, a distinct quality is lost" (Taylor v. Louisiana). Lower federal and state courts have held that young adults and occupational groups are not sufficiently distinctive (La-Fave, Israel, and King, p. 1034). Similarly, people unwilling to impose the death penalty in any case do not qualify as a distinctive group (Lockhart v. McCree).

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