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Jury: Legal Aspects

Selecting Jurors

Statutory eligibility: some history. At the time of the ratification of the Sixth Amendment, every state limited jury service to men, and every state except Vermont limited jury service to property owners or taxpayers. The early nineteenth century, however, saw the rapid triumph of "universal sufferage," a term used without any sense of irony to describe the enfranchisement of adult white men. Some states declared that everyone qualified to vote also could serve on juries, and in these states, affording the vote to persons without property made them eligible for jury service. In other states, however, eligibility for jury service sometimes lagged behind the right to vote. A few tax-paying and property-holding requirements persisted into the twentieth century. In 1946, however, the Supreme Court invoked its supervisory power over the administration of federal justice and struck down an exclusion of daily wage earners from jury service. The Court refused to "breathe life into any latent tendencies to establish the jury as the instrument of the economically and socially privileged" (Thiel v. Southern Pacific Co., 328 U.S. 217, 223–224 (1946)). By 1946, class-based qualifications like those accepted by the Framers of the Constitution appeared inconsistent with the concept of jury trial.

Especially in the first half of the nineteenth century, formal qualifications did not always determine who served on juries in fact. The members of a group eligible for jury service might never serve, for public officials exercised "very extensive and very arbitrary" powers in summoning jurors (Toqueville, vol. 1, pp. 359–360). Moreover, statutory disqualification did not necessarily mean real disqualification. When qualified jurors failed to appear, statutes permitted court officials to impanel unqualified "bystanders," and in some jurisdictions, the use of bystanders was common.

Although unpropertied white men rapidly made their way onto American juries, the path to the jury box was vastly more arduous for blacks and women. The first blacks ever to serve on an American jury may have been two who sat in Worcester, Massachusetts, in 1860. Even when federal legislation declared blacks eligible to testify in federal courts (1864) and in state courts (1866), proponents of these measures insisted that they would not lead to the inclusion of blacks on juries.

The Fourteenth Amendment's equal protection clause (1868) was not thought initially to give blacks the same political rights as whites—neither the right to sit on juries nor the right to vote. A separate amendment, the Fifteenth (1870), therefore was necessary to extend the franchise to blacks, and this amendment did not guarantee blacks the right to hold office or serve on juries. In 1875, however, a Federal Civil Rights Act declared, "[N]o citizen . . . shall be disqualified for service as a grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude." The supporters of this measure contended, not that Congress had the power to extend "political" rights to blacks, but that nondiscriminatory jury selection would protect the right of black litigants to equal protection of the laws. On the same theory, the Supreme Court held in 1880 that a West Virginia statute limiting jury service to whites violated the equal protection rights of a black defendant (Strauder v. West Virginia, 100 U.S. 303 (1880)).

During Reconstruction, blacks served on juries in most, but not all, Southern states and in Southern federal courts. In some jurisdictions, color-conscious jury selection ensured that juries mirrored the racial composition of the counties in which they sat. In 1879, however, with Reconstruction at an end, Congress authorized discretionary jury selection procedures in the federal courts that were well designed to deny in practice what the act reaffirmed in theory—that no citizen could be disqualified from jury service on account of race.

Although Strauder and the Civil Rights Act of 1875 had effectively (if indirectly) recognized the right of black men to serve on juries, this right remained unenforced for most of a century. Booker T. Washington observed at the end of the nineteenth century, "In the whole of Georgia & Alabama, and other Southern states not a Negro juror is allowed to sit in the jury box in state courts" (quoted in Schmidt, p. 1406). Of the period from the end of Reconstruction to the New Deal, Benno Schmidt declared, "[T]he systematic exclusion of black men from Southern juries was about as plain as any legal discrimination could be short of proclamation in state statutes or confession by state officials" (Schmidt, p. 1406).

Long after Strauder held the statutory exclusion of black men from jury service unconstitutional, the statutory exclusion of women persisted. The first jury service by women in America (and, indeed, in any common law jurisdiction) occurred in the Wyoming Territory in 1870. A new chief justice brought this experiment in gender equality to an end two years later, and women did not serve on Wyoming juries again until the 1940s.

Just as the Fifteenth Amendment afforded black men the right to vote without guaranteeing them the right to serve on juries, the Nineteenth Amendment enfranchised women and did no more. In some states, jury-qualification statutes described jurors in part as "electors" or "voters." When women gained the right to vote in these states, they usually gained the right to serve on juries as well. In other states, however, new legislation was needed, and in 1930, the Executive Secretary of the League of Women Voters complained, "Getting the word 'male' out of jury statutes is requiring something like a second suffrage campaign—laborious, costly, and exasperating" (Kerber, p. 143).

Legislation authorizing women to serve on juries did not always guarantee them the right to serve on the same terms as men. A 1949 Massachusetts statute exempted a woman from serving in any case in which the presiding judge had reason to believe she would "likely . . . be embarrassed by hearing the testimony or discussing [it] in the jury room." Many states provided an exemption from jury service that women could claim on the basis of their sex alone. Indeed, in some of these states, women were not required to claim their exemption; they served on juries only if they registered at the courthouse or took other steps to volunteer.

As late as 1961, when John F. Kennedy was President and Earl Warren Chief Justice, the Supreme Court unanimously upheld the constitutionality of a jury system in which men were drafted while women served only if they volunteered. "[W]oman is still regarded as the center of home and family life," the Court declared. "We cannot say that it is constitutionally impermissible for a State. . .to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities" (Hoyt v. Florida, 368 U.S. 57, 62 (1961)). The Supreme Court effectively overruled this decision in 1975 (Taylor v. Louisiana, 419 U.S. 522 (1975)).

The last major barrier to equal participation in jury service for blacks, other minorities, and women was (and, despite formal rulings to the contrary, still may be) the peremptory challenge. This device is discussed in a later section of this entry.

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Law Library - American Law and Legal InformationCrime and Criminal LawJury: Legal Aspects - Origins, The Scope Of The Right, Jury Size, Unanimity, Vicinage, Selecting Jurors