Public Policy Center, University of Nebraska


Date of this Version



Court Review - Volume 47, no. 4 (2011), pp. 96-101


Copyright (c) 2011 American Judges Association. Used by permission.


The Sixth Amendment to the United States Constitution guarantees the right of criminal defendants to “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” An “impartial jury” requires the jury be selected from a representative cross-section of the community. But how is a fair cross-section determined? In Duren v. Missouri, the Supreme Court outlined a three-pronged test defendants must satisfy 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.1

In her article, “Systematic Negligence in Jury Operations: Why the Definition of Systematic Exclusion in Fair Cross Section Claims Must be Expanded,” Paula Hannaford-Agor explains:

[w]ith few exceptions, the cases that have survived the hurdle of Duren’s [first and] second prong[s] ultimately fail because the underrepresentation was not the result of “systematic exclusion.” Courts have consistently held the Constitution cannot hold trial courts accountable for protecting the rights of defendants if they lack the ability to prevent or control the factors that undermine or interfere with those rights.2

For example, caselaw has established that when source lists used to compile master jury lists (especially voter-registration lists) significantly underrepresent minorities, it is not systematic exclusion for two reasons. First, unless those lists were created in a manner that constitutionally discriminates against minorities they presumptively pass constitutional muster. Second, because courts have no authority to require underrepresented groups to register to vote or obtain a state driver’s license, their underrepresentation is not inherent to the juryselection process, but rather is a result of self-exclusion. Hannaford-Agor argues:

By perpetuating the misconception that courts have no responsibility to address causes of underrepresentation other than those inherent in the system itself, caselaw has created a functional safe harbor in which courts can ignore substantial minority underrepresentation in their own jury pools as long as they can plausibly deny actively contributing to the problem.3

Hannaford-Agor argues that despite this lack of incentive created by caselaw, there are in fact many practices that courts can employ to address or mitigate the impact of nonsystematic factors. This article discusses one state’s work to both measure and address the extent to which nonsystematic factors have contributed to the underrepresentation of racial and ethnic minorities in the initial and eligible pools of jurors.

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