Jury Discrimination

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JURY DISCRIMINATION

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 have paid far more attention to the criminal jury. Two distinct provisions of the Constitution of the United States bear upon jury selection: the equal protection clause of the Fourteenth Amendment and the sixth amendment.

In strauder v. west virginia (1879) and neal v. delaware (1880) the Court held that the equal protection clause forbade a state to try a black defendant by a jury from which members of his race had been affirmatively excluded, either by statute or by administrative practice. A federal statute passed shortly after the Civil War made such discrimination a crime.

In Hernandez v. Texas (1954), dealing with the exclusion of Mexican Americans, the Supreme Court extended the Strauder ruling to other ethnic groups. On the other hand, the Court has repeatedly said that the Constitution does not entitle a defendant to a jury that consists in whole or in part of members of his race, or of any other particular composition. The idea of the jury affirmed in these cases is not that it is a microcosm of society at large, but that it is an institution of justice for which participants may properly be required to be qualified. The equal protection clause does not guarantee a particular mix but protects only against improper exclusions.

What exclusions, beyond racial ones, are improper? In Hernandez the Court said that where any group in a community is systematically discriminated against it will need the protection of the Constitution, and added: "Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based upon some reasonable classification, the guarantees of the Constitution have been violated." But what is a reasonable classification? This question is complicated by the fact that the law has traditionally imposed qualifications for jury service which may, or may not, have differential impact on racial or other protected groups. The Court has accordingly upheld, against equal protection attack, qualifications for jury service that are extremely vague and easily susceptible to abuse—"generally reputed to be honest and intelligent … esteemed in the community for their integrity, good character, and good judgment." The burden is on the defendant to show that such qualifications have in fact been abused. Generally speaking, racially disproportionate impact alone is not enough to invalidate a classification under the equal protection clause: actual intent to discriminate must be proved, by direct or circumstantial evidence, as the Court held in washington v. davis (1976). But in jury discrimination, proof of a substantial disproportionality in racial (or sexual) balance between the jury pool and the community at large constitutes a prima facie case of intentional discrimination which the government must rebut. (The Sixth Amendment is more protective than the equal protection clause, in those cases to which it applies, for it has no intent requirement, and the Court held in Duren v. Missouri (1979) that it not only prohibits discrimination but affirmatively requires that the pool from which the jury is drawn contain a "fair cross section" of the relevant community.)

Who may object to an improper exclusion? In Peters v. Kiff (1972), the Supreme Court held that any defendant is entitled to object to improper exclusions from the panel from which his jury is selected, whether or not he is a member of the excluded race. In addition, the Court held in Carter v. Jury Commission of Greene County (1976) that members of the excluded race who wish to serve on juries are entitled to bring independent proceedings to attack their exclusion, for they are deprived of equal protection with respect to an important right of citizenship.

A separate source of constitutional restrictions on jury discrimination is the Sixth Amendment's guarantee of an "impartial jury" in criminal cases. duncan v. louisiana (1968) held that this provision, which originally applied only to the federal government, was "incorporated" within the Fourteenth Amendment's due process clause, and thus was applicable to the states as well. (See incorporation doctrine.) In Taylor v. Louisiana the Court held that the concept of the jury as a "fair cross section of the community" was at the core of the Sixth Amendment and thus applicable to the states. Thus exclusions will be tested not merely under the equal protection clause, which focuses on improper exclusions, but by the affirmative "cross section" principle. The latter principle conceives of the jury not as a group of citizens who are qualified for a task and chosen in a manner free from invidious discrimination, but as a body fairly chosen from a group that represents the community of which it is a part.

But what does "fairly chosen" mean? The federal statute requires that the jury roll reflect a fair cross section of the community, and that the venire be drawn at random from the roll; this scheme meets any standard of fairness. The courts might impose similar standards on the states. But there remains the crucial stage at which the particular jury panel is selected from the venire, and none of the rulings cited above speak to this matter. This selection is made just before trial in a process in which lawyers and the judge cooperate. Certain jurors are excused "for cause," that is, because there are good reasons why they should not sit in the particular case: admitted bias, acquaintance with one of the parties, and so on. In addition, the parties are allowed a limited number of discretioniary, or "peremptory," challenges to other potential jurors. What happens if the prosecution should exercise its peremptory challenges to keep blacks or women off the jury? If that can be done with impunity, the insistence upon fairness at the other stages of jury selection becomes an empty ritual; but how can a discriminatory exercise of peremptory challenges be established? To require the prosecutor to accept any juror of a particular race or class would be unfair to the state, and upset the balance of the selection process. The Supreme Court held in Swain v. Alabama that the use of peremptory challenges against potential minority jurors is not always unconstitutional, but that systematic racial discrimination is impermissible under the equal protection clause. In Batson v. Kentucky (1986) the Court partially overruled Swain, holding that a prosecutor cannot constitutionally use peremptory challenges to exclude potential jurors solely on account of their race. If the circumstances raise an inference of such a use of peremptory challenges, the burden shifts to the state to provide "a neutral explanation" for the exclusions.

The effect of the antidiscrimination holdings has also been undercut by the Supreme Court's decision in apodaca v. oregon (1972) that the states are not required to insist upon unanimous verdicts. (See jury unanimity.) Even if some members of a discriminated-against class make it to the jury, Apodaca means that their views can be disregarded by the majority. On the other hand, the proposition that jurors of the defendant's race or sex will be especially likely to vote for him is an assumption more easily made than proved, and arguably demeaning both to the jurors and to the class to which they belong. And even minority jurors who are outvoted will have a chance to have their views considered. The true basis of the fair cross-section requirement is assurance of the kind of diversity of view and experience that will most advance the kind of collective decision making that, as Harry Kalven and Hans Zeisel show, represents the jury at its best.

As for the distinct institution known as the grand jury, which sits before trial to decide whether the evidence of a particular defendant's guilt is sufficient to justify his indictment, racial discrimination in its selection is also a violation of the equal protection clause. The indicted individual is entitled to the dismissal of his indictment, as the Court held in Carter v. Texas (1900), even though in some sense the defect may be thought to be cured by a properly composed trial jury. The Court has not applied the affirmative "fair cross section" requirements to the state grand jury, nor indeed, as the Court held in hurtadov. california (1884), are the states required to employ the institution of the grand jury at all. Discrimination in the selection of state grand juries remains regulated by the equal protection clause, which forbids only intentional discrimination. The federal statute does apply the "fair cross section" requirement to federal grand juries as well as trial juries.

The continued existence of both the grand jury and the trial jury appears to rest on two assumptions. First, judicial decisions, especially in criminal cases, are assumed to be more just when they are not left to professionals but are also influenced by the views of ordinary people. Second, jury service—again, especially in the criminal process—is seen as popular participation in government. Our constitutional protections against discriminatory selection of jurors are aimed at promoting the ends of justice and the ideal of citizenship.

James Boyd White
(1986)