Jury Poker: A Statistical Analysis of the Fair Cross-Section Requirement
20 Pages Posted: 29 Jun 2010 Last revised: 27 Sep 2011
Date Written: June 28, 2010
This Commentary compares jury selection with poker in order to explore the statistical principles underlying Sixth Amendment fair cross-section jurisprudence. When distinctive groups are systematically excluded from jury service, defendants suffer an ex ante reduction in their chances of having distinctive group members in their trial juries. As the Supreme Court has recognized, this probabilistic injury is akin to the injury that card players suffer when playing with a “stacked” deck of cards. Moreover, that injury can be measured with the help of the binomial theorem and the “disparity-of-risk” test. After proposing a new 50% threshold for the disparity-of-risk test, this Commentary goes on to explain why the statistical approaches currently used by courts simply do not measure the probabilistic injuries that fair cross-section violations inflict on criminal defendants. A better approach would combine the tests already used by courts in order to approximate the relatively complex disparity of risk test.
Keywords: fair cross-section requirement, Batson, jury selection, Berghuis v. Smith
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