Safe Harbors from Fair Cross Section Challenges? The Practical Limitations of Measuring Representation in the Jury Pool

Journal of Empirical Legal Studies, Forthcoming

30 Pages Posted: 1 Jul 2010 Last revised: 9 Jul 2011

See all articles by Paula Hannaford Agor

Paula Hannaford Agor

National Center for State Courts; William & Mary Law School

Nicole L. Waters

National Center for State Courts

Date Written: June 30, 2010

Abstract

The US Constitution guarantees criminal defendants the right to an impartial jury selected from a jury pool that reflects the demographic composition of the geographic community served by the court. Yet there is little consensus in case law from state and federal courts about the most appropriate method of measuring demographic representation or the degree of underrepresentation that would violate the Fair Cross Section requirement. Although the US Supreme Court recently addressed these issues for the first time since Duren v. Missouri, its opinion in Berghuis v. Smith did little to settle the questions. In the present paper, the authors use demographic information from the US Census Bureau and information about jury operations in state courts from the National Center for State Courts to estimate the potential impact of competing proposals about how to measure demographic representation at different threshold levels of constitutional tolerance. The authors find that a bright-line rule using either of the two most common measures of representation (absolute disparity and comparative disparity) given the demographic composition of counties in the US and the size of the jury pool in most courts would create “safe harbors” in which the courts in a majority of jurisdictions across the country would become effectively immune from fair cross section challenges.

Keywords: jury, jury pool, absolute disparity, comparative disparity, Duren v. Missouri, Berghuis v. Smith, fair cross section, minority representation

JEL Classification: J11, J78, K00, K19, K4, K41

Suggested Citation

Agor, Paula Hannaford and Waters, Nicole L., Safe Harbors from Fair Cross Section Challenges? The Practical Limitations of Measuring Representation in the Jury Pool (June 30, 2010). Journal of Empirical Legal Studies, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1633034 or http://dx.doi.org/10.2139/ssrn.1633034

Paula Hannaford Agor (Contact Author)

National Center for State Courts ( email )

300 Newport Ave.
Williamsburg, VA 23185
United States

William & Mary Law School ( email )

Williamsburg, VA
United States

Nicole L. Waters

National Center for State Courts ( email )

300 Newport Ave.
Williamsburg, VA 23185
United States

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