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The American Jury: Can Noncitizens Still Be Excluded?

48 Pages Posted: 29 Apr 2013 Last revised: 30 Apr 2013

Amy R. Motomura

Morrison & Foerster, LLP

Date Written: June 1, 2012


Though noncitizens can be, and frequently are, judged by juries, they are categorically excluded from serving on them. In this Note, I explore the implications of this exclusion from demographic, functional, and doctrinal perspectives. The demographic portrait of noncitizens and minorities in the United States shows that the citizenship requirement for jury service results in the exclusion of significant numbers of residents in certain regions, and that this exclusion is highly skewed by race and ethnicity. The exclusion and resulting decrease in jury diversity has potentially negative effects on the jury’s decisionmaking and its institutional legitimacy, and it excludes many residents who may be integrated into the community for many other purposes. Doctrinally, the exclusion of noncitizens from the jury might be challenged as unconstitutional on several grounds. Although some of the constitutional arguments are unlikely to be persuasive to the courts, I argue that there is room under the current doctrine for claims based on rights of the party before the jury — either under equal protection or the fair cross-section requirement of the Sixth Amendment — to succeed if properly framed.

Keywords: jury, citizenship, equal protection, fair cross-section, Sixth Amendment

Suggested Citation

Motomura, Amy R., The American Jury: Can Noncitizens Still Be Excluded? (June 1, 2012). Stanford Law Review, Vol. 64, No. 6, 2012. Available at SSRN:

Amy R. Motomura (Contact Author)

Morrison & Foerster, LLP ( email )

United States

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