Jury
Selection and the
Cross-Sectional
Ideal
by
J. Abramsson from We,
The Jury
IN THE
UNITED STATES TODAY,
it is common to
describe the ideal jury as a "body truly representative of the
community." To practice this ideal, all jurisdictions rely on a
computerized version of the oldest and most direct of democratic
selection
methods: the random drawing of names by lot. The basic principle behind
the
lottery is that the pool of persons from which actual juries are drawn
must
approximate a fail; representative cross section of the local
population.
Because of the luck of the draw, as well as uneven patterns of excuses
and
challenges, the particular jury a person gets may not itself form
a cross
section of the community. But so long as jurors are summoned
randomly from an
initially representative list, the democratic nature of jury membership
is said
to be preserved.
The cross-sectional jury is so
familiar to us today that we forget how modem is its triumph. As
recently as
1960, federal courts still impaneled blue-ribbon juries. The theory was
that
justice required above average levels of intelligence, morality, and
integrity.
In place of random selection, therefore, jury commissioners
typically
solicited the names of "men of recognized intelligence and probity"
from notables or "key men" of the community. A 1967 survey of federal
courts showed that 60 percent still relied primarily on this so-called
key man
system for the names of jurors.
In 1968, with the Jury Selection
and Service Act, Congress abandoned this
system for federal courts, declaring it henceforth to be "the policy of
the United States
that all litigants in Federal courts entitled to trial by jury shall
have the
right to grand and petit juries selected at random from a fair cross
section of
the community."" In 1975, the Supreme
Court extended the ideal of the cross-sectional jury to state courts as
well,
ruling that the very meaning of the constitutional guarantee of
trial by an
impartial jury required that the jury pool be a mirror image or
microcosm of
the eligible community population.
Both Congress and the Court
justified the new theory as a remedy for the discrimination practiced
under the
guise of searching for elite jurors. The slippery and subjective
standards for
jury eligibility under the elite model provided convenient cover for
systematic
exclusion of certain people, African-Americans in particular; they
also
allowed for the perpetuation of the all-white jury in the South
nearly a
century after the Supreme Court outlawed, in theory, such juries. The
immediate
task of the cross-sectional reform was to strip away such
discrimination,
making all persons equally eligible for jury duty who met minimum
and objective
standards of citizenship, age, residency, and literacy.
But the ideal of the cross-sectional
jury speaks to more than the abolition of intentional
discrimination in jury
selection. To say, as the Supreme Court did in its landmark 1975 decision,
that only "representative" juries
are "impartial" juries is to suggest a new way of thinking about how
to make jurors capable of impartial justice-a way that stands the
classical
view of impartiality on its head.
Common law defined
an impartial juror as genuinely capable of bracketing his own interests
and
preconceptions and of deciding the case solely upon evidence presented
in open
court:
In the words of the great common-law
jurist Lord Coke, "He that is of a jury, must be liber homo, that is, not only a freeman and not
bond, but also one that hath such freedome of mind as he stands
indifferent as
he stands unsworne." This is a demanding notion of impartiality,
requiring
jurors to be independent not only from the dictates of others but also
from
their own opinions and biases. It requires jurors to achieve "a mental
attitude of appropriate indifference.
The ideal of the cross-sectional
jury rejects this common-law view of impartial deliberation. It sees
individual
jurors as inevitably the bearers of the diverse perspectives and
interests of
their race, religion, gender, and
ethnic background. Deliberations are considered impartial, therefore,
when group differences are not eliminated but rather invited. Embraced,
and
fairly represented. To eliminate potential jurors on the grounds that
they will
bring the biases of their group into the jury room is, we are told, to
misunderstand the democratic task of the jury, which is nothing else
than to
represent accurately the diversity of views held in a
heterogeneous society
such as the United States. If the jury is balanced to accomplish
this
representative task, then as a whole it will be impartial, even though
no one
juror is. The jury will achieve the "overall" or "diffused"
impartiality that comes from balancing the biases of its members
against each
other....
In the earliest
cases describing the jury as a representative body-cases dating to
194O-the
drive to democratize jury membership was justified in terms of the
contribution
persons from different walks of life would make to realizing the
traditional
goal of informed and impartial deliberation. The worthy vision was
never one of
the races and sexes voting their preconceived preferences through
their juror
representatives. Rather, the democratic aim of the cross-sectional jury
was to
enhance the quality of deliberation by bringing diverse insights to
bear on the
evidence, each newly evaluating the case in light of some neglected
detail or
fresh perspective that a juror from another background offered the
group.·
The noble purpose of such a jury was
also to silence expressions of group prejudice and to ratchet up the
deliberations to a higher level of generality. Jurors wishing to
be persuasive
would now have to abandon arguments that depended on the
particular prejudices
or perspectives of their own kind. Their arguments would have to
resonate
across group lines.
More recently, courts have begun to
sever the connection between the deliberative and representative
features of
the jury and to justify the cross-sectional jury in terms borrowed from
the
world of interest group politics. Cases and law reviews are full of
language
about the mythical nature of impartial deliberation as the common law
conceived
it and about the ubiquitous presence of subtle bias embedded in group
identity
in America.
The new purpose of the cross section becomes to give voice or
representation to
competing, group loyalties, almost as if a juror had been sent by
constituents
to vote their preferred verdict. Such 'a description of the
representation we
expect from jurors might explain why we call the jury a democratic
institution.
But it is a vision of democracy so tied to different groups voting
their
different interests that it cannot inspire confidence in the jury
as an
institution of justice. This is the predicament we find ourselves in
today.
The debate over forging
representative juries is important in its own regard. But it also joins
the
broader debates about the meaning of justice, in a multiethnic society.
On one
side of this debate stand those who hold fast to the ideal of a
color-blind
Constitution and a world in which race, sex, and national origin are
irrelevant
to legal rights and responsibilities. On the other side are those
who argue
that justice requires more than prohibiting discrimination, that it
requires
affirmative results. Those on the latter side stress that democracy
does not
reach its ideals if blind procedures leave significant groups
underrepresented
in our schools, police forces, and elected and appointed offices.
Beyond ending
discrimination, they impose upon government and
government-assisted programs
an obligation to achieve representation for minority and other groups
in
proportion to their numbers in the population.
These arguments over group-blind
versus group-conscious assignments spill over into the world of
the jury. The
leading question is whether we have democratized jury selection by
accomplishing the so-called negative goal of not
discriminating. Or does the principle of the cross-sectional jury go
beyond
traditional color-blind norms, to impose on jury commissioners the
affirmative
duty to achieve demographic balance on the jury rolls? The difference
between
these two approaches is crucial....