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 s-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....


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