Abstract

This Article argues that in the context of fair cross section jurisprudence, courts' ability to control, or at least greatly mitigate, the extent of minority underrepresentation due to nonsystematic factors is greatly underestimated. Over the past forty years, courts have implemented a number of effective practices to ensure an inclusive and representative master jury list and to minimize undeliverable, nonresponse and failure-to-appear, and excusal rates. All of these techniques demonstrably improve the demographic representation of the jury pool. The vast majority of courts employ these techniques on a routine basis. By perpetuating the misconception that courts have no responsibility to address causes of underrepresentation other than those inherent in the system itself, caselaw has created a functional safe harbor in which courts can ignore substantial minority underrepresentation in their own jury pools as long as they can plausibly deny actively contributing to the problem. Indeed, by exempting minority underrepresentation caused by nonsystematic factors from constitutional enforcement, these cases actually provide some disincentive for some courts to implement effective jury management practices in their routine summoning and qualification procedures.

Part II provides a brief overview of contemporary fair cross section jurisprudence with an in-depth examination of several examples of systematic and nonsystematic exclusion that have formed the basis of various jury challenges in recent years. Part III describes a number of proven jury management practices that are highly effective remedies for many of the nonsystematic factors associated with minority underrepresentation. Part IV proposes a negligence theory of jury system management and argues that if a court's failure to manage its jury system in a reasonably effective manner contributes to legally insufficient minority representation in the jury pool, the court's negligent jury management is itself systematic exclusion. Finally, the Article concludes with some caveats about the reach of this theory due to limited court resources and the legal deference given to state policymakers with respect to qualification, exemption, and excusal requirements for jury service.

This abstract has been taken from the author's introduction.

Document Type

Article

Publication Date

2011

Publication Information

59 Drake Law Review 761-797 (2011)

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