No. 08-1402

IN THE

Supreme Court of the United States____________________MARY BERGHUIS,

Petitioner,

v.DIAPOLIS SMITH,

Respondent._____________________________

On Writ of Certiorari to theUnited States Court of Appeals

for the Sixth Circuit_____________________________

BRIEF OF THE NATIONAL ASSOCIATION OFCRIMINAL DEFENSE LAWYERS, THE AMERICAN

CIVIL LIBERTIES UNION AND THE NATIONALJURY PROJECT AS AMICI CURIAE IN SUPPORT

OF RESPONDENT DIAPOLIS SMITH________________________

JOSHUA DRATEL

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1660 L ST., N.W.12TH FLOOR

WASHINGTON, DC 20036(202) 872-8600

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 BROAD STREET

NEW YORK, NY 10004(212) 549-2500

CLIFFORD M. SLOAN

Counsel of RecordNEIL LOMBARDO

RAY D. MCKENZIE

PATRICK HAGGERTY

1440 NEW YORK AVE., N. W.WASHINGTON, D. C. 20005(202) 371-7000

THOMAS M. MEYER

NATIONAL JURY PROJECT

2831 TELEGRAPH AVE.OAKLAND, CA 94609(510) 524-6568

Attorneys for Amici Curiae

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................. iii

STATEMENTS OF INTEREST ............................. 1

INTRODUCTION AND SUMMARY ..................... 2

ARGUMENT............................................................. 4

I. The Requirement of A RepresentativeJury Is a Fundamental ConstitutionalValue. ................................................................ 4

II. The Importance of a Representative JuryHas Deep Historic Roots............................. 12

III. The Sixth Amendment's Fair Cross-Section Requirement Protects CrucialSocietal and Governmental Interests...... 19

A. The Fair Cross-Section RequirementSupports the Impartiality of theCriminal Justice System....................... 19

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B. The Fair Cross-Section RequirementReinforces Crucial Democratic Goals.................................................................... 24

C. The Fair Cross-Section RequirementBolsters Public Confidence in the JurySystem....................................................... 29

D. The Fair Cross-Section RequirementRemains Necessary. ............................... 32

IV. Principles of Stare Decisis StronglySupport The Fair Cross-SectionRequirement. ................................................ 35

CONCLUSION ....................................................... 38

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TABLE OF AUTHORITIES

CASES

Arizona v. Rumsey, 467 U.S. 203 (1984)..........36

Ballew v. Georgia, 435 U.S. 223 (1978) ...........22

Blakely v. Washington, 542 U.S. 296(2004)...........................................................25

Brown v. Allen, 344 U.S. 443 (1953)..................9

Commonwealth v. Soares, 387 N.E.2d499 cert. denied, 444 U.S. 881 (Mass.1979) ............................................................22

Duncan v. Louisiana, 391 U.S. 145(1968).......................................................9, 28

Duren v. Missouri, 439 U.S. 357 (1968).......2, 10

Garcia v. San Antonio MetropolitanTransit Authority, 469 U.S. 528(1985)...........................................................37

Georgia v. McCollum, 505 U.S. 42 (1992)...............................................................20, 30

Glasser v. United States, 315 U.S. 60(1942).............................................................8

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Hernandez v. Texas, 347 U.S. 475 (1954).....................................................................26

Hilton v. South Carolina PublicRailways Commission, 502 U.S. 197(1991)...........................................................35

Holland v. Illinois, 493 U.S. 474 (1990) ....11, 31

Lockhart v. McCree, 476 U.S. 162 (1986).....................................................................31

Ex parte Milligan, 71 U.S. 2 (1866) .................28

Norris v. Alabama, 294 U.S. 587 (1935)..........26

Parklane Hosiery Co. v. Shore, 439 U.S.322 (1979) ....................................................27

People v. Hubbard, 552 N.W.2d 493(Mich. Ct. App. 1996) ..................................32

People v. Wheeler, 583 P.2d 748 (Cal.1978) ............................................................22

Peters v. Kiff, 407 U.S. 493 (1972) ...................24

Powers v. Ohio, 499 U.S. 400 (1991)....12, 25, 29

In re Rhymes, 170 Cal. App. 3d 1100(1985)...........................................................32

Smith v. Texas, 311 U.S. 128 (1940)............7, 26

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Strauder v. West Virginia, 100 U.S. 303(1879).......................................................7, 20

Taylor v. Louisiana, 419 U.S. 522 (1975)............................................................. passim

Thiel v. Southern Pacific Co., 328 U.S.217 (1946) ................................................8, 26

Thompson v. Utah, 170 U.S. 343 (1898)..........18

United States v. Jackman, 46 F.3d 1240(2d Cir. 1995)...............................................32

United States v. Osorio, 801 F. Supp.966 (D. Conn. 1992).....................................32

Vasquez v. Hillery, 474 U.S. 254 (1986) ..........35

Williams v. Florida, 399 U.S. 78 (1970) ....10, 35

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V .........................................6

U.S. Const. amend. VI..............................2, 6, 19

U.S. Const. amend. VII ......................................6

MISCELLANEOUS

4 William Blackstone, Commentarieson the Laws of England (1769)...................18

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Albert W. Alschuler & Andrew G.Deiss, A Brief History of theCriminal Jury in the United States,61 U. Chi. L. Rev. 867 (1994)........................4

Alexis de Tocqueville, Democracy inAmerica (Knopf 1945) .................................25

Andrew D. Leipold, ConstitutionalizingJury Selection in Criminal Cases: ACritical Evaluation, 86 Geo. L. J.945 (1998) ....................................................27

Charles L. Wells, The Origin of thePetty Jury, 27 L. Q. Rev. 347 (1911)... passim

Developments in the Law—Race andthe Criminal Process, 101 Harv. L.Rev. 1472 (1988)..........................................21

Douglas L. Colbert, Challenging theChallenge: Thirteenth Amendmentas a Prohibition Against the RacialUse of Peremptory Challenges, 76Cornell L. Rev. 1 (1991) ..............................21

Hiroshi Fukurai & Darryl Davies,Affirmative Action in Jury Selection:Racially Representative Juries,Racial Quotas, and AffirmativeJuries of the Hennepin Model andthe Jury de Medietate Linguae, 4 Va.J. Soc. Pol'y & L. 646 (1997) .................31, 32

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Jack P. Lipton, Racism in the Jury Box:The Hispanic Defendant, 5 HispanicJ. Behav. Sci. 275 (1983).............................21

Jeffrey Abramson, We, the Jury: TheJury System and the Ideal ofDemocracy(1994).....................................................22, 23

J.L. Bernard, Interaction Between theRace of the Defendant and That ofJurors in Determining Verdicts, 5Law & Psychol. Rev. 103 (1979) .................21

John B. Ashby, Juror Selection and theSixth Amendment Right to anImpartial Jury, 11 Creighton L. Rev.1137 (1978) ......................................22, 25, 31

Jon Van Dyke, Jury SelectionProcedures: Our UncertainCommitment to RepresentativePanels (1977) ....................................... passim

Leslie Ellis & Shari Seidman Diamond,Race, Diversity, and JuryComposition: Battering andBolstering Legitimacy, 78 Chi.-KentL. Rev. 1033 (2003) ...............................29, 31

Lloyd E. Moore, The Jury: Tool of Kings,Palladium of Liberty (1973)................ passim

Nancy J. King, The Effects of Race-Conscious Jury Selection on Public

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Confidence in the Fairness of JuryProceedings: An Empirical Puzzle,31 Am. Crim. L. Rev. 1177 (1994) ..............31

Nebraska Minority Justice Committee,Representative Juries: Examiningthe Initial and Eligible Pool ofJurors (Dec. 2008).......................................34

Paula L. Hannaford-Agor & G. ThomasMunsterman, Third Judicial Circuitof Michigan Jury SystemAssessment, Final Report (NationalCenter for State Courts, Aug. 2,2006) ............................................................33

Report of the Alaska Supreme CourtAdvisory Committee on Fairness andAccess (Oct. 31, 1997)..................................34

Robert Walters & Mark Curriden, AJury of One's Peers? InvestigatingUnderrepresentation in Jury Venires,43 Judges J. 17 (2005).................................33

Walters, et al., Jury of Our Peers: AnUnfulfilled Constitutional Promise,58 SMU L. Rev. 319 (2005).........................25

Samuel R. Sommers, On RacialDiversity and Group DecisionMaking: Identifying Multiple Effectsof Racial Composition on JuryDeliberations, 90 J. Personality &Soc. Psychol. 597 (2006)..............................21

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Sheri Lynn Johnson, Black Innocenceand the White Jury, 83 Mich. L. Rev.1611 (1985) ..................................................21

South Dakota Equal JusticeCommission, Final Report andRecommendations (2006) ............................34

Theodore F.T. Plucknett, A ConciseHistory of the Common Law, (Book 1)(5th ed. 1956).........................................15, 16

Toni M. Massaro, Peremptories orPeers?—Rethinking SixthAmendment Doctrine, Images, andProcedures, 64 N.C. L. Rev. 501(1986).................................................4, 27, 31

Twelve Good Men and True: TheCriminal Trial Jury in England,1200-1800 (J.S. Cockburn andThomas A. Green eds., 1988)..........14, 17, 18

Vikram David Amar, Jury Service asPolitical Participation Akin toVoting, 80 Cornell L. Rev. 203(1994). ..........................................................26

W.S. McKechnie, Magna Carta: ACommentary (2d ed. 1914) ..........................18

William Forsyth, History of Trial byJury (1852) ..................................................13

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The National Association of Criminal DefenseCriminal Lawyers ("NACDL"), the American CivilLiberties Union ("ACLU"), and the National JuryProject ("NJP") respectfully submit this brief asamici curiae in support of respondent DiapolisSmith.1

STATEMENTS OF INTEREST

The NACDL, founded in 1958, is a non-profitcorporation with more than 12,000 direct membersnationwide and in 28 countries, and more than40,000 affiliate members in 90 state, provincial andlocal affiliate organizations. NACDL membersinclude private criminal defense attorneys, publicdefenders, military defense counsel, law professors,and judges.

The NACDL is particularly dedicated toadvancing the proper, efficient, and justadministration of justice, including issues involvingjury composition and ensuring that juries arecomprised of a fair cross-section of the community.In furtherance of its objectives, the NACDL filesapproximately fifty amicus curiae briefs each year,

1 Pursuant to Rule 37.6, counsel for amici curiae states thatno counsel for a party authored this brief in whole or inpart, and no counsel or party made a monetary contributionintended to fund the preparation or submission of this brief.No person other than amici curiae, its members, or itscounsel made a monetary contribution to its preparation orsubmission. Pursuant to the letters filed with the Clerk,amici curiae have permission of all parties to file.

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in this Court and others, addressing a wide varietyof criminal justice issues.

The ACLU is a non-profit, nonpartisan nationalorganization. The ACLU is dedicated to preservingthe principles of liberty and equality embodied in theConstitution and the civil rights laws of this country.

The NJP is a non-profit corporation establishedin 1975 for the purpose of studying all aspects of theAmerican jury system and maintaining andstrengthening that system. The NJP has offices inPhiladelphia, Pennsylvania, Minneapolis, Minnesota,and Oakland, California, providing consultative andeducational services to attorneys and social scienceprofessionals in criminal and civil litigation infederal and state courts throughout the UnitedStates.

INTRODUCTION AND SUMMARY

The Sixth Amendment guarantees that, "[i]n allcriminal prosecutions, the accused shall enjoy theright to . . . an impartial jury of the State anddistrict wherein the crime shall have beencommitted . . . ." U.S. Const. amend. VI. Thisrequirement of "an impartial jury" is a coreAmerican constitutional value. As this Courtexplained more than three decades ago, "animpartial jury" requires that the jury berepresentative of the community—that it "must bedrawn from a fair cross-section of thecommunity . . . ." Taylor v. Louisiana, 419 U.S. 522,537 (1975); Duren v. Missouri, 439 U.S. 357 (1979).This recognition implements the Sixth Amendment's

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impartial jury guarantee; it furthers paramountconstitutional protections; it promotes accurate,unbiased, and reliable adjudications that instillconfidence in our criminal justice system; it has deephistoric roots; and it has worked well as a sound rulein the administration of criminal justice.

In support of Petitioner, amicus Criminal JusticeLegal Foundation now asks this Court to jettisonsettled precedent and eviscerate the SixthAmendment's "impartial jury" guarantee byoverruling Taylor and Duren. Such a radical andabrupt departure is neither necessary norappropriate. It would fly in the face of the SixthAmendment's fundamental protection, it wouldinjure important constitutional values, and it wouldharm the administration of criminal justice byundermining both the jury's legitimacy and thecorresponding legitimacy of its verdicts. Taylor andDuren are sound and important precedents; they areessential to the Sixth Amendment, and should not berejected or abandoned by this Court.

For the reasons stated by Respondent, the SixthCircuit's decision should be affirmed. Amici submitthis brief to emphasize that Taylor and Duren, andthe fair cross-section requirement they explicate, areindispensable in implementing the fundamentalconstitutional guarantee of "an impartial jury."

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ARGUMENT

I. The Requirement of A Representative JuryIs a Fundamental Constitutional Value.

From the nation's earliest days, Americans havebelieved the right to a representative jury to be ofthe highest importance.

Even before achieving independence, Americansemphasized this principle. Various forms of theright to a trial by one's peers were included infoundational documents for the colonies. 2 TheDeclaration of Independence, moreover, lists thedenial of trial by jury as one of the abuses compellingseparation from England. See Albert W. Alschuler &Andrew G. Deiss, A Brief History of the CriminalJury in the United States, 61 U. Chi. L. Rev. 867, 875(1994).

The First Continental Congress, in turn, stressedthe importance of the jury by declaring that "therespective colonies are entitled to . . . the great and

2 The right to a jury trial was guaranteed by King James I'sInstructions for the Government of the Colony of Virginiadrafted in 1606; the Massachusetts Body of Libertiesadopted in 1641; the Concessions and Agreements of WestNew Jersey of 1677; the Frame of Government ofPennsylvania of 1682; the Declaration of Rights of the FirstContinental Congress of 1774; the Constitution of Virginiaof 1776; the Declaration of Independence, and the firstconstitutions of most states. Toni M. Massaro,Peremptories or Peers?—Rethinking Sixth AmendmentDoctrine, Images, and Procedures, 64 N.C. L. Rev. 501, 507-08 (1986).

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inestimable privilege of being tried by their peers ofvicinage, according to the court of [common] law."Jon Van Dyke, Jury Selection Procedures: OurUncertain Commitment to Representative Panels 6(1977) (quoting Declaration of Rights of theContinental Congress (1774), Article 5 (reprinted inCharles C. Tansill, ed., House Document No. 398,69th Congress, 1st Session (Washington:Government Printing Office, 1927), p. 3)).

The Constitution's ratification debates reflect thevital necessity of ensuring that juries berepresentative of the community. In the run-up tothe pivotal Virginia ratification debate, Richard Leeemphasized the role of the jury as a democraticinstitution:

It is essential in every free country thatcommon people should have a part andshare of influence, in the judicial aswell as in the legislative department. . . .The trial by jury in the judicialdepartment, and the collection of thepeople by their representatives in thelegislature, are those fortunateinventions which have procured forthem, in this country, their trueproportion and influence, and thewisest and most fit means of protectingthemselves in the community. Theirsituation as jurors and representatives,enables them to acquire informationand knowledge in the affairs andgovernment of the society, and to comeforward, in turn, as the centinels andguardians of each other.

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Van Dyke, supra, at 46-47 (quoting Richard HenryLee, "Letters of a Federal Farmer", Letter IV, Oct. 12,1787, in Pamphlets on the Constitution of the UnitedStates 316 (Paul Leicester Ford ed., 1968)).

The explicit inclusion of the right to "an impartialjury" as a core guarantee in the Bill of Rights vividlydemonstrates the importance of this principle. The"impartial jury" right is included in the sameAmendment that provides such fundamentalprotections as "a speedy and public trial," the rightto counsel, and the right to confront one's accusers;like those protections, it reflects a quintessentialAmerican value. Along with those other SixthAmendment rights, an impartial jury enhances theaccuracy and reliability of verdicts, as well as thepublic's confidence in the fairness of proceedings.

Indeed, the role of juries was deemed so essentialto our system of government that guarantees ofvarious aspects of trial by jury were referenced inthree separate amendments in the Bill of Rights.See U.S. Const. amends. V (right to be indicted by agrand jury in felony cases), VI (right to an impartialjury in criminal cases) and VII (right to a jury incivil matters).

Soon after ratification of the Bill of Rights, theparamount role of impartial juries in the Americansystem of justice and democracy continued to beemphasized. Thomas Jefferson, for example, raisedthe topic in his first inaugural address. Jeffersonstressed that "trials by juries impartially selected"represent one of the cornerstones of our system. VanDyke, supra, at 46-47 (quoting Messages and Papers

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of the Presidents 323-24 (James D. Richardson, ed.1876)) (emphasis added).

Long before Taylor and Duren, this Courtemphasized the importance of representative juriesas an essential element of the Sixth Amendment'simpartial jury guarantee. In Strauder v. WestVirginia, 100 U.S. 303 (1879), for example, the Courtdefined the criminal jury as a body "composed of thepeers or equals of the person whose rights it isselected or summoned to determine; that is, of hisneighbors, fellows, associates, persons having thesame legal status in society as that which he holds."Id. at 308.

This Court has consistently explained that animpartial jury is, of necessity, a broadlyrepresentative one. In Smith v. Texas, 311 U.S. 128(1940)—a case decided 35 years before Taylor—thisCourt addressed a claim that African Americans hadintentionally been excluded from grand juries. Inupholding the challenge, the Court emphasized thehistorical basis for the requirement that a jury berepresentative of the community: "It is part of theestablished tradition in the use of juries . . . that thejury be a body truly representative of thecommunity." Id. at 130.

The Court explained that it is only when juriesrepresent the entire community that they canfunction as true "instruments of public justice." Id.Stressing the crucial role that representative juriesplay in our society, the Court added that "theexclusion from jury service of otherwise qualifiedgroups not only violates our Constitution . . . but isat war with our basic concepts of a democratic

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society and a representative government." Id. Thisanalysis of grand juries, of course, applies to trialjuries with at least equal force.

The Court renewed and expanded itscommitment to representative juries only two yearslater. In Glasser v. United States, 315 U.S. 60 (1942),the Court confronted a claim by a defendant that hehad been denied his Sixth Amendment right to animpartial jury. The defendant claimed that the onlywomen on the venire were members of the League ofWomen Voters who had attended "jury classes whoselecturers presented the views of the prosecution." Id.at 83-84. The Court condemned "the deliberateselection of jurors from the membership of particularprivate organizations" because it rendered the jury"the organ of a special class," and "openly partisan."Id. at 86. Significantly, the Court also expresslyrecognized that drawing potential jurors from "across-section of the community" is the only suremethod of guaranteeing the right to an impartialjury. Id. (emphasis added). The Court proceeded tonote that "a 'body truly representative of thecommunity'" is vital to the proper functioning of thejury system, and it characterized "trial by arepresentative group" as an "essential right." Id.

Four years later, the Court again affirmed itsbelief that only juries drawn from a cross-section ofthe community pass constitutional muster. In Thielv. Southern Pacific Co., 328 U.S. 217 (1946), theCourt addressed a civil litigant's challenge to thejury selection procedures in federal court. Id. at 219.Speaking in terms equally applicable to criminaljuries, the Court explained that "[t]he Americantradition of trial by jury, considered in connection

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with either criminal or civil proceedings, necessarilycontemplates an impartial jury drawn from a cross-section of the community." Id. at 220 (emphasisadded).

The Court recognized that individual juriescannot be expected to include representatives ofevery group in a community, but emphasized that"those eligible for jury service are to be found inevery stratum of society," and that to disregard thisimperative would "open the door to class distinctionsand discriminations which are abhorrent to thedemocratic ideals of trial by jury." Id.

In subsequent opinions, the Court continued tovalidate the cross-section requirement as anessential element of an impartial jury. In Brown v.Allen, 344 U.S. 443 (1953), for example, the Courtconsidered a challenge to a state-court criminalconviction on equal protection and due processgrounds. Id. at 465. The defendant argued that thestate's practice of developing jury lists solely fromtax records constituted discrimination because it ledto the under-representation of African Americans.Id. at 467-68.

In rejecting the claim, the Court explicitlyrecognized that state-devised lists for jury servicemust "reasonably reflect[] a cross-section of thepopulation suitable in character and intelligence for[jury] duty." Id. at 474. Like other decisions of thisCourt, Brown thus makes clear that the cross-sectionrequirement is integral to ensuring a fair trial.

After it found the Sixth Amendment applicable tothe states in Duncan v. Louisiana, 391 U.S. 145(1968), this Court continued to emphasize the

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importance of the cross-section requirement. Forexample, in Williams v. Florida, 399 U.S. 78 (1970),the Court rejected a challenge to Florida's practice ofempanelling criminal juries of only six members. Indoing so, however, the Court once again stressedthat petit juries must "provide a fair possibility forobtaining a representative cross-section of thecommunity." Id. at 100.

Against this background, the Court in 1975confronted a constitutional challenge based on asystem that had the effect of excluding most womenfrom jury eligibility. Taylor, 419 U.S. at 524.Justice White's opinion for the Court explained that,under this Court's existing precedents, "the selectionof a petit jury from a representative cross-section ofthe community is an essential component of theSixth Amendment right to a jury trial," id. at 528,and thus the exclusion was unconstitutional.

The Court further explained that the fair cross-section requirement is "fundamental" and has "asolid foundation," and added that the SixthAmendment guarantee is not protected "if the jurypool is made up of only special segments of thepopulace or if large, distinctive groups are excludedfrom the pool." Id. at 530. The Court was notbreaking new ground; rather, it was enforcing thecentral Sixth Amendment guarantee of "an impartialjury," which ensures that the jury is representativeof the community.

Similarly, in Duren v. Missouri, 439 U.S. 357(1979), the Court again reaffirmed the importance ofa jury drawn from a fair cross-section of thecommunity in order to implement the Sixth

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Amendment's guarantee of an "impartial jury." TheCourt explained that, to demonstrate a SixthAmendment violation, a defendant must establish aprima facie case by showing that a distinctive groupwas under-represented in the venire because it wassystematically excluded from the jury-selectionprocess, and that the state is unable to justify thatexclusion with a significant state interest. Id. at 364.The Court again emphasized the settled right of "acriminal defendant . . . to a petit jury selected from afair cross section of the community" as an essentialelement of the "Sixth and Fourteenth Amendments."Id. at 359.

Most recently, in Holland v. Illinois, 493 U.S. 474(1990), the Court again stressed the importance ofthe fair cross-section requirement, while recognizingthat this requirement "obviously is not explicit in[the] text [of the Sixth Amendment] . . . ." Id. at 480.In Holland, the Court determined that the petitioner,a Caucasian, had standing to raise a SixthAmendment challenge because African Americanswere excluded from his jury. Id. at 476.

Speaking for the Court, Justice Scalia explainedthat the cross-section requirement "is derived fromthe traditional understanding of how an 'impartialjury' is assembled. That traditional understandingincludes a representative venire, so that the jury willbe . . . 'drawn from a fair cross section of thecommunity.'" Id. at 480 (quoting Taylor, 419 U.S. at527) (emphasis in original).

The foregoing makes clear that, from the earliestdays of this nation, an impartial jury, representativeof the community or one's peers, has been viewed as

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essential to American liberty and democracy. ThisCourt has consistently recognized and protected thisbedrock principle. The requirement of arepresentative jury has long been honored as anindispensable means of ensuring that the juryreflects the full variety of attitudes and humanexperience that comprise the larger community—ancritical element of fairness in the criminal justicesystem, and of democratic participation in thejudicial process.

II. The Importance of a Representative JuryHas Deep Historic Roots.

The overarching importance of ensuring thatcriminal juries reflect the views of the largercommunity was recognized well before the concept ofrepresentativeness assumed its central role in theAmerican experience. From its earliest origins, thejury has been understood as a representative bodythat brings the community's sense of justice to bearon criminal matters. This view is a necessaryconsequence of the fundamental purpose served by acriminal jury—to deliver a verdict that will beaccepted as just and impartial both by the partiesand the community at large. See generally Powers v.Ohio, 499 U.S. 400, 413 (1991) ("The purpose of thejury system is to impress upon the criminaldefendant and the community as a whole that averdict of conviction or acquittal is given inaccordance with the law by persons who are fair.").

The concept of representativeness has alwaysbeen essential in the character of the criminal jury.Even jury systems in ancient times reflected a belief

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that representativeness is essential if the jury'sverdict is to be accepted by the community asimpartial and fair. In ancient Egypt, for example, ajury that tried minor charges against workmen wasrequired to be comprised of equal numbers ofindividuals from both sides of the Nile. See Lloyd E.Moore, The Jury: Tool of Kings, Palladium ofLiberty 4 (1973). Criminal juries in ancient Athenswere even more democratic—all citizens at least 30years of age were eligible to serve, provided theywere not indebted to the state. Id. at 2. Similarly,in Scandinavian and Teutonic judicial proceedings,such as the Norse Thing and the German Mallum,all citizens were initially entitled to participate. SeeWilliam Forsyth, History of Trial by Jury 4, 7 (1852).These assemblies were eventually limited to"representatives of the community," presumablywhen growing populations made the process toocumbersome. Id. at 7.

It was no different in the Anglo-Saxon tradition.In their earliest form, English juries functioned likemodern grand juries, deciding only whether theaccused should stand trial.3 See Charles L. Wells,The Origin of the Petty Jury, 27 L. Q. Rev. 347 (1911).These grand juries were comprised of twelve higher-ranking men selected from the hundred, or district,in which the offense had been committed, "andrepresented the voice of the hundred in making the

3 The test of the accused's guilt or innocence was by someother means, such as trial by ordeal. Wells, supra, at 347.

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accusation."4 Wells, supra, at 357; see also Moore,supra, at 38-39 (1951). These juries weresupplemented with representatives from the "vills,"or townships, immediately adjacent to where ofoffense had occurred. Wells, supra, at 354. Therepresentatives of these neighboring townships werecommoners, and their involvement in the processreflected a clear understanding of the significance ofensuring that juries represent of all segments of thecommunity. 5 As one commentator described theearly English jury system:

[T]he essential feature of the whole[jury] system, then as now, is that it isas a representative body that the jury iscalled upon for a verdict. It represents,that is, the common voice, or thecommon sense of the community, andthat is why having a jury was called'putting oneself on the country'.

4 In fact, the grand jury's precursor was well established inEngland before this time. But the importance ofrepresentativeness was evident even then, as grand jurorswere comprised of individuals who represented thecommunity's stake in the matter, and who provided adecidedly local assessment of the charges. William Stubbs,The Constitutional History of England 175 (1979).

5 As one commentator notes, the involvement of thesecommoners would become important when juries were latercalled upon to decide actual guilt or innocence:"Representatives of the vill came to play a crucial role:their assent was typically required for a conviction."Twelve Good Men and True: The Criminal Trial Jury inEngland, 1200-1800, 362-63 (J.S. Cockburn and T.A. Greeneds., 1988).

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Wells, supra, at 354.

These early juries were self-informing, meaningthat they either had direct knowledge of theallegations or investigated the allegationsthemselves. Moore, supra, at 39. Juries thus wereinitially delegates of their communities, called uponto investigate and resolve disputes among their own.Wells, supra, at 355 ("[Jurors'] essential character . . .was that of representatives . . . and it is in this effortto get the representative voice of the community thatwe find the key to the real origin of the [petit] jury.").

As one historian has explained, the legitimacy ofearly juries derived principally from theirrepresentative nature:

[T]he jury was a body of neighborscalled in . . . to decide disputedquestions of fact. They were in a sensewitnesses. But they were more thanwitnesses. They were a method of proofthat the parties were obliged or hadagreed to accept. It was easier so toregard them, because they representedthe sense of the community . . . fromwhich they were drawn . . . .

1 Sir William Holdsworth, A History of English Law317 (7th ed. 1956) (emphasis added). This view ofthe jury was by no means anomalous. As anotherhistorian remarked: "[i]n its origin the jury is of arepresentative character; the basis of its compositionin the early days . . . was clearly the intention tomake it representative of the community." TheodoreF.T. Plucknett, A Concise History of the CommonLaw, (Book 1) 127 (5th ed. 1956) (emphasis added).

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Trial by jury emerged as a mature institution inEngland in the thirteenth century, when moretraditional forms of trial became untenable.6 SeeVan Dyke, supra, at 3-4. When trial by ordeal wasofficially prohibited in England, juries were calledupon to decide the guilt or innocence of the accused.Wells, supra, at 349; Moore, supra, at 52.Significantly, the English system's commitment toimpartiality and representativeness grew evenstronger at this point. See Wells, supra, at 354. Itwas recognized that, for a verdict of actual guilt to beaccepted by the parties and the community, the jurywould have to be expanded to include more thanindividuals from the adjacent townships and thesurrounding district. Id. ("while the [grand] jurywas sufficiently representative to present anindictment, it might not be representative enough togive fairly and adequately the voice of the country inregard to the real guilt or innocence of theaccused . . . ."). Therefore, to enhance their

6 Criminal jury trials existed before this time, but were rarebecause the parties had to agree to a jury trial, and to bearthe associated costs. See Moore, supra, at 41. Both trial bycompurgation (in which the accused was required toassemble a group of persons to swear that his version ofevents was trustworthy) and trial by ordeal (in which theaccused underwent some form of physical torment in thebelief that God would intervene to protect the innocent) hadfallen into disuse by this time. Compurgation was found tobe susceptible to abuse and venality, while trial by ordealbecame invalid when Pope Innocent III forbade the clergyfrom administering the oaths on which the trials depended.1 Plucknett, supra, at 115-16.

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impartiality, juries were expanded to includeindividuals from the entire county.7 Id. at 356.

Eventually, jurors came to be drawn from "all[geographic] parts of the County, with severalmembers being selected from each hundred[neighborhood]." Twelve Good Men and True: TheCriminal Trial Jury in England, 1200-1800 122 (J.S.Cockburn and T.A. Green eds., 1988)(discussinggrand juries); see also Wells, supra, at 357 (notingthe same practice was utilized for petit juries). Thejury included equal numbers of men from differentneighborhoods, with each group providing its ownversion of events. Van Dyke, supra, at 12; Wells,supra, at 357. This early example of the cross-section approach to juror selection rests on animplicit understanding that those living in differentareas could decide things differently, and thatfairness and impartiality can best be assured bycollecting and balancing this range of perspectives.Wells, supra, at 358 ("By [selecting petit jurors fromeach neighborhood], a larger representation of thewhole county could be secured, and thus a fairerestimate placed upon the merits of the case, and atruer verdict given . . . .").

The English legal system's early commitment to atruly representative jury found its fullest expression

7 Initially, this goal was achieved simply by addingadditional members to the jury. These "combination juries"numbered from twenty-four to eighty-four individuals, andthe number eventually became unwieldy. This approachwas initially used only in special cases, but the practicebecame more widespread. See Wells, supra, at 356.

18

in the Magna Carta, which, as this Court has noted,"declared that no freeman should be deprived of life,etc., but by the judgment of his peers . . . ."Thompson v. Utah, 170 U.S. 343, 349 (1898). Thephrase "judgment of his peers . . ." refers to a "trialby twelve jurors," id., composed of individuals fromthe same class, legal status, or caste as the accused.See W.S. McKechnie, Magna Carta: A Commentary378 (2d ed. 1914) (the "peers of a Crown tenant werehis fellow Crown tenants"); 4 William Blackstone,Commentaries 344 (1769).8 This provision ensuredthat "every Englishman" would be entitled to serveas jurors, and that the community from which jurorscould be selected would not be limited to thosebeholden to the King. Blackstone, supra, at 344;Twelve Good Men and True, supra, at 35.9

8 Although there is some scholarly debate as to which articleof the Magna Carta conferred the right to a criminal jurytrial, it seems clear that the Magna Carta established thisright. See Moore, supra, at 50-51.

9 That eligibility for jury service in England was historicallycontingent upon the ownership of land does not underminethe view that English law has always been committed toensuring impartiality through representative juries. Asone commentator noted, the property requirement wasviewed as "the necessary prerequisite of impartiality andindependence," and as the "best guarantee of sociallyacceptable verdicts." Twelve Good Men and True, supra, at123. The property requirement, then, was little differentfrom the juror qualifications of today, which merely ensurethat jurors are adult citizens capable of understanding theevidence and law. Indeed, the property requirement maybe likened to the modern practice of excusing jurors whoselimited financial means make jury service undulyburdensome. Moreover, in practice, medieval juries in

(cont'd)

19

Thus, the view that a jury can be impartial only ifit is representative of the entire community—a keyelement of the Sixth Amendment, implemented bythe fair cross-section requirement of Taylor andDuren—has been central to the understanding of therole and value of juries for many centuries.

III. The Sixth Amendment's Fair Cross-SectionRequirement Protects Crucial Societal andGovernmental Interests.

As this Court has consistently recognized, the faircross-section requirement supports the impartiality,democratic character, and legitimacy of the criminaljustice system.

A. The Fair Cross-SectionRequirement Supports theImpartiality of the Criminal JusticeSystem.

The fair cross-section requirement buttresses theimpartiality of our criminal justice system. Thisinterest undergirds the constitutional right of theaccused to a trial by jury. See U.S. Const. amend.VI.________________________(cont'd from previous page)

England were regularly comprised of those who failed tomeet the property requirement — such as "day laborers,poor husbandmen and small craftsmen" — owing to thefailure of many qualified landowners to appear for service.Id. at 125. English juries were therefore comprised of abroader cross-section of society than is sometimespresumed.

20

Securing impartiality presents challenges. Forexample, Justice Thomas has noted the persistentdifficulty of reaching fair verdicts when defendantsencounter racially homogeneous juries that do notfully reflect the community's demographics:

[T]he racial composition of a jury mayaffect the outcome of a criminal case.We explained [in Strauder]: "It is wellknown that prejudices often existagainst particular classes in thecommunity, which sway the judgmentof jurors, and which, therefore, operatein some cases to deny to persons ofthose classes the full enjoyment of thatprotection which others enjoy." . . .[S]ecuring representation of thedefendant's race on the jury may help toovercome racial bias and provide thedefendant with a better chance ofhaving a fair trial.

I do not think that this basic premise ofStrauder has become obsolete.

Georgia v. McCollum, 505 U.S. 42, 60-61 (1992)(Thomas, J., concurring in judgment) (quotingStrauder, 100 U.S. at 309).10

Research confirms that the potential partiality ofhomogeneous juries has direct and measurableeffects on verdicts. See, e.g., Douglas L. Colbert,

10 In McCollum, the Court invalidated a criminal defendant'sdiscriminatory peremptory strikes under the EqualProtection Clause. 505 U.S. at 59.

21

Challenging the Challenge: Thirteenth Amendmentas a Prohibition Against the Racial Use ofPeremptory Challenges, 76 Cornell L. Rev. 1, 110-115(1991) ("[A]ll-white mock juries consistentlyreturned more guilty verdicts against blackdefendants than they did when white defendantswere charged with identical crimes"); Sheri LynnJohnson, Black Innocence and the White Jury, 83Mich. L. Rev. 1611 (1985) (discussing originalfindings that all-white juries are biased againstracial minorities); cf. Samuel R. Sommers, On RacialDiversity and Group Decision Making: IdentifyingMultiple Effects of Racial Composition on JuryDeliberations, 90 J. Personality & Soc. Psychol. 597,608 (2006) ("[H]omogeneous groups spent less timeon their decisions, made more errors, and consideredfewer perspectives.").

Moreover, "a substantial body of empiricalevidence has developed which shows that all-whitejuries are not impartial when deciding casesinvolving interracial crimes." Colbert, supra, at 110;see also Developments in the Law—Race and theCriminal Process, 101 Harv. L. Rev. 1472, 1559(1988).

Conversely, studies have demonstrated thatracially-heterogeneous juries tend to render verdictsinfluenced less by racial bias. See Colbert, supra, at112 (citing J.L. Bernard, Interaction Between theRace of the Defendant and That of Jurors inDetermining Verdicts, 5 Law & Psychol. Rev. 103(1979); Jack P. Lipton, Racism in the Jury Box: TheHispanic Defendant, 5 Hispanic J. Behav. Sci. 275(1983)).

22

The fair cross-section requirement supports thecritical governmental interest in impartial juryverdicts by counteracting these potential biases.With regard to cross-sectional jury venires, theCourt has declared, "'The broad representativecharacter of the jury should be maintained, partly asassurance of a diffused impartiality . . . .'" Taylor,419 U.S. at 530. "In particular, thecounterbalancing of various biases is critical to theaccurate application of the common sense of thecommunity to the facts of any given case." Ballew v.Georgia, 435 U.S. 223, 234 (1978).

Supporting this objective, one commentatoremphasized, "[G]iven differences in group behavior,a cross section will help cancel group biases." JohnB. Ashby, Juror Selection and the Sixth AmendmentRight to an Impartial Jury, 11 Creighton L. Rev.1137, 1138 (1978). As a result, "[the jury] as a whole. . . will be impartial, even though no juror is."Jeffrey Abramson, We, the Jury: The Jury Systemand the Ideal of Democracy 101 (1994) (citing Peoplev. Wheeler, 583 P.2d 748, 755 (Cal. 1978) (discussing"overall impartiality"); Commonwealth v. Soares, 387N.E.2d 499, 512, cert. denied, 444 U.S. 881 (Mass.1979) (discussing "diffuse impartiality")).

Although it is doubtful that the long-held biaseseach juror brings to deliberations will merelyevaporate upon entering the jury room withmembers of different groups, "the presence ofpersons from groups that are the object of prejudice[tends to] inhibit[] the expression of prejudice byother jurors." Ashby, supra, at 1139.

As one commentator suggests,

23

The noble purpose of [a representative]jury [is] to silence expressions of groupprejudice and to ratchet up thedeliberations to a higher level ofgenerality. Jurors wishing to bepersuasive . . . now have to abandonarguments that depend[] on theparticular prejudices or perspectives oftheir own kind. Their arguments . . .have to resonate across group lines.

Abramson, supra, at 101.

Impartiality, as required by the SixthAmendment in criminal juries, requires tools thatreduce the potential taint of group biases. In light ofthe tendency of representative juries to overcomebias, Justice Marshall's admonition regarding theimportance of heterogeneous juries remainspersuasive:

When any large and identifiablesegment of the community is excludedfrom jury service, the effect is to removefrom the jury room qualities of humannature and varieties of humanexperience, the range of which isunknown and perhaps unknowable. . . .[I]ts exclusion deprives the jury of aperspective on human events that mayhave unsuspected importance in anycase that may be presented.

24

Peters v. Kiff, 407 U.S. 493, 503-504 (1972) (pluralityopinion) (Marshall, J., joined by Douglas andStewart, JJ.).11

The fair cross-section requirement does not existmerely as an end in itself, but rather as a means tofoster more robust deliberation that minimizesjurors' reliance on preconceived notions. Thus, tothe extent the fair cross-section requirement helpsincrease the potential for heterogeneity in the jury,it helps minimize expressions of bias that might leadmembers of the jury to rely impermissibly onprejudice rather than the evidence to reach a verdict.The requirement thereby fortifies societal andgovernmental interests in the constitutionalprinciple of impartiality.

B. The Fair Cross-SectionRequirement Reinforces CrucialDemocratic Goals.

The fair cross-section requirement alsosignificantly furthers the participatory aims ofrepresentative democracy. In Taylor, the Courtdescribed "community participation in theadministration of the criminal law" as "consistent

11 In Peters, the Court invalidated the indictment andconviction of a Caucasian defendant because AfricanAmericans had been excluded from the grand jury. 407 U.S.493. Three justices found that this systematic exclusionviolated the Constitution. Id. at 504-05 (Marshall, Douglas,and Stewart, JJ.). Three others found this systematicexclusion violated federal statutory law. Id. at 506-07(White, Brennan, and Powell, JJ., concurring in judgment).

25

with our democratic heritage." 419 U.S. at 530.This democratic participation is both a goal and aresult of representative jury pools.

Notably, the Court has likened jury service to thefundamental right to vote: "[W]ith the exception ofvoting, for most citizens the honor and privilege ofjury duty is their most significant opportunity toparticipate in the democratic process." Powers, 499U.S. at 407. Similarly, the Court recentlyhighlighted the important democratic function ofjuries: "Just as suffrage ensures the people'sultimate control in the legislative and executivebranches, jury trial is meant to ensure their controlin the judiciary." Blakely v. Washington, 542 U.S.296, 306 (2004).

This view is long-standing. Thomas Jeffersondescribed trial by jury "as the only anchor yetimagined by man by which government can be heldto the principles of its constitution." Robert C.Walters, et al., Jury of Our Peers: An UnfulfilledConstitutional Promise, 58 SMU L. Rev. 319, 322(2005). Tocqueville wrote that the American jury asan institution "always preserves its republicancharacter" and that it appears to be "as extreme aconsequence of the sovereignty of the people asuniversal suffrage. They are two instruments ofequal power." Alexis de Tocqueville, Democracy inAmerica, 282-83 (Knopf 1951).

Modern scholars also recognize this aspect of juryservice: "[J]ury service is the most direct contactthat a citizen has with his government and, next tovoting, about the only chance he has to participate init as a basic decision-maker." Ashby, supra, at 1140

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(citing Hearings Before the Subcomm. onImprovements in Judicial Machinery of the SenateComm. on the Judiciary, 100th Cong., 1st Sess. 63(1967)). Another scholar suggests, "[T]he linkbetween jury service and other rights of politicalparticipation such as voting is an important part ofour overall constitutional structure, spanning threecenturies and eight amendments: the Fifth, Sixth,Seventh, Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth." Vikram David Amar,Jury Service as Political Participation Akin toVoting, 80 Cornell L. Rev. 203, 206 (1994).

Discrete groups in our society often have beenexcluded from jury pools. See, e.g., Taylor, 419 U.S.522 (1975) (women); Thiel, 328 U.S. at 219 (dailywage earners); Hernandez v. Texas, 347 U.S. 475(1954) (Mexican Americans); Smith, 311 U.S. 128(African Americans); Norris v. Alabama, 294 U.S.587 (1935) (same). 12 In response, the Court hasemphasized that the fair cross-section requirementprotects the ability of citizens to participate in thisvital, long-standing expression of democracy: "[T]hebroad representative character of the jury should bemaintained . . . because sharing in theadministration of justice is a phase of civicresponsibility." Taylor, 419 U.S. at 530-31.

Earlier, the Court similarly explained, "It is partof the established tradition in the use of juries asinstruments of public justice that the jury be a bodytruly representative of the community. . . .

12 Moreover, various commentators have discussed thispersistent problem. See infra Part III.D, pp. 32-34.

27

[E]xclusion from jury service of otherwise qualifiedgroups . . . is at war with our basic concepts of ademocratic society and a representativegovernment." Smith, 311 U.S. at 130.

Representative venires promote democraticprinciples by ensuring broad participation in thecivic responsibility of administering public justice.Moreover, protecting the inclusion of identifiablegroups in the jury venire—and thus potentially inthe petit jury—helps ensure that verdicts reflect thevalues of the community. See, e.g., Massaro, supra,at 546-47 ("This community concern is satisfied by ajury that includes several different communitygroups and that is selected through a procedure thatover time is likely to include every group.")(emphasis in original); cf. Parklane Hosiery Co. v.Shore, 439 U.S. 322, 343-44 (1979) (Rehnquist, J.,dissenting) ("Trial by a jury . . . was important to thefounders because juries . . . keep the administrationof law in accord with the wishes and feelings of thecommunity.") (citing Oliver W. Holmes, CollectedLegal Papers 237 (1920)).

The Sixth Amendment's democratic mandate thatthe "impartial jury" be drawn from "the State anddistrict where in the crime shall have beencommitted" likewise indicates that the jury shouldrepresent the views of the community overall. SeeTaylor, 419 U.S. at 525, 530-31; Andrew D. Leipold,Constitutionalizing Jury Selection in CriminalCases: A Critical Evaluation, 86 Geo. L.J. 945, 958-59 (1998). The fair cross-section requirement helpsto ensure that jury verdicts reflect the totality ofthese views by ensuring the opportunity for broadcommunity participation.

28

The fair cross-section requirement also reinforcesanother democratic value: protection against thearbitrary exercise of governmental power. TheCourt has long recognized the role of the jury infurthering this societal interest: "A right to jurytrial is granted to criminal defendants in order toprevent oppression by the Government. . . . [It is] aninestimable safeguard against the corrupt oroverzealous prosecutor and against the compliant,biased, or eccentric judge." Duncan, 391 U.S. at 155-156; see also Ex parte Milligan, 71 U.S. 2, 126 (1866)("[T]he lessons of history informed [the Founders]that a trial by an established court, assisted by animpartial jury, was the only sure way of protectingthe citizen against oppression and wrong.").

As the Court explained in Taylor, the fair cross-section requirement is essential to the jury's role indischarging this democratic function:

The purpose of a jury is to guardagainst the exercise of arbitrarypower—to make available thecommonsense judgment of thecommunity as a hedge against theoverzealous or mistaken prosecutor andin preference to the professional orperhaps overconditioned or biasedresponse of a judge. . . . Thisprophylactic vehicle is not provided ifthe jury pool is made up of only specialsegments of the populace or if large,distinctive groups are excluded from thepool.

419 U.S. at 530.

29

The fair cross-section requirement thus plays acritical role in protecting and enforcing the centraldemocratic values that underlie the jury's role in theAmerican system.

C. The Fair Cross-Section RequirementBolsters Public Confidence in the JurySystem.

The fair cross-section requirement alsopowerfully supports the perceived legitimacy ofjuries. As the Court has explained, "The purpose ofthe jury system is to impress upon the criminaldefendant and the community as a whole that averdict of conviction or acquittal is given inaccordance with the law by persons who are fair."Powers, 499 U.S. at 413 (emphasis added).

Public confidence in the jury system depends notonly upon broad democratic participation in or theactual impartiality of the system, but also thepublic's perception that jury verdicts are fair. See,e.g., Leslie Ellis & Shari Seidman Diamond, Race,Diversity, and Jury Composition: Battering andBolstering Legitimacy, 78 Chi.-Kent L. Rev. 1033,1038 (2003) ("Regardless of any direct effects onverdict, unrepresentative juries potentially threatenthe public's faith in the legitimacy of the legalsystem and its outcomes."). In this regard, thepublic must view criminal verdicts as legitimate toprevent diminished trust in the system as a wholeand maintain social order. See id. at 1039.

Inclusive venires (i.e., those that represent allgroups of the community) serve this interest. Boththis Court and scholars have recognized the

30

relationship between inclusive juries, the perceptionof fairness, and public confidence in criminal justice.For example, Justice Thomas has explained:

The public, in general, continues tobelieve that the makeup of juries canmatter in certain instances. . . . Majornewspapers regularly note the numberof whites and blacks that sit on juries inimportant cases. Their editors andreaders apparently recognize thatconscious and unconscious prejudicepersists in our society and that it mayinfluence some juries. Commonexperience and common sense confirmthis understanding.

McCollum, 505 U.S. at 60-61 (Thomas, J., concurringin judgment).

Studies confirm that groups under-representedon juries distrust the verdicts rendered byhomogeneous juries. For example, researchersreport:

[T]he relationship between the verdictand the racial composition of the jurysuggests that when the process isinclusionary (i.e., the jury is raciallyheterogeneous), the outcome does notinfluence the perceived fairness of thetrial. However, when the process failsto produce a heterogeneous jury (i.e.,the all-White jury), then observers aremore likely to find a trial that produceda negative outcome for the defendant tobe unfair.

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Ellis & Diamond, supra, at 1049. See also Ashby,supra, at 1139 ("When large classes of people aredenied a role in the legal process, even if that denialis wholly unintentional or inadvertent, there isbound to be a sense of alienation from the socialorder."); Hiroshi Fukurai & Darryl Davies,Affirmative Action in Jury Selection: RaciallyRepresentative Juries, Racial Quotas, andAffirmative Juries of the Hennepin Model and theJury de Medietate Linguae, 4 Va. J. Soc. Pol'y & L.646, 663-64 (1997).

The fair cross-section requirement helps toremedy this problem and buttresses publicconfidence in jury verdicts and the criminal justicesystem more broadly. See Taylor, 419 U.S. at 530("Community participation in the administration ofthe criminal law . . . is . . . critical to publicconfidence in the fairness of the criminal justicesystem."); see also Lockhart v. McCree, 476 U.S. 162,174-75 (1986); Holland, 493 U.S. at 489 (Kennedy,J., concurring).

The fair cross-section requirement also increasesthe chance that the petit jury will reflect thedemographics of the community. This is animportant component of perceived fairness"[b]ecause the jury's fairness is determined not onlyby its verdict but also by its visual appearance."Massaro, supra, at 517. Research shows that thepublic generally believes the verdicts of diversejuries are fairer. See Nancy J. King, The Effects ofRace-Conscious Jury Selection on Public Confidencein the Fairness of Jury Proceedings: An EmpiricalPuzzle, 31 Am. Crim. L. Rev. 1177, 1182 (1994)("[I]ncreasing the racial and ethnic diversity of juries

32

can make particular jury decisions seem fairer tolitigants and observers, which in turn can bolstersupport for the jury as an institution."); Fukurai &Davies, supra, at 663-64.

Thus, the fair cross-section requirement not onlyfurthers impartiality and democratic values, but italso contributes substantially to the public's faiththat the jury system is legitimate, and its verdictsworthy of confidence and respect.

D. The Fair Cross-Section RequirementRemains Necessary.

Meritorious challenges under the SixthAmendment's cross-section requirement continue tobe an important mechanism for ensuring thefairness and reliability of juries. See, e.g., UnitedStates v. Jackman, 46 F.3d 1240, 1244 (2d Cir. 1995)(violation established where venire was selectedfrom a list that under-represented minoritiesbecause it inadvertently omitted two cities with thehighest minority population); United States v. Osorio,801 F. Supp. 966, 975 (D. Conn. 1992) (prima faciacross-section violation found where jury listsinadvertently excluded all residents of New Britainand Hartford); People v. Hubbard, 552 N.W.2d 493,504 (Mich. Ct. App. 1996); In Re Rhymes, 170 Cal.App. 3d 1100 (1985).

Research confirms that under-representation ofdistinctive groups in the community remains asignificant problem in many jurisdictions. Forexample, in 2007, Citizen Action of New York talliedthe race status of over 14,000 Manhattan residentsreporting for jury duty at jury assembly rooms for

33

civil and criminal cases in the Supreme Court, NewYork County (Manhattan) for a 12-week period fromNovember 2006 to February 2007. See Bob Cohen &Janet Rosales, Racial and Ethnic Disparity inManhattan Jury Pools: Results of a Survey andSuggestions for Reform (June 2007).

This study concluded that Hispanics were under-represented by 77% and African Americans wereunder-represented by 42%, while Caucasians wereover-represented by 43%, as measured by theirproportionate share of Manhattan's population. Id.at i.

Similarly, a jury assessment report for the ThirdJudicial Circuit Court of Wayne County, Michigan,found that in 2004 through 2005, African-Americanscomprised only 25.7% of the jury pool, compared to39.6% of the Wayne County adult population,creating an average disparity of 13.9%. Paula L.Hannaford-Agor & G. Thomas Munsterman, ThirdJudicial Circuit of Michigan Jury SystemAssessment, Final Report, i (National Center forState Courts, Aug. 2, 2006).

Another study concluded that ethnic minoritiesare under-represented in jury pools in Dallas andHarris Counties, Texas. Robert Walters & MarkCurriden, A Jury of One's Peers? InvestigatingUnderrepresentation in Jury Venires, 43 Judges J.17, 17 (2004). The study found that "[d]espite thefact that Hispanics comprise about one-third ofDallas County's adult population, less than 10percent of those who show up for duty are Latino. . . .[and] [w]hile more than 30 percent of Harris Countyis Latino, less than 13 percent of those who

34

participated in the jury system are Latino." Id. at19.

Studies show that under-representation ofcertain groups in the jury-selection process remainsa problem in various other states, as well. See, e.g.,Nebraska Minority Justice Committee,Representative Juries: Examining the Initial andEligible Pool of Jurors 26 (Dec. 2008) ("data indicatethat there are significant racial disparities in theinitial and eligible pool of jurors."); South DakotaEqual Justice Commission, Final Report andRecommendations 8 (2006) (South Dakota juries"rarely represent the racial composition of acommunity."); Report of the Alaska Supreme CourtAdvisory Committee on Fairness and Access 83 (Oct.31, 1997) (Native Alaskans under-represented inKodiak and Nome, African-Americans under-represented in Anchorage and Fairbanks, and Asian-Americans under-represented in Anchorage).

Accordingly, any attempt to characterize Taylor,or the fair cross-section requirement, as a relic thathas outlived its usefulness is belied by the facts. Inreality, Taylor, with its explication of the core SixthAmendment right to "an impartial jury," remainsvital precedent that is necessary to safeguard aconstitutional right that fosters the public'sconfidence and participation in government.

35

IV. Principles of Stare Decisis StronglySupport The Fair Cross-SectionRequirement.

In Taylor, this Court articulated a clear principleof constitutional law that enforces a longstanding,fundamental right. See Part I, supra. The rule iseminently sound in principle and, with the benefit ofDuren's additional guidance, has proven entirelyworkable in practice.

Abandoning Taylor would unnecessarily "cast[]aside workability and relevance and substitute[]uncertainty." Williams, 399 U.S. at 129 (Harlan, J.,concurring in part and dissenting in part). ThisCourt should not endorse a result that would,inevitably, make enforcement of the obligation toprovide an impartial jury more cumbersome, erratic,and unpredictable. Taylor was correct as an initialmatter; its role as settled precedent further counselsstrongly against discarding it.

This Court has repeatedly held that the doctrineof stare decisis "is of fundamental importance to therule of law." Hilton v. South Carolina Pub. Rys.Comm'n, 502 U.S. 197, 202 (1991). Fidelity toprecedent "ensure[s] that the law will not merelychange erratically, but will develop in a principledand intelligible fashion." Vasquez v. Hillery, 474 U.S.254, 265 (1986).

Stare decisis allows society "to presume thatbedrock principles are founded in law rather than inthe proclivities of individuals, and therebycontributes to the integrity of our constitutionalsystem of government, both in appearance and infact." Id. at 265-66. Even in cases involving

36

constitutional rights, rejection of precedent requiresa "special justification." Arizona v. Rumsey, 467 U.S.203, 212 (1984).

Amicus Criminal Justice Legal Foundationmakes the anomalous suggestion that the fair cross-section requirement should be abandoned becauseobjections to the composition of the venire can beaddressed through the Equal Protection Clause. SeeBrief Amicus Curiae of the Criminal Justice LegalFoundation in Support of Petitioner at 25-32.

This suggestion is unpersuasive. Since the SixthAmendment explicitly addresses the requirement of"an impartial jury," it reverses both logic and law tosuggest that the Sixth Amendment should beabridged and that a claim addressing theimpartiality of the jury should be considered onlyunder the general contours of the Equal ProtectionClause.

This suggestion is especially inapt because theSixth Amendment's guarantee of an impartial juryin the Bill of Rights reflects its cardinal role in theAmerican system. Far from being irrelevant orredundant, the Sixth Amendment's "impartial jury"requirement is central to the fair-cross-section issue;it makes little sense to contend that all such jurychallenges should be raised only under the complexequal protection jurisprudence developed in vastlydifferent contexts.

There are also critical distinctions between theSixth Amendment's fair cross-section right andEqual Protection that weigh overwhelmingly in favorof retaining the former as the means for ensuringimpartial juries. For example, while Equal

37

Protection forbids discrimination against identifiablegroups, the Sixth Amendment's fair cross-sectionright directly promotes the ideal of ensuring thatjuries represent all distinct groups within acommunity, thereby more directly promoting theconstitutional values at stake.

Also, the fair cross-section right directlyvindicates the defendant's interest in a fair trial,binding this interest directly to the cross-sectionalideal, while Equal Protection promotes citizens'equal access to participate in the criminal justicesystem. The fair cross-section right also addressesthose instances in which purposefully differenttreatment of classes is absent, but computer glitchesor other systemic problems result in an unbalancedvenire.

Consequently, to withdraw the right ofdefendants to have potential jurors selected from afair cross-section of the community would beinconsistent with any appropriate notion ofconstitutional decision-making. Only if a precedentis "unsound in principle," "unworkable in practice,"or has led to inconsistent, unforeseen, or anomalousresults would such a radical step be warranted. SeeGarcia v. San Antonio Metro. Transit Auth., 469 U.S.528, 546-47 (1985). None of these justifications ispresent here. To the contrary, the fair cross-sectionrequirement recognized in Taylor is sound inprinciple and workable in practice, and has led toprincipled results that further the quintessentialAmerican value of "an impartial jury." As a result, itshould be fortified, not discarded.

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CONCLUSION

For the foregoing reasons, and for the reasonsstated by the Respondent, the Court should affirmthe judgment of the Court of Appeals.

Respectfully submitted,

JOSHUA DRATEL

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1660 L ST., N.W.12TH FLOOR

WASHINGTON, DC 20036(202) 872-8600

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 BROAD STREET

NEW YORK, NY 10004(212) 549-2500

CLIFFORD M. SLOAN

Counsel of RecordNEIL LOMBARDO

RAY D. MCKENZIE

PATRICK HAGGERTY

1440 NEW YORK AVE., N. W.WASHINGTON, D. C. 20005(202) 371-7000

THOMAS M. MEYER

NATIONAL JURY PROJECT

2831 TELEGRAPH AVE.OAKLAND, CA 94609(510) 524-6568

Attorneys for Amici Curiae

December 28, 2009