CHAPTER 19

CHALLENGES TO THE COMPOSITION OF THE JURY

§ 19.01 Sources of the Right

§ 19.02 The Sixth Amendment/Article 10 Fair Cross-Section Test

§ 19.03 - Distinctive Groups

§ 19.04 - The Degree of Misrepresentation

§ 19.05 - "Systematic" Under and Overrepresentation

§ 19.06 State Constitutional Provisions

§ 19.07 Jury Selection Statutes and Rules

§ 19.08 Procedure

§ 19.01

Sources of the Right

The sixth amendment right to trial by an impartial jury{1} guarantees the right to a jury which has been drawn from a fair cross section of the community,{2} and the federal equal protection clause also prohibits discrimination against particular groups in the jury selection process.{3} The jury trial guarantees of chapter 1, articles 10 and 12 of the Vermont Constitution imply a cross-section requirement similar to the sixth amendment's,{4} and the state's jury selection statutes and rules look to the selection of jury venires that are representative in terms of age, gender, occupation, economic status, and geographical distribution within the county.{5}

Juries in Vermont are selected by county jury commissions, on a countywide basis.{6} Selection practices vary by county, but the principal source of names in all counties is the voters list, which some counties supplement with lists of licensed drivers and other sources of names.{7}

Except for people of French-Canadian ancestry, who represent a sizeable and probably underrepresented ethnic minority, Vermont is relatively homogeneous in terms of race and ethnicity. Claims of inequity in the jury selection process have therefore focused on class and class-related characteristics, and on age. People selected for jury service in Vermont have seemed distinctly older, wealthier, more heavily white collar, more frequently married, and better educated than the community at large, and statistics generally confirm these impressions.{8} Coincidentally, the underrepresented characteristics roughly describe most defendants: young, poor, poorly educated, single.

§ 19.02

The Sixth Amendment/Article 10 Fair Cross-Section Test

To establish a violation of the fair cross-section requirement the defendant must show:

(1) that the group alleged to be excluded is a "distinctive" group of the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.{9}

§ 19.03

- Distinctive Groups

Whether or not a group is distinctive is a question of fact for the trial judge, on which the defendant bears the burden of proof.{10} In State v. Pelican the Vermont court held that to be distinctive, for sixth amendment purposes, a group must meet three criteria:

(1) the group must be defined and limited by some clearly identifiable factor (such as race or sex), (2) there must be a common thread or basic similarity in attitude, ideas or experience which runs through members of the group, and (3) there must be a community of interest among the members of the group to the extent that the group's interests cannot be adequately represented if the group is excluded from the jury selection process.{11}

In State v. Jenne the court seemed to add a fourth criterion, holding that "cognizability" is limited to "special groups, like women and blacks, that have been subjected to discrimination and prejudice within the community."{12} Race,{13} gender,{14} and alienage{15} have all been held to be distinctive groups, while the distinctiveness of social class is less certain.{16}

In Pelican and Jenne the court held that none of the groups claimed to be underrepresented on Vermont criminal juries - the young, blue collar workers, the poorly educated, and single people - were "distinctive" or "cognizable" groups under the sixth amendment, at least on the facts presented, and that their underrepresentation therefore did not violate the fair cross-section requirement.{17}

Age groups, and in particular the group of young adults, are not distinctive, the Vermont court held, because "the parameters of the group are difficult to ascertain"; because age groups do not have "cohesive and consistent" values and attitudes (young adults, for example, "are not a group that has traditionally needed special protection"); and because "the membership of the group is in flux."{18} Trial court findings in Pelican, based on statistical and expert evidence that people aged eighteen to twenty-one and those aged eighteen to twenty-four constituted distinctive groupings were overturned as clearly erroneous.{19} The court did not hold "that an age defined group can never be found to be distinctive[,]"{20} but it came close.

People with French-Canadian ancestry, who make up a significant proportion of Vermont's population, may constitute a distinctive group even by Pelican's strict criteria and may be underrepresented on juries.

§ 19.04

- The Degree of Misrepresentation

Jury pools need not be statistical "mirrors" of the community;{21} all the sixth amendment requires is "fair and reasonable" representation.{22} There is no mathematical test of reasonableness, but the degree of misrepresentation can be quantified in various ways: by statistical significance, absolute disparity in percentages,{23} or "comparative" disparity (the absolute disparity divided by the proportion of the population that is in the cognizable class).{24} A group that constitutes 20 percent of the population and only 5 percent of the jury pool shows an absolute disparity of 15 percent and a comparative disparity of 75 percent. An average jury would include less than one member of the group (5 percent of 12 = .6), although if it were represented in proportion to its numbers in the population more than two members of each jury would be members of the group (20 percent of 12 = 2.4).{25}

§ 19.05

- "Systematic" Under and Overrepresentation

Duren requires that, to constitute a sixth amendment violation, the underrepresentation must be "systematic[,]" a term by which it apparently meant no more than a product of the system, "inherent in the particular jury-selection process utilized[,]"{26} but which the Vermont court in Pelican has construed to require a showing of purposeful or invidious discrimination. Thus, using lists of voters as the principal source of names, a facially neutral method that systematically underrepresents young adults, is permissible because it does not underrepresent them deliberately.{27} Neutral procedures that result in an overrepresentation of women pass muster absent proof that the authorities "utilized a particular system or procedure in order to exclude [a particular gender]."{28}

§ 19.06

State Constitutional Provisions

In Pelican the court held that the state constitutional jury trial provisions (chapter I, articles 10 and 12) provided no more protection than the sixth amendment (at least with respect to Pelican's particular claims),{29} and that chapter II, article 38 of the constitution, requiring officials to exercise "great care" to prevent "partiality" in the "choice and return, or appointment of Juries[,]" speaks to bias and not representativeness, and indeed "that representativeness has never been the goal of jury selection in this state."{30}

In at least one respect a state constitutional claim may be significantly harder to establish than a federal claim. A defendant raising a sixth amendment fair cross-section violation need not be a member of the underrepresented group,{31} or show any particular prejudice from the underrepresentation. In Pelican the defendant, aged forty-one, challenged underrepresentation of young adults aged eighteen to twenty-four. One of the court's many grounds for rejecting his state constitutional claims was a failure to show prejudice; because he did not argue "that his jury will be either impartial [sic] or incompetent[,]" he had no claim under article 38.{32}

§ 19.07

Jury Selection Statutes and Rules

By statute the court administrator is required to make rules "to assure that the list of jurors prepared by the [county] jury commission shall be representative of the citizens of its county in terms of age, sex, occupation, economic status, and geographical distribution."{33} The provision, however, literally speaks only to the making of rules, not the composition of the jury pool, and the Vermont Supreme Court has held that even if the jury pool is not in fact representative, the statute has been complied with so long as the court administrator's rules follow the statute, and local jury selection procedures follow the rules.{34} The duty of jury commissions to engage in "continuous research for persons qualified and liable for jury service" does not require that lists be updated more frequently than every two years.{35}

As with state constitutional challenges to selection procedures, in order to successfully challenge a jury pool under the jury selection statutes the Vermont court requires defendants to demonstrate "prejudice,"{36} but it is not clear what sort of prejudice it has in mind.

§ 19.08

Procedure

Challenges to jury selection methods must be made by a motion to strike to the array, filed by the Rule 12(c) deadline for pretrial motions;{37} a motion filed at voir dire may be too late.{38}

A defendant has standing to raise a sixth amendment claim that cognizable groups have been underrepresented whether or not the defendant is a member of the underrepresented group,{39} but the same may not be true of claims under the state constitution.{40}

The Vermont Supreme Court has pointedly doubted whether the defendant can take a pretrial appeal from an order rejecting a jury selection challenge of this sort. It reluctantly permitted such an appeal in Pelican;{41} in Jenne, after dismissing a number of companion cases, it waived the normal interlocutory appeal requirements in the interests of judicial economy.{42}

1. "In all criminal prosecutions, the accused shall enjoy the right to a . . . trial by an impartial jury of the State and district wherein the crime shall have been committed. . . ."

2. Holland v. Illinois, 493 U.S. 474, 478 (1990); Taylor v. Louisiana, 419 U.S. 522, 527 (1975); State v. Pelican, 154 Vt. 496, 502 (1990).

3. Castaneda v. Partida, 430 U.S. 482, 495-96 (1977); Strauder v. West Virginia, 100 U.S. 303 (1879).

4. See State v. Murphy, 134 Vt. 106, 108-09 (1976). Cf. State v. Pelican, 154 Vt. 496, 508-09 (1990) (articles 10 and 12 require no more than the sixth amendment). Chapter II, § 38 of the Vermont Constitution, which provides that "great care ought to be taken to prevent corruption or partiality in the choice and return, or appointment of Juries[,]" has been held not to require a representative jury. State v. Jenne, 156 Vt. 283, 292-93 (1991); State v. Pelican, 154 Vt. 496, 510 (1990).

5. 4 V.S.A. § 952; Rules 1 and 3, Qualification, List, Selection and Summoning of All Jurors.

6. 4 V.S.A. § 951.

7. See State v. Pelican, 154 Vt. 496, 499 (1990), and State v. Jenne, 156 Vt. 283, 286-87 (1991), describing procedures in Franklin and Chittenden Counties, respectively.

8. Jury challenges comparing the characteristics of people summoned for jury duty (as revealed by the jury questionnaire) and the county population (from 1980 census data as supplemented by more recent data) showed statistically significant underrepresentation of the young, lower-status occupational groups, and other groupings. See State v. Jenne, 156 Vt. 283, 286-87 (1991) (age, occupation, and marital status); State v. Pelican, 154 Vt. 496, 499-500 (1990) (age).

9. State v. Pelican, 154 Vt. 496, 502-03 (1990) (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)).

10. State v. Pelican, 154 Vt. 496, 503-04 (1990).

11. 154 Vt. 496, 503 (1990). See also State v. Jenne, 156 Vt. 283, 289-90 (1991).

12. State v. Jenne, 156 Vt. 283, 291 (1991) (quoting Anaya v. Hanson, 781 F.2d 1, 3 (1st Cir. 1986)) (emphasis in original).

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

14. Duren v. Missouri, 439 U.S. 357 (1979); Taylor v. Louisiana, 419 U.S. 522 (1975).

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

16. Compare Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) (excluding daily wage earners violated equal protection) with State v. Jenne, 156 Vt. 283, 291 (1991) (class of blue collar workers may be too diverse to be cognizable).

17. Jenne, 156 Vt. 283, 290-91 (1991); State v. Pelican, 154 Vt. 496, 505 (1990).

18. State v. Pelican, 154 Vt. 496, 505-06 (1990).

19. State v. Pelican, 154 Vt. 496, 505-06 (1990).

20. State v. Pelican, 154 Vt. 496, 505 (1990) (emphasis in original).

21. Swain v. Alabama, 380 U.S. 202, 208 (1965); State v. Jenne, 156 Vt. 283, 292 (1991); State v. Pelican, 154 Vt. 496, 502 (1990).

22. Duren v. Missouri, 439 U.S. 357, 364 (1979).

23. Defined as the "difference between the percentage of the cognizable class in the population and the percentage of that group represented by the venire." State v. Castanguay, 481 A.2d 56, 63 (Conn. 1984).

24. State v. Castanguay, 481 A.2d 56, 64 (Conn. 1984).

25. See State v. Castanguay, 481 A.2d 56, 64-65 (Conn. 1984).

26. Duren v. Missouri, 439 U.S. 357, 366 (1979).

27. State v. Pelican, 154 Vt. 496, 506-08 (1990).

28. State v. Jenne, 156 Vt. 283, 292 (1991) (quoting Ford v. Seabold, 841 F.2d 677, 685 (6th Cir.), cert. denied, 488 U.S. 928 (1988)).

29. State v. Pelican, 154 Vt. 496, 508-09 (1990).

30. State v. Pelican, 154 Vt. 496, 509-10 (1990).

31. Holland v. Illinois, 493 U.S. 474, 476-77 (1990).

32. State v. Jenne, 156 Vt. 283, 293 (1991); State v. Pelican, 154 Vt. 496, 510 (1990). The same requirement seems to apply to claims under articles 10 and 12. Jenne, 156 Vt. at 290.

33. 4 V.S.A. § 952.

34. State v. Pelican, 154 Vt. 496, 510-511 (1990).

35. State v. Pelican, 154 Vt. 496, 511 (1990); 4 V.S.A. § 953(a).

36. State v. Jenne, 156 Vt. 283, 293 (1991); State v. Pelican, 154 Vt. 496, 511 (1990).

37. This was the procedural posture of both Pelican, 154 Vt. at 498, and Jenne, 156 Vt. at 286.

38. State v. Clark, No. 89-258 (Vt. July 5, 1990) (unpublished).

39. Holland v. Illinois, 493 U.S. 474, 476-77 (1990). To make an equal protection claim, by contrast, the defendant must be a member of the group. Castaneda v. Partida, 430 U.S. 482, 494 (1977); State v. Pelican, 154 Vt. 496, 508 n.* (1990).

40. See § 19.06, supra.

41. State v. Pelican, 154 Vt. 496, 501-02 (1990).

42. State v. Jenne, 156 Vt. 283, 288-89 (1991).