Every criminal defendant in federal or state courtwho will be tried by a jury has the right to havethat jury selected from a fair cross-section of the

community. Every criminal defense attorney should beequipped to enforce that cross-section right when it is inthe client’s best interest to do so. Part I of this articleexplains the 16 things a defense attorney should knowabout fair cross-section challenges, and Part II providesa detailed analysis of two successful fair cross-sectionclaims.1

A defendant’s right to a jury selected from a faircross-section of the community is rooted in both theConstitution and statutory authority:

v First, the Sixth Amendment provides all criminaldefendants, in federal or state court, with the right toan “impartial jury.”2 The Supreme Court has held

that “an essential component” of that right is “theselection of a petit jury from a representative crosssection of the community.”3 After all, the purpose ofthe jury is to ensure that the verdict reflects the voiceof the community, and the jury cannot serve thatpurpose if distinctive groups in the community areleft out of the jury pool.4 All criminal defendants infederal or state court therefore have a constitutionalright to be tried by a jury selected from a fair cross-section of the community.

v Second, all litigants in federal court additionally havea federal statutory right, under the Jury Selection andService Act of 1968 (JSSA)5 to “grand and petit juriesselected at random from a fair cross-section of thecommunity in the district or division wherein thecourt convenes.”6

v Third, most litigants in state court have a similar statestatutory fair cross-section right.7

v Finally, many state constitutions also protect a crim-inal defendant’s fair cross-section right.8

There is a significant amount of data indicatingthat jury systems across the country underrepresentpeople of color, primarily African-Americans andLatinos.9 Defense attorneys can challenge this underrep-resentation by raising a fair cross-section claim underthe Sixth Amendment, the JSSA, and parallel state con-stitutions and statutes.

B Y N I NA W. C H E RNO F F AND JO S E PH B . K ADAN E

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The 16 Things EveryDefense Attorney Should Know About Fair Cross-Section Challenges

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I. The 16 Things a DefenseAttorney Should KnowAbout Fair Cross-Section Challenges

1. A defense attorney does notneed to see the jury beforeraising a cross-section chal-lenge; in fact, a client’s juryis irrelevant to a cross-sec-tion claim.A peculiar aspect of the right to a

jury selected from a fair cross-section ofthe community is that it extends to allaspects of the jury selection process —up until the point that an individualpetit jury is selected. The guarantee isnot that the particular jury hearing thecase reflect a cross-section of the com-munity, but rather that “the jurywheels, pools of names, panels orvenires from which juries are drawnmust not systematically exclude distinc-tive groups in the community andthereby fail to be reasonably representa-tive thereof.”10

This means that the compositionof a client’s petit jury has no bearing onthe cross-section claim. Even if theclient’s particular jury includes African-Americans, for example, in proportionto the number of African-Americans inthe community, the client’s fair cross-section claim is still viable.11 Similarly,the fact that the jury does not include aproportionate number of African-Americans is not sufficient to demon-strate a fair cross-section violation.12

Because one cannot tell by “look-ing” at a jury whether the cross-sectionright is being violated,13 it is importantfor defense attorneys to request discov-ery about the jury selection system inadvance of trial. The timing of cross-section challenges and the entitlementto discovery are discussed below.

2. The client does not need tobe a member of the under-represented group.There is no requirement that a

defendant raising a fair cross-sectionclaim must be a member of the groupallegedly excluded from jury service.14

3. The client can make a faircross-section challenge to thesystem that selected the petitjury, and/or the grand jury.The fair cross-section requirement

of the JSSA applies to both the grandand petit jury.15 The constitutional faircross-section requirement indisputablyapplies to the petit jury,16 and some

courts have held that it applies to thegrand jury as well.17

4. Courts analyze fair cross-sec-tion claims under the SixthAmendment and the JSSAusing the same standard.Courts employ the same standard

(discussed at Number 9 below) to evalu-ate fair cross-section claims under eitherthe Sixth Amendment or the JSSA.18

Courts typically use the same standardwhen evaluating claims that arise understate statutes and constitutions.19

5. A statutory violation mayexist even where there is noconstitutional cross-sectionviolation.In addition to giving a defendant the

right to a jury selected from a fair cross-section, the JSSA and many state statutesalso outline the manner in which juryselection systems must operate.Defendants are permitted to challenge thejury selection process to the extent that itsubstantially fails to operate in accor-dance with the federal and/or statestatutes.

Specifically, a defendant can “moveto dismiss the indictment or stay theproceedings against him on the groundof substantial failure to comply with theprovisions of [the JSSA] in selecting thegrand or petit jury.”20 A failure to com-ply with the requirements of the JSSA is“substantial” if it frustrates either of theJSSA’s two basic goals: “(1) randomselection of jurors, and (2) determina-tion of juror disqualification, excuses,exemptions, and exclusions on the basisof objective criteria.”21 Similarly, defen-dants can challenge jury selection sys-tems that substantially fail to complywith state statues.22 Although this articlefocuses only on vindicating the cross-section right, it is important to note thata defendant may have a claim under theJSSA or comparable state statute even inthe absence of a cross-section viola-tion.23

6. There are strict timingrequirements for statutorycross-section claims, but notfor constitutional cross-sec-tion claims. Under the JSSA, a criminal defen-

dant’s motion “to dismiss the indictmentor stay the proceedings against him onthe ground of substantial failure to com-ply with the provisions of this title” mustbe made “before the voir dire examina-tion begins, or within seven days after thedefendant discovered or could have dis-

covered, by the exercise of diligence, thegrounds therefor, whichever is earlier.”24

The timing requirement of the JSSA hasbeen interpreted very strictly.25 Statestatutes often have similar timing require-ments.26

Constitutional fair cross-sectionclaims, however, are not required to meetthe seven-day JSSA standard, or the time-liness requirements of state statutes.27

Instead, courts generally require constitu-tional challenges to the selection of thepetit jury to be raised before trial, pur-suant to Federal Rule of CriminalProcedure 12(b) or state equivalent.28

There are grounds to argue that the fail-ure to raise a challenge to the petit jurypretrial should not constitute a waiver ofthe claim,29 but they have largely beenunsuccessful.30 In any event, courts retainthe ability to grant relief from the waiverfor “good cause.”31

7. The defense does not needto allege or prove discrimina-tion at any point in a faircross-section claim; discrimi-nation is irrelevant to across-section claim.Courts sometimes make the mis-

take of insisting defendants show dis-crimination to establish a fair cross-section claim.32 This is contrary to theSixth Amendment and well-estab-lished Supreme Court doctrine.33

Defendants can certainly assert a sepa-rate claim that the jury system has dis-criminated in the selection of jurors inviolation of the Equal ProtectionClause of the Fourteenth Amendment,but that is a completely independentclaim for which the Supreme Courthas established a different standard.34

The Sixth Amendment fair cross-sec-tion claim is not concerned with dis-crimination; it is only concerned withwhether the system has produced arepresentative jury pool, whether byaccident or design.35

As a result, it is no defense to a crosssection-challenge for jury officials toassert that their policies are race neutral,or that the system was not designed toexclude, or that jury officials undertookaffirmative efforts to make the jury poolrepresentative, or that selection is doneby a computer, which is incapable of dis-crimination.36 Each of these argumentsanswers a question the SixthAmendment does not ask — was thereintentional discrimination in the juryselection process. In the context of a faircross-section claim, inadvertent,unknown, or benign decisions canestablish a constitutional violation.37

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8. In general, a substantive faircross-section claim must startwith a request for discovery.Because the defense cannot tell by

looking at a jury whether the cross-sec-tion right is being violated, it is almostalways necessary to request discoveryabout the jury selection system. The ques-tion in a cross-section claim is whethersteps in the jury selection process thatprecede the selection of petit jurors fail toinclude representative numbers of groupsin the community. Typically only thecourt and jury selection system haveaccess to information about those prelim-inary stages of the selection process.Therefore, a defendant cannot substanti-ate a cross-section claim without datasupplied through discovery.

The specific discovery requests thatdefense counsel may wish to make arediscussed below (at Number 16), as theyare linked to the substantive showing thecourt will demand from the defendant. Itmay also be important for a defense attor-ney to obtain or request funding for anexpert.38 In some cases, an expert in statis-tics, computer programming, or jury sys-tem operation will be necessary to ana-lyze the jurisdiction’s jury data.39

9. There is no threshold showingrequirement to obtain discov-ery in federal court and moststate courts.The Supreme Court has made clear

that a defendant has a right to discovery ifpreparing a motion to challenge the com-position of the jury under the JSSA. Noother affirmative showing is required. Asimilar standard applies to claims undermany state statutes, as well as to SixthAmendment claims.

Discovery Under the JSSAThe JSSA states: “The contents of

records or papers used by the jury com-mission or clerk in connection with thejury selection process shall not be dis-closed, except … as may be necessary inthe preparation or presentation of amotion” challenging the jury selectionprocess.40 The Act makes clear: “The par-ties in a case shall be allowed to inspect,reproduce, and copy such records orpapers at all reasonable times during thepreparation and pendency of such amotion.”41

The Supreme Court has accordinglyheld that under the JSSA, “a litigant hasessentially an unqualified right toinspect” jury selection records.42 “Thisright is virtually absolute: the only limita-tion on this right of access is that theinspection must be done at ‘reasonable

times.’”43 Every federal circuit court toconsider the issue — the First, Second,Fourth, Fifth, Sixth, Seventh, Eighth,Ninth, and Tenth — has likewise con-cluded that a litigant has an essentiallyunqualified right to inspect the records orpapers used by the jury commission orclerk in connection with the jury selec-tion process.44 The federal case law makesclear that, “[t]o avail himself of the rightof access to jury selection records, a liti-gant need only allege that he is preparinga motion to challenge the jury selectionprocess.”45 The unqualified nature of a lit-igant’s discovery right means that a “courtmay not premise the grant or denial of amotion to inspect upon a showing ofprobable success on the merits of a chal-lenge to the jury selection provisions.”46

Neither may a court “require a defendantrequesting access to jury selection recordsto submit with that request ‘a sworn state-ment of facts which, if true, would consti-tute a substantial failure to comply withthe provisions of [the Act].’”47 “Since theappellants’ right to inspection [i]sunqualified, whether or not the accompa-nying affidavit establishe[s] a prima faciecase of defective jury selection process isof no import.”48 In short, a “court is notfree to establish additional requirementsthat defendants must meet in order togain access to jury selection records.”49

Discovery Under State StatutesMany states have jury selection

statutes that, similarly to the JSSA, requiredisclosure of records to defendants whoare preparing a challenge to the juryselection system.50 Pursuant to most ofthose state statutes — as is true under theJSSA — there is no threshold require-ment that a defendant needs to satisfybefore obtaining discovery.51

For example, the D.C. Jury Act pro-vides for disclosure of “records or listsused in connection with the selectionprocess … in connection with the prepa-ration or presentation of a motion” chal-lenging the jury selection process.52 In anen banc case before the D.C. Court ofAppeals, the U.S. Attorney’s Office hadasserted that the statute required thedefendant to make a threshold showingbefore getting access to that discovery.53

The Court of Appeals, however, held itwas “unwilling to import into the statute[a] threshold showing requirement thatmovants would have to satisfy beforeobtaining access to materials.” 54 As thecourt explained, even a modest thresholdshowing requirement “forc[es] a litigantto put the proverbial cart before thehorse” because it requires “the litigant toprove — or prove to a lesser degree — the

merits of his or her constitutional claimsin order to garner access to the nonpublicand confidential information necessaryto prove the merits of his or her claim.”55

Discovery Under the Federal And State Constitutions

Although there is little case law onpoint, there is also a right to discovery inthe context of a constitutional claim —because the substantive fair cross-sectionright is meaningless without an entitle-ment to discovery. When the SupremeCourt found an “essentially unqualifiedright” of discovery under the JSSA, theCourt looked at the statute’s purpose inaddition to the text: “an unqualified rightto inspection is required not only by theplain text of the statute, but also by thestatute’s overall purpose of insuring‘grand and petit juries selected at randomfrom a fair cross section of the communi-ty.’”56 Because the Sixth Amendmentshares the same purpose — to guaranteejuries selected from a fair cross-section ofthe community — it follows a defendantraising a constitutional challenge is alsoentitled to discovery.

As the Supreme Court explained,“Without inspection, a party almostinvariably would be unable to determinewhether he has a potentially meritoriousjury challenge.”57 The right to challengethe jury is empty without an attendantright to discovery, because “[i]t would bevirtually impossible for defendants whoare endeavoring to ascertain if a success-ful attack on the grand [or petit] juryselection process can be advanced if thefacts necessary to prove a defect in theselection process are withheld.”58 Onlyafter such discovery is granted will defen-dants “be in a position to make informeddecisions as to whether the jury selectionprocess warrants challenge and as towhether they prefer trial by a representa-tive jury or before the court.”59

Just as the Supreme Court recog-nized that the cross-section purpose givesrise to a discovery right, so too have thefew courts that have considered the ques-tion of discovery independent of the JSSAor similar state statute.60 For example, theSupreme Court of Missouri granted adefendant’s request for disclosure of jurylist data on purely constitutionalgrounds.61 After noting that “Missouri isnot bound by [the JSSA] and has no suchstate legislation,” the court concluded thatit “is bound, however, by the United StatesSupreme Court’s determination of a statecourt defendant’s constitutional right tohave his case considered by a grand jurydrawn from a fair cross-section of hiscommunity.”62 Discovery was necessary

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because “[t]his cross-section requirementwould be without meaning if a defendantwere denied all means of discovery in aneffort to assert that right.”63

10. After obtaining discovery, thedefense must establish aprima facie violation of thefair cross-section right underDuren v. Missouri.The standard for a Sixth

Amendment fair cross-section claim wasestablished in Duren v. Missouri,64 andreaffirmed in 2010 in Berghuis v. Smith.65

Understanding the Duren test is criticalto understanding what discovery torequest: the information to which adefendant is entitled is directly linked tothe substantive showing the defendant isrequired to make under Duren.

Under Duren, a criminal defendantalleging a cross-section violation mustsatisfy a three-prong prima facie test byshowing that (1) “the group alleged to beexcluded [from the jury system] is a ‘dis-tinctive’ group in the community,” (2)“the representation of this group invenires from which juries are selected isnot fair and reasonable in relation to thenumber of such persons in the commu-nity,” and (3) “this underrepresentationis due to systematic exclusion of the

group in the jury-selection process.”66 Ifthe defendant establishes these threeprongs, he or she has established a primafacie violation of the fair cross-sectionright, and the burden shifts to the gov-ernment to show “attainment of a faircross section to be incompatible with asignificant state interest.”67

11. The first prong of the Durentest requires the defendant toidentify a distinctive group.The group that a defendant claims is

not fairly represented in the jury poolmust be a “distinctive” group in the com-munity.68 Courts routinely recognize thatAfrican-Americans, women, and Latinosare distinctive groups.69

Distinctiveness is an open-endedcategory that could arguably include anygroup where there is, as the Tenth Circuitdescribed it, “(1) the presence of somequality or attribute which defines andlimits the group (2) a cohesiveness of atti-tudes or ideas or experiences which dis-tinguishes the group from the generalsocial milieu, and (3) a community ofinterest which may not be represented byother segments of society.”70 Accordingly,some courts have recognized that groupssuch as Native Americans, Jews, andAsians are distinctive groups.71 In general,

however, courts have been reluctant todefine groups other than African-Americans, Latinos, and women as dis-tinctive.72

12. The second prong of theDuren test requires thedefendant to demonstrate adisparity between the num-ber of distinctive groupmembers in the communityand in the jury pool.The essential claim in a fair cross-

section challenge is that a distinctivegroup in the community, such asAfrican-Americans, is not sufficientlyrepresented in the jury pool. The secondDuren prong requires the defendant toidentify the amount of this disparity —just how big of a difference is therebetween African-Americans in the com-munity as compared to African-Americans in the jury pool?

Identifying the Number of DistinctiveGroup Members in the Community

The Supreme Court has relied oncensus data of the total populationwhen determining the percentage ofdistinctive group members in the com-munity.73 Although some courts haveconcluded that it is not inconsistent

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with Supreme Court case law to consid-er the 18-and-older population,74 courtshave generally recognized that the“community” is properly measured withtotal population data from the census,75

as “the Supreme Court’s acceptance ofcomparisons using total population fig-ures clearly indicates that a defendant isnot required to gather data reflectingthe age-eligible population of the dis-tinctive group in question.”76

Even courts that have identifiedthe 18 and older population as the cor-rect comparison have explicitly reject-ed the suggestion that the numbers befurther narrowed to exclude personswho would be ineligible for jury servicefor reasons other than age.77 Courtshave rejected the demand for jury-eli-gible population data because suchdata are difficult to obtain,78 oftenunreliable,79 and — most importantly— such a requirement is inconsistentwith Supreme Court precedent.80

Identifying the Number of DistinctiveGroup Members in the Jury Pool

There is no one single definition ofthe “jury pool” to which census data mustbe compared.

The Supreme Court has made clearthat “jury wheels, pools of names, panels,or venires from which juries are drawnmust not systematically exclude distinc-tive groups in the community and there-by fail to be reasonably representativethereof.”81 In other words, a defendant canestablish the second Duren prong byshowing a disparity between the numberof African-Americans in the communityand the number on the master list of alljurors, or by showing a disparity betweenthe number of African-Americans in thecommunity and the number who showedup to court for jury service and therebybecame members of jury venires, orbetween the number of African-Americans in the community and thenumber at any other stage of the juryprocess (other than the petit jury).

The limiting principle is that Duren’ssecond prong cannot be established bydemonstrating the disparity between thenumber of African-Americans in thecommunity and the number on a singlevenire or jury panel. The rationale is thata single venire or panel is such a smallsample that its make-up could be theproduct of happenstance, rather than areflection of the operation of the juryselection system.82 As mentioned above(at Number 1), this limitation means thatan attorney should not wait until seeingthe venire at the start of trial to raise a faircross-section claim. Race data from more

than one venire, however, can be suffi-cient to establish a disparity at Duren’ssecond prong.

13. There are multiple ways tomeasure disparity, and theSupreme Court has declinedto decide which methodmust be used.The Supreme Court held in 2010

that “[n]either Duren nor any other deci-sion of this Court specifies the method ortests courts must use to measure the rep-resentativeness of distinct groups in jurypools.”83 There are at least four possiblemethods or tests that could be used:absolute disparity, comparative disparity,standard deviation analysis, and proba-bility analysis.84 In practice, courts usuallyapply the absolute and comparative dis-parity tests.

Absolute Disparity“Absolute disparity in the jury selec-

tion context is defined as the differencebetween the percentage of a certain pop-ulation group eligible for jury duty andthe percentage of that group who actuallyappear in the venire.”85 In other words, if80 percent of people in the district fromwhich jurors are drawn are African-Americans and 20 percent of people onthe jury venire are African-Americans,then the absolute disparity is 60 percent.

Mathematically, absolute disparity is expressed as follows:

If x is the population propor-tion and y is the proportion onthe jury venire, both expressedin percent, then absolute dispar-ity = x − y in percent.

Example: In Berghuis v. Smith,African-Americans made up 7.28 percentof the community population (x) and 6percent of the jury venire (y), so theabsolute disparity was 1.28 percent.

Most courts start by considering theabsolute disparity figure, even where theyalso consider comparative disparity.86 Afew jurisdictions use only the absolutedisparity test.87 But as many courts haverecognized, the absolute disparity meas-ure is problematic when the relevantpopulation is a small proportion of thetotal population88 — “because the small-er the population, the less striking thenumerical differences appear.”89 Forexample, if Latinos make up five percentof the community population, theabsolute disparity will never be higherthan five percent — even if they are neversummoned for jury service. In light of

the tendency of the absolute test toobscure critical disparities, many courtshave declined to rely solely on theabsolute disparity test.90

Comparative DisparityThe comparative disparity measure

attempts to addresses the “small popula-tion” problem described above becauseit takes into account the proportion ofthe group in the community population.It is “calculated by dividing the absolutedisparity by the population figure for apopulation group … and measures thediminished likelihood that members ofan underrepresented group, when com-pared to the population as a whole, willbe called for jury service.”91 Thus it is“more likely to register the underrepre-sentation of smaller groups.”92 For exam-ple, if Latinos make up five percent ofthe community population, but onlytwo percent of the jury pool, then thecomparative disparity is 60 percent. Inother words, Latinos are 60 percent “lesslikely, when compared to the overalljury-eligible population, to be on thejury-service list.”93

Mathematically, comparative disparity is expressed as follows:

Comparative disparity figures havealso been criticized because “they too aredistorted by the small population of thedifferent minority groups.”94 While theabsolute test can understate disparities, thecomparative test can, in some cases, over-state them. The best approach for accom-modating the imperfections in the tests isto consider the results of both methods.95

Standard Deviation Analysis And Probability Analysis

“Standard deviation analysis seeksto determine the probability that thedisparity between a group’s jury-eligi-ble population and the group’s percent-age in the qualified jury pool is attrib-utable to random chance.”96 In otherwords, “the more standard deviationsthe lower the probability the result is arandom one.”97 The standard deviationmethod is closely related to a statisticalsignificance test, which calculates theprobability of the observed underrepre-sentation or greater underrepresenta-tion if the protected group were repre-sented in jury venires in accordancewith its proportion of the population.98

As a result, it depends on the samplesize, n, of jurors in the venires whoserace was determined.

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Mathematically, standard deviation is expressed as follows:

Example: Substituting theBerghuis numbers, (except forn), yields

Hence, for example, if n = 100, thestandard deviations would be .49; if nwere 1666, then the number of standarddeviations would be

n), yields

A higher standard deviation (like2.0) means that the racial disparity in ajury system is less likely to be random; itis more likely to be the result of the oper-ation of the jury selection system. A lowerstandard deviation (like .49) suggests thatany disparity in the sample is more likelythe result of random chance. Althoughthere is no official threshold, “[a]s a gen-eral rule … if the difference between theexpected value and the observed numberis greater than two or three standard devi-ations, then the hypothesis that the jurydrawing was random would be suspect toa social scientist.”99

Probability analysis is anothermethod that is sometimes used to explainthe impact of underrepresentation onsmall cognizable classes. Probabilityanalysis calculates the probability of hav-ing at least one member of the class on ajury of size 12, both from a representativesystem and from the current system.

Example: Using the Berghuisdata, the probability that a singlejury-eligible person is notAfrican-American is 1 − .0728 =0.9282. The probability thatnone of the 12 randomly selectedmembers of a potential jury areAfrican-American is then 0.9282raised to the 12th power, which is0.40, so the probability of at leastone African-American on thejury is 1 − 0.40 = .60. However, inthe system as it exists, the proba-bility of at least one African-American on the jury is 0.94raised to the 12th power, which is0.48. Consequently, the probabil-ity of at least one African-American on the jury is 0.52.

In other words, if the jury systemwere representative of the community, theprobability that there would be anAfrican-American on the jury is .60. But

the actual numbers reflect that the proba-bility that an African-American will be onthe jury is only .52. This means that theoperation of the jury selection system maybe reducing the probability of African-American representation on the jury.

Standard deviations are affected bythe size of the sample. Because the stan-dard deviation method is dependent onthe sample size, when the sample issmall, significance will not be found,while if the sample is large, significancewill be found. Thus, in a sense what isbeing measured by the standard devia-tion measure has more to do with thesample size than with the degree towhich the protected group is underrep-resented in the jury venire. Similarly, theprobability that at least one member ofthe protected group is on the jury can bea sensitive measure for small protectedgroups, but not for large ones. Sincedefendants do not have a right to have aprotected group member on their jury,the legal relevance of this measure isunclear. Courts that have used eitherstandard deviation or probability analy-sis have done so only in conjunctionwith other methods.100

14. There is no official thresholdfor the amount of disparitythat is ‘enough’ to satisfyDuren’s second prong.The Supreme Court has never speci-

fied what degree of disparity is sufficientto establish Duren’s second prong. Courtshave frequently borrowed the standardfrom equal protection cases that a dispar-ity of less than 10 percent is not enoughto establish a constitutional violation, butdefense attorneys should not acquiesce tothe adoption of the 10 percent measurefor several reasons.

First, in 2010 the Supreme Courtdeclined to address the government’sproposal that the Court adopt the 10percent standard for fair cross-sectioncases.101 Second, as the Supreme Courtnoted, using the 10 percent standardwould mean there is “no remedy forcomplete exclusion of distinct groups incommunities where the population ofthe distinct group falls below the 10 per-cent threshold.”102 Finally, the 10 percentfigure is borrowed from equal protectioncases where the standard for the degreeof disparity is arguably higher than incross-section cases.103

Indeed, courts have held that Duren’ssecond prong is satisfied where the dispar-ity was less than 10 percent.104 That said,some courts have declined to hold thatthere was a sufficient disparity when thedisparity was even more significant.105

15. The third prong of the Durentest requires the defendant todemonstrate that the dispari-ty is due to systematic exclu-sion of the distinctive group.The third prong of the Duren test

requires the defendant to show that theunderrepresentation is “due to systematicexclusion of the group in the jury-selec-tion process,” by showing that “the causeof the underrepresentation was systemat-ic — that is, inherent in the particularjury-selection process utilized.”106 InDuren, the Court held that the fact that “alarge discrepancy occurred not just occa-sionally, but in every weekly venire for aperiod of nearly a year manifestly indi-cates that the cause of the underrepresen-tation was systemic.”107

This language from Duren impliesthat the existence of a disparity over timeis sufficient to show that a disparity is“systematic,” and some courts have inter-preted it this way.108 But other courts haverequired defendants to demonstrate withmore specificity which stage of the jurysystem caused the disparity. And in 2010the Supreme Court arguably departedfrom Duren’s emphasis on the durationof the disparity in Berghuis v. Smith.109

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Although the Berghuis Court adopted thefair cross-section standard exactly as itwas articulated in Duren,110 the analysissuggests111 that a more particularizedshowing of the cause of the disparity isrequired.112

As a result, defense attorneys shouldrequest discovery about each stage of thejury selection system, and not just demo-graphic data about the venires.113 Racialand ethnic disparities can result from acci-dental or benign actions of the jury selec-tion office, such as the unintended resultsof computer programs,114 the numericincrement used to randomly select jurorsfrom the jury pool,115 the use of telephonesto summon jurors,116 or benign efforts tosend jurors to courthouses closer to theirhomes.117 Jury offices also produce unrep-resentative jury lists when they rely onvoter registration lists that are themselvesunrepresentative, but courts have general-ly rejected fair cross-section claims basedon this factor.118

16. Discovery in cross-sectionclaims includes all juryselection materials relevantto the claim. “The right to inspection extends to

all jury selection materials relevant to acomplete determination of whether agrand or petit jury has in fact been select-ed at random from a fair cross-section ofthe community.”119

Pursuant to defendants’ broad dis-covery rights, courts routinely require juryselection systems to disclose a great deal ofinformation and data.120 Perhaps mostobviously, jury systems are required todisclose demographic informationregarding the distinctive groups at issue.Courts consistently order the release ofrace, ethnicity, and gender data for eachstage of the jury selection process, for“without the demographic information” adefendant has “no way to prove the under-representation of identifiable groups.”121

Importantly, when a jury selectionsystem has failed to collect the relevantdemographic data, courts typically orderthe disclosure of information from whichracial, ethnic, and gender data can begleaned. For example, the critical impor-tance of providing defendants with “rea-sonable access to accurate informationconcerning the race and ethnicity ofprospective jurors” is illustrated by casesauthorizing disclosure of completed jurorquestionnaires when those forms includerace and ethnicity data.122 Indeed, courtsregularly allow defendants access to oth-erwise confidential jury questionnaires,123

and have even permitted defense teams tocontact jurors directly to collect race and

ethnicity information when that data wasnot otherwise available.124

Courts also routinely order the dis-closure of the master jury wheels (lists ordatabases that include the total popula-tion of potential jurors),125 and the quali-fied jury wheels (lists or databases ofjurors to be summoned for a particularvenire),126 including the names on jurylists.127 In many cases examination of theselists is required to determine whetherduplicates are being properly eliminated“[b]ecause duplication of names affectsthe randomness of selection.”128

Courts additionally require the dis-closure of data and documents related toexcuses, deferrals, or disqualifications.129

These aspects of a jury system introducethe opportunity for the exercise of discre-tion, which is at odds with the principleof random selection. “The continuingpower to excuse prospective jurors on thegrounds of suitability and undue hard-ship is highly discretionary in nature, andcourts must be alert to prevent itsabuse.”130 Courts also typically order dis-closure of data and documents related tothe summonsing process and responsesto summons,131 and of other types of juryselection records, such as informationabout proposed changes to the jury sys-tem.132 Finally, courts frequently orderjury system administrators to participatein depositions designed to improve thedefendant’s understanding of the juryselection system.133

Many disclosures required by courtsinvolve the release of jurors’ personalinformation, as the privacy interests ofjurors do not outweigh the constitutionaland statutory rights of defendants.Indeed, courts have granted access to abroad range of jury selection materials— concluding that while jury records“contain sensitive, personal informa-tion,”134 “[t]he right to a trial before a juryrepresenting a fair cross section of thecommunity is a critical constitutionalprotection and should be scrupulouslyhonored by providing defendants withreasonable access to accurate informa-tion concerning the race and ethnicity ofprospective jurors.”135 Instead of limitingthe release of information, courts haveconcluded that respect for the privacyinterests of jurors warrants the imposi-tion of a protective order — the propertool for managing discovery of sensitiveinformation.136 For although the privacyissues related to discovery are not imma-terial, they cannot be wielded to deny adefendant “access to the very materialscontaining the information necessary tothe filing of a motion” asserting a faircross-section challenge.137

Finally, although not wellpublicized,138 each federal district court isrequired to fill out and keep on file FormAO-12, which compares the gender, race,and ethnic status of persons who returnquestionnaires and are on the qualifiedwheel with the percentages of thosegroups in the community.139 Because thisis the information that would be neededfor a jury challenge, a request for the AO-12 and its supporting documentationshould be part of the initial discoveryrequest in federal court.140 Unfortunately,some courts fail to produce timelyreports141 and some courts’ AO-12 formsalso have a large proportion of missingentries for race and ethnicity data.142

After obtaining this information, adefense attorney will be equipped to arguethat the three elements of Duren’s primafacie test have been met. The burden willthen shift to the government to attempt toprove that the disparity is justified becauseit “manifestly and primarily” advances “asignificant state interest.”143

II. Examples of SuccessfulFair Cross-Section Claims

Example 1: Anzania v. State of Indiana144

Zolo Anzania (formerly RufusAverhart) was convicted of killing a policeofficer, George Yaros, in the course of abank robbery, and was sentenced todeath.145 This sentence was overturned ongrounds unrelated to the jury,146 and hewas sentenced to death a second time in1996.147 Mr. Anzania made a timely faircross-section challenge to the 1996 jurythat imposed the death sentence.148

There had been speculation in thelocal press that there was something oddabout the jury venires of Allen County,where Mr. Anzania’s trial took place. Somelocal defense attorneys speculated thatperhaps certain areas in Wayne Township,one of the townships in Allen County,were being excluded. There were reportsthat computer programs had been fixed,but nothing had been made public.

Dr. Joseph Kadane, co-author of thisarticle, was hired by the defense as theirstatistician. It turned out that the originalcomputer programs had been written inCOBOL, an old language rarely used fornew programs. Dr. Kadane was given aCOBOL expert with whom to work andthe defense attorneys conducted extensivedepositions of jury managers and com-puter personnel to understand the systemas it existed in 1996.

The first clue that something waswrong with the jury selection process

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was that the system always drew morepotential jurors than requested. Whenasked for a list of 10,000, it produced10,528, for example. When the COBOLprogram was examined, it turned outthere was a systematic reason for this.The program divided the voter list (thesole source list used) by the number ofjurors requested (say 10,000). This typ-ically resulted in a number that is notan integer, say 15.37. In order to assurethat enough jurors were being sum-moned, this number would be roundeddown to 15, and the jurors would bedivided into groups of 15, one ofwhom would be selected. Thus, if theinteger were k, this program wouldproduce a list of at least the number k,and as many as a factor of 1/k more.The program also ordered the listalphabetically by township, and withintownship by street address, and sentthe result to a second program. BecauseWayne Township is last alphabetically,all its prospective jurors were at thebottom of this alphabetized list. Table 1gives the number of jurors requested inthe relevant years.

Table 1. Jury Draws for Allen County, 1994 to 1996Year Request Size of draw Excess1994 10,000 10,528 528

1995 12,000 12,693 693

1996 14,000 14,365 365

It is estimated that Allen Countyhad 150,000 voters in this period. If so,the values of k that result would be 15,12 and 10, so the overage could havebeen as high as 666 in 1994, 1000 in1995, and 1400 in 1996. The excesses inthese years are less than these upperbounds. The second program had aninput tape with a random permutationof 10,000 numbers on it. These num-bers were used to control which personswere put in which quarterly draw. Onlythe top 10,000 on the alphabetized listof sampled voters would be assigned toquarterly draws. What impact mightthis have had on prospective jurorsfrom Wayne Township? To give somebackground on this question, Table 2gives data from the 1990 census aboutthe population of Allen County, and1995 registration data.

Thus Wayne Township had88,671/217,332 = 40.8% of the over 18population of Allen County, but only34.9% of the registered voters. The choicenot to supplement the voters list withother source lists, such as the list of driv-ers, results in a reduction in WayneTownship’s participation in juries.

Table 2. 1990 Census and 1995 RegistrationData for Allen County, IndianaArea 1990 1995

Population registeredaged 18+ voters

Wayne Township 88,671 55,136

Rest of Allen County 128,661 102,778

Total Allen County 217,332 157,914

A random sample of size 14,365 ofthe voter’s list in Allen County shouldresult in approximately (14,365) × (.349)= 5013 from Wayne Township. Becauseall of these potential jurors would be atthe bottom of the list, only 5013 -4365 =648 would actually be assigned to quar-terly draws, and hence be in jury venires.Hence, Wayne Township’s proportion ofAllen County’s juries is reduced to648/10,000 = 6.5%. What implicationsmight the underrepresentation of WayneTownship on jury venires have for Mr.Anzania’s legal rights?

The most direct route might seem tobe that the residents of Wayne Townshipconstitute a cognizable class, but courtsgenerally have not recognized residents ofa particularly geographic area as “distinc-tive” groups. There were two more solidgrounds to challenge this jury, however.The first was the statutory requirementthat jury selection be proportional to thepopulation in each Commissioner dis-trict. The 1990 census data for the threeCommissioner districts in Allen Countyare given in Table 3. These numbers arethe whole population, not the over 18population, as this is the way the Indianastatute is worded. Then the districtswould have representation given in thelast column of Table 4. There is here astrong case that Commissioner District 3,which has 32.9% of the population ofAllen County, but only 15.5% of the juryvenire, is underrepresented, violating theIndiana statute.

Table 3. 1990 Census Population ofCommissioner DistrictsCommissioner Wayne Non- Total ProportionDistrict Township Wayne

1 13,277 88,221 101,448 33.7%

2 28,969 71.576 100,545 33.4%

3 73,808 25,033 98,841 32.9%

Table 4. Proportional Representation ofCommissioner Districts on JuriesDistricts Proportional Representation Proportion

1 13,227(.065) + 88,221(.935) = 83,346 46.2%

2 28,969(.065) + 71,576(.935) = 68,807 38.2%

3 73,808(.065) + 25,033(.935) = 28,203 15.6%

The second ground on which to chal-lenge Mr. Anzania’s jury venire was thatAfrican-Americans were underrepresent-

ed in a manner that violated his right to ajury drawn from a cross-section of thecommunity. According to the 1990 census,there were 13,937 African-Americans inWayne Township 18 years of age or more,and 4,615 in other townships in AllenCounty, for a total of 18,552. Hence,among the African-Americans at least 18years and older, 75.1% live in WayneTownship. If the Allen County jury systemrepresented African-Americans in accor-dance with numbers among those 18 andolder, the jury venires would have18,552/217,332 = 8.5% African-Americans. Taking the data from 1996and the jury system in place at the time,the proportion of African-Americans inthe jury venire would be expected to be

Applying the measures of unrepre-sentativeness, the absolute disparity is.085 − .044 = 4.1%, and the relative dis-parity is .044/.085 = 48.2%. Thus, anAfrican-American has slightly over half ofthe probability of appearing on a juryvenire that they would have in a randomsystem. The probability that at least oneAfrican-American would be on a ran-domly chosen jury is

1 − (1 − .085)12 = .66 = 66%,

while that probability given the sys-tem as it operated in 1996 is

1 − (1 − .044)12 = .417 = 41.7%.149

The test of significance makes nosense in this context in that we alreadyknow that the jury system does not pro-duce a random sample of the population.

The hearing was held before a judgewho had participated in the supervisionof the jury system, and who declined torecuse himself.150 This illustrates one ofthe difficulties of bringing a jury chal-lenge. Often in such cases a judge is askedto rule on the legal adequacy of either hisown work, as in this case, or the work of afriend and colleague.

The Indiana Supreme Court ulti-mately vacated the death sentence in athree to two decision. The majority opin-ion ignored the issue of underrepresenta-tion in Commission districts,151 but heldthe racial disparity violated the statestatute.152 The opinion made it clear thatthe decision rested in part on the “‘quali-tative difference of death from all otherpunishments,’” which “‘requires a corre-spondingly greater degree of scrutiny ofthe capital sentencing determination.’”153

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Example 2: State of New Jersey v. Long154

The state charged Mr. Long with cap-ital murder, armed robbery, and weaponsoffenses.155 There had been puzzlement forsome time among the defense bar becauseof the seeming ethnic homogeneity ofvenires: there would be a predominatelyJewish venire, a mainly Italian one, etc.Mr. Long initiated a jury challenge.156 Thechallenge, similarly to the claim inAnzania v. Indiana, concerned the use ofsystematic sampling interacting badlywith the ordering of persons on the list.

The jury challenge in Long wasupheld. What were the facts that led to asuccessful challenge? The jury systemused both voter and driver lists as sources,which led to 180,000 names. However, thecensus found 130,000 people in AtlanticCounty between the ages of 18 and 74.Thus, at least 50,000 people were listedtwice and this duplication was not identi-fied by the merging program. Havingbeen listed twice, these persons wouldhave twice the chance of being selected bya random process, compared to personslisted only once. The resulting list isordered alphabetically by last name.

The jury manager decides on thenumber of jurors required. The yield, i.e.,the number of jurors that have to be sum-moned to yield a juror who actuallyserves, is believed to be four. The listlength is divided by the number of jurorsrequired, yielding an interval number k.Then every kth juror in the alphabetizedlist is summoned, yielding one-fourth ofthe number that have to be summoned.Successive runs through the list are madeby adding to k respectively 39, 41 and 43.The result of the proximity of the num-bers 39, 41 and 43 and the alphabeticalorder of the list is that persons with thesame last names are more likely to besummoned together than would be thecase under a system in which jurors werechosen independently and equally likely.

After ineligibles are eliminated, andgrand jurors selected out (again by sys-tematic sampling), the names arereordered according to the fifth letter ofthe last name, the fourth character of theaddress and the second character of thedriver’s license. A judge or designee thennames a number to be used as the intervalfor a systematic sample. Asked to choosea number between 1 and 99, 42 out of 54times a number less than 10 was selected.

A small interval number causes per-sons close in the reorganized list to bechosen. Since persons in the same familyhave the same last name and address, theywill tend to be selected to appear on thesame panels. For example, out of a total of

4,366 qualified jurors, there were 146pairs (i.e., 292 people) with another fam-ily member on the list. There were alsotwo triples and one quadruple. The prob-ability of such coincidences under a trulyrandom selection is miniscule.

The appeals court found a statutoryviolation, and concluded, “It is vital thatjuries be selected in a manner wholly freefrom taint and suspicion. … In capitalcases this responsibility is of the deepestconcern possible and may be said to beimbedded in the natural law.”157

Conclusion

Every criminal defendant who hasthe right to a jury has the right to havethat jury selected from a fair cross-sectionof the community. In turn, defendants areentitled to information about the juryselection system so that they can deter-mine whether their constitutional rightsare being violated. As cross-section viola-tions are often an invisible injury — onecannot “see” it by looking at an individualjury — it can only be exposed by the dis-covery requests of defense attorneys.

The authors welcome any feedbackfrom readers, including suggestions,questions, or updates on fair cross-sec-tion cases. The authors would also like toacknowledge the research assistance ofAisha Dennis, Samuel Litton, VanessaGarcia, and Em Lawler.

Notes1. For an extensive review of the law of

jury challenges see NATL. JURY PROJECTLITIGATION CONSULTING, JURYWORK: SYSTEMATICTECHNIQUES (2d ed., 2011-12).

2. U.S. CONST. AMEND. VI; see also Duncan v.Louisiana, 391 U.S. 145, 156 (1968) (SixthAmendment applies to the states throughincorporation via the FourteenthAmendment).

3. Taylor v. Louisiana, 419 U.S. 522, 528(1975).

4. See Strauder v. State of West Virginia,100 U.S. 303, 308 (1879) (“The very idea of ajury is a body of men composed of the peersor equals of the person whose rights it isselected or summoned to determine; that is,of his neighbors, fellows, associates, personshaving the same legal status in society asthat which he holds.”).

5. 28 U.S.C. §§ 1861-1878.6. 28 U.S.C. § 1861.7. See, e.g., ALA. CODE § 12-16-55; ARIZ. REV.

STAT. ANN. § 21-302(D); CAL. CODE CIV. PROC. § 197(a); COLO. REV. STAT. § 13-71-104(2); D.C.CODE § 11-1901; DEL. CODE ANN. tit. 10, § 4501;HAW. REV. STAT. § 612-1; IDAHO CODE ANN. § 2-202; IND. CODE § 33-28-5-9(1); IOWA CODE§ 607A.1; KAN. STAT. ANN. § 43-155; MD. CODE

ANN. CTS. & JUD. PROC. § 8-104; MISS. CODE ANN. §13-5-2; MO. REV. STAT. § 494.400; NEB. REV. STAT. §25-1601.03(1); N.Y. JUD. LAW § 500; N.D. CENT.CODE § 27-09.1-01; OR. REV. STAT. § 10.215(1);S.D. CODIFIED LAWS § 16-13-10.1; UTAH CODEANN. 1953 § 78B-1-103(1)(a); W. VA. CODE § 52-1-1; State v. Ayer, 834 A.2d 277, 295 (N.H.2003) (“The legislative policy underlying the[state jury selection] statute is that all per-sons selected for jury service should beselected at random from a fair cross sectionof the population of the area served by thecourt.”) (internal quotation and citationomitted); see also ME. REV. STAT. ANN. tit, 14 §1201-A (“It is the policy of the state that allpersons chosen for jury service be selectedat random from the broadest feasible crosssection of the population of the area servedby the court. …”); MINN. STAT. § 593.31 (same).

8. See, e.g., State v. Fredericks, 507 N.W.2d61, 64-65 (N.D. 1993) (“[W]e … read the SixthAmendment’s impartiality and fair-cross-section requirements into our state constitu-tion.”); see also People v. Currie, 87 Cal. App.4th 225, 232 (Cal. App. 2001); State v.Bowman, 509 S.E.2d 428, 434 (N.C. 1998);State v. Richie, 960 P.2d 1227, 1248-49 (Haw.1998); State v. Williams, 525 N.W.2d 538, 543(Minn. 1994); State v. Wiley, 698 P.2d 1244,1255 (Ariz. 1985), overruled on other groundsby State v. Super. Ct., 760 P.2d 541, 544 (Ariz.

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1988); State v. Anaya, 456 A.2d 1255, 1259(Me. 1983); Tugatuk v. State, 626 P.2d 95, 99(Alaska 1981); State v. Porro, 385 A.2d 1258,1260 (N.J. Super. App. Div. 1978).

9. See, e.g., The Nebraska Minority &Justice Task Force, Final Report, at 17, StateJustice Institute, (Jan. 2003) (“Federal andstate courts throughout the country havefound minority underrepresentation in jurycomposition, most notably in the makeup ofthe jury pool from which the jury is ultimate-ly selected. In fact, many researchers havefound that this is ‘the rule’ rather than theexception.”).

10. Taylor, 419 U.S. at 538 (emphasisadded); see also Pope v. United States, 372 F.2d710, 725 (8th Cir. 1967) (Blackmun, J.) (“Thepoint at which an accused is entitled to a faircross-section of the community is when thenames are put in the box from which thepanels are drawn.”) (as quoted in Lockhart v.McCree, 476 U.S. 162, 174 (1986)); UnitedStates v. Savage, No. 07-550-03, 2013 WL797417, at *5 (E.D. Pa. March 5, 2013) (recog-nizing that request for “venire panels … is arequest for the list of jurors that appeared atthe courthouse to attend juror orientation”).

11. Ambrose v. Booker, 684 F.3d 638, 645(6th Cir. 2012) (“The irrelevance of the com-position of a single venire panel is under-scored by the fact that a petitioner maybring a claim even if minorities are includedin his panel.”). This rule also reflects theabsence of any requirement to show harmor prejudice in a fair cross-section claim. See,e.g., United States v. Rodriguez-Lara, 421 F.3d932, 940-941 (9th Cir. 2005) (“The selection ofa grand or petit jury in violation of … the faircross-section guarantee is structural errorthat entitles a defendant to relief without ademonstration of prejudice.”) (citingVasquez v. Hillery, 474 U.S. 254, 263-64 (1986)(plurality and majority portions) and Taylor,419 U.S. at 530 (describing the fair cross-sec-tion requirement as “fundamental to the jurytrial guaranteed by the Sixth Amendment”).

12. An unrepresentative petit jury may,of course, reflect the fact that the representa-tion of African-Americans in the broader jurypool is not fair and reasonable, but it cannotalone establish a prime facie case of a faircross-section violation. See Ambrose, 684 F.3dat 646 (“It may be true that a venire panel’scomposition may put a petitioner on noticeof a procedural irregularity in someinstances. … However, where the minoritypopulation is comparatively small, the actualcomposition of the venire panel does notprovide reasonable notice of the existence ornonexistence of a fair cross-section claim.”).

13. See id. at 645 (Noting that “looking atthe venire panel did not provide petitionerswith notice of their claims” because “[a] peti-tioner raising this claim is challenging thepool from which the jury is drawn, and not

necessarily the venire panel directly beforehim. Accordingly, the composition of onepanel does not indicate whether a fair cross-section claim exists.”).

14. Duren v. Missouri, 439 U.S. 357, 359n.1 (1979) (“A criminal defendant has stand-ing to challenge exclusion resulting in a vio-lation of the fair-cross-section requirement,whether or not he is a member of the exclud-ed class.”). The same is true for claims underthe JSSA. United States v. Musto, 540 F. Supp.346, 351 (D.N.J. 1982) (“Standing to assertirregularities under the Act does not dependon whether the defendant is a member ofthe excluded or underrepresented class.”).

15. 28 U.S.C. § 1861 (right to “grand andpetit juries selected at random from a faircross-section of the community”).

16. Taylor, 419 U.S. at 528 (“the selectionof a petit jury from a representative crosssection of the community is an essentialcomponent of the Sixth Amendment rightto a jury trial”).

17. See, e.g., Murphy v. Johnson, 205 F.3d809, 818 (5th Cir. 2000) (“our precedent dic-tate[s] that the fair cross-section require-ment of the Sixth Amendment applie[s] tothe selection process for grand juries”);Porro, 385 A.2d at 1260 (“State constitutionalprinciples require that grand jury selectionbe so designed as to insure that juries areimpartially drawn from community cross-sections.”) (internal quotation and citationomitted); United States v. Osorio, 801 F. Supp.966, 974 (D. Conn. 1992) (“the SixthAmendment’s fair-cross-section require-ment applies to grand juries”); but see Henleyv. Bell, 487 F.3d 379, 387 (6th Cir. 2007) (rightto challenge grand jury under SixthAmendment not “clearly established”). Theselection of the grand jury, is however, sub-ject to equal protection claims under theFourteenth Amendment in state courts,Peters v. Kiff, 407 U.S. 493, 502 (1972), andunder the Fifth Amendment in federalcourts, Edmonson v. Leesville Concrete Co., Inc.,500 U.S. 614, 616 (1991) (citing Bolling v.Sharpe, 347 U.S. 497 (1954)).

18. See, e.g., United States v. Royal, 174F.3d 1, 6 (1st Cir. 1999); United States v.Rodriguez, 581 F.3d 775, 790 (8th Cir. 2009);United States v. Shinault, 147 F.3d 1266, 1270-71 (11th Cir. 1998).

19. See, e.g., State v. Bowman, 509 S.E.2d428, 434 (N.C.1998) (applying same standardto claim raised under state and federal con-stitution); Stewart v. Carroll, 154 P.3d 382. 384(Ariz. App. Div. 2007) (same); Ayer, 834 A.2d at294 (same); Tugatuk, 626 P.2d at 100 (same).

20. 28 U.S.C. § 1867(a).21. United States v. Savides, 787 F.2d 751,

754 (1st Cir. 1986); see also United States v.Carmichael, 560 F.3d 1270, 1277 (11th Cir.2009); United States v. Ovalle, 136 F.3d 1092,1100 (6th Cir. 1998); United States v.

Calabrese, 942 F.2d 218, 227 (3d Cir. 1991).22. See, e.g., COLO. REV. STAT. ANN. § 13-71-

139(1) (“Any party to a civil or criminal actionmay challenge by written motion the com-position of the juror pool for substantial fail-ure to comply with the requirements of thisarticle.”); ALASKA STAT. § 09.20.040 (same); HAW.REV. STAT. § 612-23(a) (same); IDAHO CODE ANN. § 2-213(1) (same); IND. CODE § 33-28-5-21(a)(same); ME. REV. STAT. ANN. tit. 14 § 1214 (same);MD. CODE ANN CTS. & JUD. PROC. § 8-409 (same);MICH. COMP. LAWS § 600.1354 (same); MINN. GEN.R. PRAC. 813(a) (same); N.D. CENT. CODE § 27-09.1-12(1) (same); OKLA. STAT. ANN. tit. 22 § 633A (same); UTAH CODE ANN. § 78B-1-113(2)(same); MO. REV. STAT. § 494.465(1) (same); OR.REV. STAT. § 136.005(1) (party can challenge“material departure”); S.D. CODIFIED LAWS§ 23A-19-3 (same); W. VA. CODE § 52-1-15(a)(same).

23. See, e.g., Calabrese, 942 F.2d at 229(substantial violation of the JSSA whereexcusal of a significant number of jurorsbased on knowledge of defendants was “notbased on one of the Act’s enumeratedgrounds”); Hudson v. State, 248 S.W.3d 56, 57,60 (Mo. App. W.D. 2008) (reversing convictionbecause “jury selection process substantiallyfailed to comply with [defendant’s state]statutory right to a trial by randomly select-ed jury members” where the “process wasintended to be random, but an error in thesoftware caused venire panels to be seatedin reverse chronological order with regard toage, or ‘oldest-to-youngest.’”).

24. 28 U.S.C. § 1867(a) (emphasisadded). The motion must contain “a swornstatement of facts which, if true, would con-stitute a substantial failure to comply withthe provisions of [the JSSA].” 28 U.S.C. § 1867(d). The defendant is also entitled topresent any relevant evidence in support ofthe motion. Id.

25. See, e.g., United States v. Bearden, 659F.2d 590, 595 (5th Cir. 1981) (The “timelinessrequirement … is to be strictly construed,and failure to comply precisely with its termsforecloses a challenge under the Act.”). Thereis some suggestion that noncompliancewith the timing requirement might be over-looked if “the [JSSA] and the jury selectionprocedures utilized by the district courteffectively foreclosed the filing of appellants’motion at an earlier time.” United States v.DeFries, 129 F.3d 1293, 1300 (D.C. Cir. 1997);see also United States v. Brown, 128 F. Supp. 2d1034, 1039 (E.D. Mich. 2001) (interpretingJSSA timing requirement more leniently).

26. See, e.g., COLO. REV. STAT. § 13-71-139(“The written motion shall be filed prior tothe swearing in of the jury selected to try thecase.”); S.D. CODIFIED LAWS § 23A-19-4 (same);UTAH CODE ANN. § 78B-1-113(1) (same); DEL.CODE ANN. tit. 10 § 4512(a) (jury challengemust be filed “[w]ithin 7 days after the mov-

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ing party discovers, or by the exercise of dili-gence could have discovered, the groundstherefor, and in any event before the jury issworn to try the case”); MINN. GEN. R. PRAC.813(a) (same); N.D. CENT. CODE § 27-09.1-12(1)(same); W. VA. CODE § 52-1-15(a) (same); 725ILL. COMP. STAT. § 5/114-3(a) (“Any objection tothe manner in which a jury panel has beenselected or drawn shall be raised by amotion to discharge the jury panel prior tothe voir dire examination.”); OR. REV. STAT. § 136.005(2) (same); see also HAW. REV. STAT. § 612-23(a); IDAHO CODE ANN. § 2-213(1); IND.CODE § 33-28-5-21(a); ME. REV. STAT. ANN. tit. 14§ 1214; MD. CODE ANN. CTS. & JUD. PROC. § 8-409(b)(1) (challenge must be made “[b]eforeexamination begins in a criminal case or, forgood cause shown, after a jury is sworn butbefore it receives evidence”); MO. REV. STAT. § 494.465(1) (“Such motion may be made atany time before the petit jury is sworn to trythe case or within 14 days after the movingparty discovers or by the exercise of reason-able diligence could have discovered thegrounds therefor, whichever occurs later.”).

27. See, e.g., United States v. Young, 822F.2d 1234, 1239 (2d Cir. 1987) (“[D]efendants’failure to comply with the provisions of theJury Selection Act does not preclude themfrom raising a constitutional challenge tothe makeup of the venire, based on the SixthAmendment.”); see also United States v.Grisham, 63 F.3d 1074, 1077 (11th Cir. 1995);United States v. Hawkins, 566 F.2d 1006, 1014(5th Cir. 1978); United States v. Marrapese, 610F. Supp. 991, 997-98 (D.R.I. 1985); UnitedStates v. Layton, 519 F. Supp. 946, 952 (D. Cal.1981); United States v. Marcano, 508 F. Supp.462, 465 n.4 (D.P.R. 1980); State v. Watkins, 463N.W.2d 411, 413 (Iowa 1990).

28. See, e.g., United States v. Ovalle, 136F.3d 1092, 1108 (6th Cir. 1998) (“Objectionsto the seating of the grand or petit jury mustbe filed before trial under [Rule] 12(b)(2).”);United States v. Avila, 1992 WL 75236, at *8(9th Cir. Apr. 16, 1992) (Rule 12(b) “foreclosesobjections to the petit jury array that are notmade prior to trial.”); see also Shotwell Mfg.Co. v. United States, 371 U.S. 341, 362 (1963)(not abuse of discretion to deny challengesto jury selection process raised for the firsttime more than four years after trial).

29. First, the pretrial requirement isbased on the questionable conclusion that“challenges of the petit jury are treated thesame as challenges of the grand jury.” UnitedStates v. Boulding, 412 Fed. App’x 798, 804(6th Cir. 2011) (internal quotation, citation,and modification omitted); see also, e.g.,United States v. Ballard, 779 F.2d 287, 295 (5thCir. 1986) (Rule 12(b) “requires that objec-tions to such matters as the grand and petitjury arrays must be raised by motion beforetrial”). But challenges to the grand juryaddress a “defect in the indictment,” a claim

that must be brought pretrial under the lan-guage of Rule 12(b)(3). See Comm. Note toRule 12(b)(1) and (2) [now (2) and (3)](“Among the defenses and objections in thisgroup are the following: Illegal selection ororganization of the grand jury”); Davis v.United States, 411 U.S. 233, 238 (1973) (“Rule12(b)(2) [now 12(b)(3)] precludes untimelychallenges to grand jury arrays, even whensuch challenges are on constitutionalgrounds”). In contrast, challenges to the petitjury do not challenge the indictment and soarguably should not be required to be filedpretrial under the rule. As it is clear thatgrand jury challenges implicate the indict-ment, it is undisputed that they must be filedpretrial. Second, Federal Rule of CriminalProcedure 33 should arguably allow for amotion for a new trial based on newly dis-covered evidence about defects in the juryselection process. Courts, however, havebeen reluctant to grant such motions on thegrounds that defendants could have discov-ered such errors before trial.

30. For exceptions to the general rule,see Ambrose v. Booker, 684 F.3d 638, 649 (6thCir. 2012) (“In the ordinary case, fair cross-section claims should be raised at jury selec-tion. However, where the underrepresenta-tion is as obscure as the one in this case —due to a small minority population and asmall absolute disparity — a failure to object

must be excused.”); United States v. Greene,971 F. Supp. 1117, 1137 (E.D. Mich. 1997)(“[T]he plain language of Rule 12(b) clearlydoes not require that constitutional chal-lenges to the jury selection process must bemade prior to trial.”).

31. FED. R. CRIM. P. 12(e). 32. See Nina W. Chernoff, Wrong About

the Right: How Courts Undermine the FairCross-Section Guarantee by Imposing EqualProtection Standards, 64 HASTINGS L. J. 141(Dec. 2012).

33. Test v. United States, 420 U.S. 28, 30(1975).

34. The standard for equal protectionviolations was established in Castaneda v.Partida, 430 U.S. 482, 494 (1977) and the stan-dard for fair cross-section violations(described at Number 9 herein) was estab-lished in Duren v. Missouri, 439 U.S. 357 (1979).

35. See United States v. Gelb, 881 F.2d1155, 1161 (2d Cir. 1989) (“While the equalprotection clause of the FourteenthAmendment prohibits underrepresenta-tion of minorities in juries by reason ofintentional discrimination, [t]he SixthAmendment is stricter because it forbidsany substantial underrepresentation ofminorities, regardless of … motive.” (alter-ations in original) (citation and internalquotation marks omitted).

36. See, e.g., Rodriguez-Lara, 421 F.3d at

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940; see generally Chernoff, supra note 32.37. See, e.g., Gelb, 881 F.2d at 1161; see

generally Chernoff, supra note 32.38. Isaacs v. State, 386 S.E.2d 316, 324,

325 (Ga. 1989) (noting that defendant“obtained the services of an expert to assisthim with his challenges to the jury array andwith the selection of the jury” and holdingthat “in an appropriate case, based upon asufficient showing of need, the denial offunds for expert assistance might violatedue process”).

39. Courts often comment on the qual-ifications of experts in fair cross-section chal-lenges and on the quality of the evidencethey present. Defense attorneys may there-fore want to familiarize themselves with thejudicial assessment of potential expertsbefore obtaining expert services.

40. 28 U.S.C. § 1867(f ) (emphasisadded).

41. Id. (emphasis added).42. Test, 420 U.S. at 30. 43. Layton, 519 F. Supp. at 958 (quoting

28 U.S.C. § 1867(f )).44. See United States v. Orlando-Figueroa,

229 F.3d 33, 41 (1st Cir. 2000) (“criminal defen-dants have an absolute right to inspect juryselection records”); United States v. Miller, 116F.3d 641, 658 (2d Cir. 1997) (“a defendantplainly has a right to discovery”); UnitedStates v. Curry, 993 F.2d 43, 44 (4th Cir. 1993)(defendant “entitled to inspect, reproduce,and copy the master jury list to support amotion for a new trial based upon a substan-tial failure to comply with the provisions of[the JSSA] in selecting the grand or petitjury”); Gov’t of Canal Zone v. Davis, 592 F.2d887, 889 (5th Cir. 1979) (“The Supreme Court’sdecision in [Test] is dispositive of the issue.”);United States v. McLernon, 746 F.2d 1098, 1123(6th Cir. 1984) (“The right to inspectionextends to all jury selection materials rele-vant to a complete determination of whethera grand or petit jury has in fact been selected‘at random from a fair cross-section of thecommunity.’” (quoting Test, 420 U.S. at 30));United States v. Kolibioski, 732 F.2d 1328, 1331(7th Cir. 1984) (“Criminal defendants have theunqualified right to inspect jury lists.”); UnitedStates v. Stanko, 528 F.3d 581, 587 (8th Cir.2008) (“‘a litigant has essentially an unquali-fied right to inspect jury lists’”) (quoting Test,420 U.S. at 30); United States v. Studley, 783F.2d 934, 938 (9th Cir. 1986) (“The right toinspect jury lists is essentially unqualified.”);United States v. Lawson, 670 F.2d 923, 926(10th Cir. 1982) (“The Supreme Court charac-terizes a litigant’s right to inspect jury lists asessentially unqualified.”); see also UnitedStates v. Pritt, 458 Fed. App’x 795, 800, 2012 WL265927, at *3 (11th Cir. 2012) (acknowledgingdefendant’s right to be “given the requisitematerial to ascertain the facts that, under ourprecedent, are essential to his jury composi-

tion claims”); United States v. Hsia, 2000 WL194982, *1 (D.D.C. Feb. 2, 2000) (“defendanttherefore is entitled to inspect, reproduceand copy records or papers related to theselection of the grand jury, as authorized by28 U.S.C. § 1867(f)”).

45. United States v. Royal, 100 F.3d 1019,1025 (1st Cir. 1996) (emphasis added).

46. Id. at 1025. 47. Id. (quoting 28 U.S.C. § 1867(d)); see,

e.g., Stanko, 528 F.3d at 587 (“A defendantmay not be denied this unqualified righteven when he fails to allege facts whichshow a ‘probability of merit in the proposedjury challenge, because grounds for chal-lenges to the jury selection process mayonly become apparent after an examinationof the records.”) (internal citation, quotation,and modification omitted); Layton, 519 F.Supp. at 958 (“No probability of merit needbe shown. To avail himself of this right ofaccess to otherwise nonpublic jury selectionrecords, a litigant need only allege that he ispreparing a motion challenging the juryselection procedures. There is no doubt onthis point whatsoever.”) (citation omitted);see also United States v. Marcano-Garcia, 622F.2d 12, 18 (1st Cir. 1980); Curry, 993 F.2d 44;Alden, 776 F.2d at 773, 774.

48. Canal Zone, 592 F.2d at 889. 49. Alden, 776 F.2d at 775. 50. See, e.g., DEL. CODE tit. 10 § 4513(b)

(“Records used in the selection process shallnot be disclosed, except … as necessary inthe preparation or presentation of a motionchallenging compliance with this chapter.”);HAW. REV. STAT. § 612-23(d) (“The contents ofany records or papers used by the clerk inconnection with the selection process shallnot be disclosed, except … connection withthe preparation or presentation of a motion[challenging the jury selection process]. …The parties in a case may inspect, reproduce,and copy the records or papers at all reason-able times during the preparation and pen-dency of a motion [challenging the jury selec-tion process].”); IDAHO CODE ANN. § 2-213(4)(same); IND. CODE § 33-28-5-21(e) (same); N.D.CENT. CODE § 27-09.1-12(4) (same); ME. REV. STAT.ANN. tit. 14 § 1214 (party challenging juryselection entitled to present “the testimony ofthe jury commissioners or the clerk, any rele-vant records and papers not public or other-wise available used by the jury commission-ers or the clerk and any other relevant evi-dence”); MD. CODE ANN. CTS. & JUD. PROC. § 8-409(d) (same); MINN. GEN. R. PRAC. 813(b) (same);MO. REV. STAT. § 494.465(2) (same); UTAH CODEANN. § 78B-1-113(2) (same); W. VA. CODE § 52-1-15(b) (same); Roddy v. Super. Ct., 60 Cal. Rptr. 3d307, 322 (Cal. Ct. App. 2007) (“In investigatingwhether a claim of an underrepresentativejury selection process may exist, a defendanthas certain rights to discovery.”).

51. See, e.g., MD. CODE ANN. CTS. & JUD. PROC.

§ 8-409(c) (“On a showing that a party needsaccess to a record to prepare for a hearing ona motion pending under this section, a trialjudge may allow the party to inspect andcopy a record as needed to prepare.”); Lewis v.State, 632 A.2d 1175, 1178 (Md. 1993) (recog-nizing entitlement to discovery under statestatute); OR. REV. STAT. § 10.275 (1) (“A personchallenging a jury panel … must include arequest for access to the confidential recordsin the motion challenging the jury panel. …The request must: (a) Specify the purpose forwhich the jury records are sought; and (b)Identify with particularity the relevant juryrecords sought to be released including thetype and time period of the records. (2) Thecourt may order release of the jury records ifthe court finds that: (a) The jury recordssought are likely to produce evidence rele-vant to the motion; and (b) Production of thejury records is not unduly burdensome.”);State v. Rogers, 55 P.3d 488, 493 (Or. 2002)(“ORS 136.005(1) requires only that relatorallege facts that, if true, constitute a materialdeparture from the requirements of law. Thetrial court impermissibly required relator toprove that his motion would succeed to trig-ger the statutory provisions governingrelease of the jury records that may supportthe motion.”).

California represents an exception tothe general rule, as it imposes a “reasonablebelief” threshold showing requirement. SeePeople v. Jackson, 920 P.2d 1254, 1268 (Cal.1996) (“[U]pon a particularized showing sup-porting a reasonable belief that underrepre-sentation in the jury pool or the venire existsas the result of practices of systematic exclu-sion, the court must make a reasonableeffort to accommodate the defendant’s rele-vant requests for information designed toverify the existence of such underrepresen-tation and document its nature andextent.”); Roddy, 60 Cal. Rptr. 3d at 322 (“Areasonable belief is simply a conviction ofmind arising by way of inference, a beliefbegotten by attendant circumstances, fairlycreating it, and honestly entertained.”)(internal quotations, citations, and modifica-tions omitted).

52. D.C. CODE § 11-1914(b).53. Gause v. United States, 6 A.3d 1247

(D.C. 2010).54. Id. at 1255.55. Id. at 1256.56. Test, 420 U.S. at 30 (quoting 28 U.S.C.

§ 1861) (emphasis added).57. Id. 58. State v. Ciba-Geigy Corp., 573 A.2d

944, 950 (N.J. Super. A.D. 1990); see, e.g., Royal,100 F.3d at 1025 (unqualified right to discov-ery because “without such access, a litigantwill be unable to determine whether he hasa meritorious claim”); Marcano-Garcia, 622F.2d at 18 (court erred when denied “motion

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to inspect the court’s jury selection records,and thus prevented [appellants] from estab-lishing a factual basis for their motion tostrike the jury”); Alden, 776 F.2d at 775(“Grounds for challenges to the jury selec-tion process may only become apparentafter an examination of the records,” thus“[e]ven if the defendant’s anticipated chal-lenges to the jury selection process, as artic-ulated at the time of his motion for inspec-tion, are without merit, the defendant maystill inspect the jury records.”).

59. Canal Zone, 592 F.2d at 890. 60. See Ciba-Geigy Corp., 573 A.2d at 959

(noting that in Test, the “Court did not rest itsholding solely on § 1867(f ),” but also on thestatute’s purpose).

61. State ex rel. Garrett v. Saitz, 594S.W.2d 606, 608 (Mo. 1980).

62. Id. 63. Id.; see also Ciba-Geigy Corp., 573

A.2d at 946, 947, 950 (affirming grant of a dis-covery request to defendants who claimed aright to information “upon both federal andstate constitutional precepts” and“reject[ing] the state’s contention thatdefendants are entitled to the discoverythey seek only if they meet the good causestandard,” as “[i]t would be virtually impossi-ble for defendants who are endeavoring toascertain if a successful attack on the grandjury selection process can be advanced if thefacts necessary to prove a defect in theselection process are withheld”); Mobley v.United States, 379 F.2d 768, 772 (5th Cir. 1967)(granting right to discovery pursuant to con-stitutional claim in case that arose prior tothe enactment of the JSSA).

64. 439 U.S. 357 (1979).65. 559 U.S. 314, 319 (2010). 66. Duren, 439 U.S. at 364; see also

Berghuis, 559 U.S. at 319. 67. Id. at 368.68. Id. at 365.69. See Taylor, 419 U.S. 522 (women);

Berghuis, 559 U.S. at 320 (applying fair cross-section analysis to alleged underrepresenta-tion of African-Americans); United States v.Hernadez-Estrada, 704 F.3d 1015, 1022 (9thCir. 2012) (Hispanics).

70. United States v. Test, 550 F.2d 577, 591(10th Cir. 1976) (internal quotation and cita-tion omitted); see also Ford v. Seabold, 841F.2d 677, 681-82 (6th Cir. 1988); Willis v. Zant,720 F.2d 1212, 1216 (11th Cir. 1983).

71. United States v. Yazzie, 660 F.2d 422,426 (10th Cir. 1981) (Native Americans);United States v. Gelb, 881 F.2d 1155, 1161 (2dCir. 1989) (Jews); United States v. Canady, 54F.3d 544, 547 (9th Cir. 1995) (“This court andthe Supreme Court have repeatedly recog-nized [African-Americans, Hispanics, andAsians] to be ‘distinctive groups in the com-munity.’”) (quoting Duren, 439 U.S. at 364);see also People v. Garcia, 92 Cal. Rptr. 2d 339,

347 (Cal. App. 4 Dist. 2000) (gays and lesbiansconstitute cognizable group for purposes ofequal protection claim).

72. See Sanjay K. Chhablani, Re-Framingthe ‘Fair Cross-Section’ Requirement, 13 U. PA. J.CONST. L. 931, 947 (2011).

73. Teague v. Lane, 489 U.S. 288, 301 n.1(1989) (“The second prong of Duren is metby demonstrating that the group is under-represented in proportion to its position inthe community as documented by censusfigures.”); see Duren, 439 U.S. at 365 (uphold-ing the use of six-year-old census data in faircross-section challenge). The Supreme Courthas likewise relied on census data in decid-ing equal protection challenges to the juryselection process. See, e.g., Castaneda, 430U.S. at 494 (considering “the proportion ofthe group in the total population”) (empha-sis added); Turner, 396 U.S. at 359 (evaluatingthe percentage of African-Americans in “thegeneral [county] population”).

When evaluating census data, attor-neys should bear in mind that the census“undercounts” racial and ethnic minorities.As the Supreme Court has recognized, “the[Census] Bureau has always failed to reach— and has thus failed to count — a portionof the population. This shortfall has beenlabeled the census ‘undercount.” Dep’t ofComm. v. U.S. House of Representatives, 525U.S. 316, 322, 322-23 (1999) (plurality). Theundercount has more severe implicationsfor racial and ethnic minorities that “havehistorically had substantially higher under-count rates than the population as a whole.”Id.; see also Virginia v. Reno, 117 F. Supp. 2d 46,48 (D.D.C. 2000) (“Studies by the CensusBureau demonstrate that each census hasproduced a net undercount of the popula-tion and shown a higher ‘differential under-count’ for ethnic and racial minorities. …”);Carter v. U.S. Dep’t of Commerce, 307 F.3d1084 (9th Cir. 2002) (“It is generally acceptedthat the decennial census results in a netundercount of the population, particularlywith respect to minority and disadvantagedgroups.”) (footnote omitted); Chavez v. IllinoisState Police, 251 F.3d 612 (7th Cir. 2001) (“iswidely acknowledged that the Census failsto count everyone, and that the undercountis greatest in certain subgroups of the popu-lation, particularly Hispanics and African-Americans”). Courts can consider the under-count when determining the degree of dis-parity. See, e.g., United States v. Duran DeAmesquita, 582 F. Supp. 1326, 1330 n.5 (D.C.Fla. 1984) (relying on the “general populationfigure … derived from the 1980 U.S. Census,adjusted for the generally recognized popu-lation undercount”).

74. See, e.g., Rodriguez-Lara, 421 F.3d at942 (but “where the record contains popula-tion data broken down by age, the represen-tativeness of the jury pool is to be compared

to this refined set of data for the purpose ofthe defendant’s prima facie case underDuren”); United States v. Rioux, 97 F.3d 648,657 (2d Cir. 1996).

75. See, e.g., Azania v. State, 778 N.E.2d1253, 1259 (Ind. 2002) (“Both the UnitedStates Supreme Court and the lower federalcourts have repeatedly upheld the use ofcensus figures in constitutional assaults onjury selection procedures.”).

76. Rodriguez-Lara, 421 F.3d at 942.77. See, e.g., Rioux, 97 F.3d at 657 (“We

conclude that the appropriate measure inthis case is the 18 and older subset of thepopulation, regardless of other qualifica-tions for jury service.”); United States v.Facchiano, 500 F. Supp. 896, 897 (D.C. Fla.1980) (“Census data was used to determinethe number of whites and blacks aged 18-69in the county’s population. It is judiciallynoticed that within this population are anumber of individuals who are not qualifiedto be jurors. …”); Lovell v. State, 702 A.2d 261,280 n.8 (Md. 1997) (relying on 18 and oldersubset of the population that includesnoncitizens, persons who do not speakEnglish, and institutionalized persons); seealso notes 77-79 infra.

The Ninth Circuit’s opinion inRodriguez-Lara represents one side of an“intra-circuit conflict” in the Ninth Circuit “asto whether a defendant who presents onlyevidence that includes nonjury-eligible seg-ments of the population may ever satisfy aprima facie case.” United States v. Torres-Hernandez, 447 F.3d 699, 704 (9th Cir. 2006).Without resolving the conflict, subsequentNinth Circuit panels have held only that acourt must use jury-eligible data if and whenit is presented. See id. (declining to resolveconflict and applying the principle that“when presented with various types of datato determine whether Hispanics are under-represented on grand jury venires, a courtmust rely on the statistical data that bestapproximates the percentage of jury-eligi-ble Hispanics in the district”); United States v.Martinez-Orosco, 215 Fed. App’x 693, 695 (33,1 (9th Cir. 2006) (“Our case law supports theuse of jury-eligible data when it is availableand presented to the court. We have notendorsed community data in these circum-stances.”) (emphasis added). See generally,Stephen E. Reil, Comment: Who GetsCounted? Jury List Representativeness forHispanics in Areas With Growing HispanicPopulations Under Duren v. Missouri, 2007B.Y.U. L. REV. 201 (2007).

78. See, e.g., Rodriguez-Lara, 421 F.3d at943 n.9 (quoting 28 U.S.C. § 1865(b))“[w]hereas census data are readily accessi-ble, jury-eligible population data will oftenbe quite hard for fair-cross-section claimantsto obtain, given the difficulty of sorting outfrom the general population figures the

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number of individuals who (for example) arenot citizens, who are not fluent in English, orwho are ‘incapable, by reason of mental orphysical infirmity, to render satisfactory juryservice.’”); United States v. Shinault, 147 F.3d1266, 1272 (10th Cir. 1998) (relying on censusdata and noting “there is apparently no reli-able measurement of that subset of the gen-eral population” [“the portion of the generalpopulation that is eligible to serve”]); UnitedStates v. Osorio, 801 F. Supp. 966, 978 (D. Conn.1992) (“data as to the population eligible forjury service are rarely available”); UnitedStates v. Butera, 420 F.2d 564, 570 n.13 (1st Cir.1970) (“It may be so difficult to obtain fulland accurate figures for ‘jury eligibles’ that torequire such figures would — at least insome cases — place an insuperable burdenon defendant.”), overruled on other grounds,Barber v. Ponte, 772 F.2d 982 (1st Cir. 1985);State v. Lopez, 692 P.2d 370, 377 (Idaho App.1984) (“Because of the difficulty in obtainingmore accurate figures for jury eligibility, thedefendant can present a prima facie case byshowing through the use of total populationfigures a significant underrepresentation ofa cognizable class.”) (internal quotation, cita-tion, and modification omitted).

79. See, e.g., United States v. Purdy, 946 F.Supp. 1094, 1100 (D. Conn. 1996) (“[A] meas-ure of community population which isbased [on] … the qualified voting age pop-ulation … relies upon speculative estimatesregarding the proportion and makeup ofthe population which satisfies the qualifica-tions for jury service.”); United States v. Reyes,934 F. Supp. 553, 565 (S.D.N.Y. 1996) (Thespeculative nature of the data is due in partto the fact that “[w]hile some juror qualifica-tions are embodied in bright-line rules …others require the exercise of judgment,”and “whether someone has been convictedof a felony … is virtually impossible totrack.”); Osorio, 801 F. Supp. at 978 (“[T]heCourt rejects the alternative use of regis-tered voters as an appropriate benchmark.Simply put, the government’s evidence doesnot reliably establish that this alternativebenchmark would be a better estimate ofthe jury-eligible population than the voter-age population would be.”).

80. As the Ninth Circuit observed, “TheSupreme Court has subsequently reiteratedthat ‘[t]he second prong of Duren is met bydemonstrating that the [distinctive] group isunderrepresented in proportion to its positionin the community as documented by census fig-ures.’” Rodriguez-Lara, 421 F.3d at 941 (quotingTeague, 489 U.S. at 301 n.1 (emphasis added);see also id. at 943 n.9 (“none of the SupremeCourt’s cases has … rejected a prima facieshowing of underrepresentation because of afailure to provide statistics reflecting the dis-tinctive group’s proportion in the jury-eligible— as opposed to the general or age-eligible

— population.”); Shinault, 147 F.3d at 1272(noting “defendant derived his populationdata from the most recent census, a practicethat the Supreme Court has found adequatein the past”); Ford v. Seabold, 841 F.2d 677 (6thCir. 1988) (rejecting government’s argumentthat analysis was flawed where it failed tocompare “women in the jury pools to …those eligible for jury service,” because “[i]nDuren, the Court explicitly rejected this argu-ment”); U.S. ex rel. Barksdale v. Blackburn, 610F.2d 253, 262 (5th Cir. 1980) (“The Court madeit clear that the burden of reducing generalpopulation statistics to more meaningful sta-tistics rests on the State. …”) (citingCastaneda, 430 U.S. at 488-89 n.8; Lopez, 692P.2d at 377 (“the United States Supreme Courtknowingly has refrained from compellingcriminal defendants to compile jury-eligibledata in order to show prima facie violations ofthe fair cross-section requirement.”).

81. Taylor, 419 U.S. at 538 (emphasisadded).

82. See United States v. Green, 389 F.Supp. 2d 29, 56 n.53 (D. Mass. 2005), overruledon other grounds by In re United States, 426F.3d 1 (1st Cir. 2005) (“[T]he question iswhether the underrepresentation [is] ‘inher-ent in the system used, rather than a productof random factors on one particular juryvenire.’” (quoting Cynthia A. Williams, Note,Jury Source Representativeness and the Use ofVoter Registration Lists, 65 N.Y.U. L. REV. 590,617 (1990))).

83. Berghuis, 559 U.S. at 329.84. See Kairys, Kadane & Lehoczky, Jury

Representativeness: A Mandate for MultipleSource Lists, 65 CALIF. L. REV. 776, 793-94 (1977).

85. Ramseur v. Beyer, 983 F.2d 1215, 1231(3d Cir. 1992); see also United States v. Yanez,136 F.3d 1329, 1998 WL 44544, at *2 (5th Cir.Jan. 26, 1998) (“Absolute disparity measuresthe difference between the proportion ofthe distinctive groups in the populationfrom which the jurors are drawn and theproportion of the groups on the jury list.”).

86. See, e.g., United States v. Shinault,147 F.3d 1266, 1273 (10th Cir. 1998) (“Inthis circuit, absolute disparity is the start-ing place for all other modes of compari-son.”) (internal quotation, citation, andmodification omitted).

87. See United States v. Royal, 174 F.3d 1,8, 7 n.3 (1st Cir. 1999) (citing “[t]his court’schoice of absolute disparity over compara-tive disparity” but noting that “our endorse-ment of one should not be taken as a state-ment that it is the best of all possiblemethodologies”); United States v. Sanchez-Lopez, 879 F.2d 541, 547 (9th Cir.1989) (“wehave consistently favored an absolute dis-parity analysis and have rejected a compara-tive disparity analysis”).

88. See, e.g., United States v. Chanthadara,230 F.3d 1237, 1256 (10th Cir. 2000)

(“absolute disparities are of a limited valuewhen considering small populations”);United States v. Rogers, 73 F.3d 774, 776-77(8th Cir. 1996) (“Although utilizing theabsolute disparity calculation may seemintuitive, its result understates the systematicrepresentative deficiencies; the percentagedisparity can never exceed the percentage ofAfrican-Americans in the community.”);United States v. Jackman, 46 F.3d 1240, 1247(2d Cir. 1995) (“the absolute numbersapproach is of questionable validity whenapplied to an underrepresented group that isa small percentage of the total population”);see also Berghuis, 559 U.S. at 330 n.4 (declin-ing the government’s invitation to adopt theabsolute disparity test for cross-sectioncases); Rodriguez-Lara, 421 F.3d at 944 n.10.

89. Ramseur, 524 A.2d at 219. 90. See, e.g., United States v. Weaver, 267

F.3d. 231, 243 (3d Cir. 2001) (“Because wethink that figures from both methods informthe degree of underrepresentation, we willexamine and consider the results of both.”);United States v. Chanthadara, 230 F.3d 1237,1257 (10th Cir. 2000) (“We must considerboth absolute and comparative disparitiesto determine whether a violation hasoccurred.”); United States v. Yanez, 136 F.3d1329, 1998 WL 44544, at *2 (5th Cir. Jan. 26,1998) (“Although absolute disparity is anappropriate method for dealing with jurychallenges, it is not the sole means that maybe used to establish unlawful jury discrimi-nation.”); United States v. Rodriguez, 776 F.2d1509, 1511 n.4 (11th Cir. 1985) (“the absolutedisparity method is not the sole means ofestablishing unlawful jury discrimination”);Washington v. People, 186 P.3d 594, 605 (Colo.2008) (“We hold that no specific statisticalmeasure should be excluded in a court’sanalysis of a constitutional fair cross-sectionclaim, and that a court should evaluate allthe statistical evidence presented to deter-mine whether the underrepresentation isunfair and unreasonable in violation of thedefendant’s Sixth Amendment right to a juryselected from a fair cross-section of the com-munity.”); State v. Williams, 525 N.W.2d 538,543 (Minn. 1994) (“We are unwilling to relysolely upon the ‘absolute disparity’ approachin interpreting the fair cross-section require-ment. … Rather, courts should be free to useall the statistical tools available, includingthe absolute disparity figure, the compara-tive disparity figure, standard deviations, andany other such tools.”); State v. Ramseur, 524A.2d 188, 222 (N.J. 1987) (“We will not, in thiscase, choose one test over the others as thebest method for assessing the significanceof statistical evidence.”).

91. Ramseur, 983 F.2d at 1231-32.92. Ramseur, 524 A.2d at 236.93. Berghuis, 559 U.S. at 323.94. Shinault, 147 F.3d at 1273.

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95. See note 90 supra.96. Berghuis, 559 U.S. at 324 n.1. 97. Waisome v. Port Auth. of New York and

New Jersey, 948 F.2d 1370, 1376 (2d Cir. 1991).Note that these efforts by courts to describestandard deviation analysis are a bit mis-leading, as standard deviation analysis doesnot compute the probability that the cog-nizable class is proportionately represented,but rather the probability, if it were propor-tionately represented, that the observed dis-crepancy would be as large or larger thanthat observed.

98. See Ramseur, 983 F.2d at 1232.99. Castaneda v. Partida, 430 U.S. 482,

486 (1977).100. See, e.g., People v. Bryant, 822

N.W.2d 124, 142 (Mich. 2012) (“no court inthe country has accepted [a standard-devia-tion analysis] alone as determinative in SixthAmendment challenges to jury selectionsystems.”) (internal quotation and citationomitted).

101. Berghuis, 559 U.S. at 330 n.4.102. Id. (quoting Brief for Respondent

35).103. See Green, 389 F. Supp. 2d at 55 n.52

(“[T]he 10% rule adopted by some courts is acontrivance, and one based on faulty prece-dent.”); Waller v. Butkovich, 593 F. Supp. 942,954 (M.D.N.C. 1984) (declining to adopt the10% rule because “[w]hether a fair cross sec-tion exists is entirely different from whetherintentional discrimination occurred”);Washington, 186 P.3d at 602 n.6 (“the burdenof proof for establishing that the underrepre-sentation is unfair and unreasonable in anequal protection challenge is higher than it isin a fair cross-section challenge.”).

104. See, e.g., United States v. Osorio, 801F. Supp. 966, 974 (D. Conn. 1992)(Representation was not fair and reasonablewhere absolute disparity was “3.26% forblacks (6.34% − 3.08%) and 4.30% forHispanics (5.07% − 0.77%).”).

105. See, e.g., United States ex rel.Barksdale v. Blackburn, 639 F.2d 1115, 1126-27 (5th Cir.1981) (representation on grandjury fair and reasonable when absolute dis-parity for African-Americans was 11.5%).

106. Duren, 439 U.S. at 364.107. Id. at 366.108. See, e.g., State v. Lopez, 692 P.2d 370,

377 (Idaho App. 1984) (holding that under-representation was “systematic” where therewas evidence of disparity and it was undis-puted that lists at each stage of jury selec-tion “were constructed in accordance withprocedures routinely followed by the coun-ty’s jury commissioners,” because “[t]he onlyreasonable inference from this evidence isthat the underrepresentation of Hispanicswas inherent in those procedures”).

109. 559 U.S. 314 (2010).110. Id. at 319.

111. Berghuis involved the applicationof the limited standard of review under theAntiterrorism and Effective Death PenaltyAct of 1996 (AEDPA), which restricted theCourt’s analysis to the question of whetherthe Michigan Supreme Court’s decision“involved an unreasonable application of[]clearly established federal law.” Id. at 320(quoting 28 U.S.C. § 2254 (2012)).

112. See id. at 332 (“No ‘clearly estab-lished’ precedent of this Court supportsSmith’s claim that he can make out a primafacie case merely by pointing to a host of fac-tors that, individually or in combination,might contribute to a group’s underrepresen-tation.”). In making this demand for specifici-ty, the 2010 Court seemed to be moreimpressed with Duren’s evidence than the1979 Court had been. For although Duren“established when in the selection processthe systematic exclusion [of women] tookplace,” he was not able to do so with particu-larity. Duren, 439 U.S. at 366. Instead, Durennarrowed the possibilities down to twostages of the selection process. Id. at 366-67(demonstrating with “statistics and other evi-dence” that the disparity occurred eitherwhen people were summoned for service orwhen people showed up in court at the “final,venire, stage”). The Court recognized thatDuren had not established which policy wasproducing the disparity. Duren, 439 U.S. at 367(explaining the disparity was due to either“the automatic exemption for women orother statutory exemptions”); id. at 369 (“Theother possible cause of the disproportionateexclusion of women on Jackson County juryvenires is, of course, the automatic exemptionfor women.”). Nonetheless, the Court con-cluded the underrepresentation of women“was quite obviously due to the system bywhich juries were selected. …” Id. at 367.

113. For a detailed description of thestages of jury selection, see NATL. JURY PROJECTLITIGATION CONSULTING, JURYWORK: SYSTEMATICTECHNIQUES (2d ed., West 2011-12).

114. See, e.g., People v. Ramirez, 139 P.3d64, 94 (Cal. 2006); Azania v. State, 778 N.E.2d1253, 1257-59 (Ind. 2002); People v. Bryant,No. 241442, 2004 WL 513664, at *4 (Mich. Ct.App. Mar. 16, 2004); United States v. Powell,DAILY WASH. L. RPTR., Oct. 3, 2008, at 2149 (D.C.Sup. Ct. Crim. June 17, 2008); State v. Long, 499A.2d 264, 268 (N.J. Sup. Ct. Law Div. 1985).

115. State v. Hester, 324 S.W.3d 1, 44(Tenn. 2010) (“[T]he increment used to drawnames from the driver’s license list changeswhen a new venire is selected. Thesechanges have a significant effect on thedrawing of names from the list. … [A]ssum-ing [the county’s] Hispanic population gen-erally is at the end of the list becauseHispanics disproportionately have higherdriver’s license numbers … decreasing theincrement will have a tendency to increase

the possibility that Hispanics will not be con-sidered for jury service.”).

116. See State v. LaMere, 2 P.3d 204, 221(Mont. 2000) (noting that the use of the tele-phone to summon jurors resulted in anunderrepresentative pool when 29% ofNative American households in one countyhave no phone service, while “[i]n stark con-trast … only 5% [of Anglo-American house-holds in the same county] are withoutphone service”); see also United States v.Nakai, 413 F.3d 1019, 1022 (9th Cir. 2005).

117. See, e.g., People v. Jenkins, 997 P.2d1044, 1100 (Cal. 2000); Spencer v. State, 545So. 2d 1352, 1353-54 (Fla. 1989); Alvarado v.State, 486 P.2d 891, 895 (Ala. 1971); People v.Henderson, 490 N.Y.S.2d 94, 96-97 (BuffaloCity Ct.1985).

118. See, e.g., United States v. Cecil, 836F.2d 1431, 1448 (4th Cir. 1988) (recognizingthat “the use of the voter registration lists[has] been uniformly approved by the courtof appeals as the basic source for the juryselection process” and citing cases); but seeUnited States v. Weaver, 267 F.3d 231, 244–45(3d Cir. 2001) (“if the use of voter registrationlists over time did have the effect of sizablyunderrepresenting a particular class orgroup on the jury venire, then under somecircumstances, this would violate the SixthAmendment”); Bryant v. Wainwright, 686 F.2d1373, 1378 n.4 (11th Cir. 1982) (“[I]f the use ofvoter registration lists as the origin for juryvenires were to result in a sizeable underrep-resentation of a particular class or group onthe jury venires, then this could constitute aviolation of a defendant’s ‘fair cross-section’rights under the Sixth Amendment.”); seealso United States v. Ruiz-Castro, 92 F.3d 1519,1527 (10th Cir. 1996) overruled on othergrounds by United States v. Flowers, 464 F.3d1127 (10th Cir. 2006); United States v.Armsbury, 408 F. Supp. 1130, 1139 (D. Or.1976). The cases rejecting claims based onthe use of voter lists as source lists are oftenbased on the erroneous importation of thediscrimination requirement of equal protec-tion claims. See Chernoff, supra note 32;Williams, supra note 82, at 629.

119. United States v. McLernon, 746 F.2d1098, 1123 (6th Cir. 1984).

120. The cases cited in this article are pri-marily published opinions, but as manyorders granting discovery requests areunpublished, defense attorneys will need toexamine unpublished orders in their jurisdic-tion for the most up to date legal support.Unpublished decisions can be cited for per-suasive value, see FED. R. APP. P. 32(1)(a), andcurrent federal practice calls for lawyers toacknowledge and address unpublished aswell as published opinions. See, e.g., Patrick J.Schiltz, The Citation of Unpublished Opinionsin the Federal Court of Appeals, 74 FORDHAM L.REV. 23, 43 (Oct. 2005) (“Lawyers, district court

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judges, and appellate judges regularly readand rely on unpublished decisions despiteprohibitions on doing so.”) (citation, quota-tion, and modification omitted).

121. Saitz, 594 S.W.2d at 608. See UnitedStates v. Savage, No. 07-550-03, 2013 WL797417, at *4 (E.D. Pa. March 5, 2013) (granti-ng access to “[s]preadsheets with statisticalbreakdowns by race and ethnicity” for jurorson the master wheel, qualified wheel, whowere summoned, and who served); see alsoUnited States v. Patel, No. 11-CR-20468, 2012WL 1959563, at *5 (E.D. Mich. May 30, 2012);McLernon, 746 F.2d at 1123; United States v.Holy Land Found. for Relief and Dev., 2007 WL1452489, at *1-2 (N.D. Tex. May 15, 2007);United States v. Diaz, 236 F.R.D. 470, 477 (N.D.Cal. 2006); United States v. Montini, 2003 WL22283892, * at 1 (E.D. Mich. Sept. 3, 2003);State v. Matthews, 724 So. 2d 1140, 1143 (Ala.Crim. App. 1998).

122. Commonwealth v. Arriaga, 781N.E.2d 1253, 1268 (Mass. 2003).

123. See, e.g., Miller, 116 F.3d at 658;United States v. Percival, 756 F.2d 600, 614 (7thCir. 1985); Test, 550 F.2d at 581; Savage, 2013WL 797417, at *5; United States v. Friel, 2006WL 2061395, at *2 (D. Me. July 21, 2006);Montini, 2003 WL 22283892, at *3; UnitedStates v. Jones, 1998 WL 160857, at *3 (D. Kan.Feb. 27, 1998); United States v. Ailsworth, 1994WL 539347, at *24 (D. Kan. 1994); UnitedStates v. Van Pelt, 1993 WL 23730, at *9 (D.Kan. Jan. 13, 1993); United States v. Carlock,606 F. Supp. 491, 493 (W.D. La.1985); Bailey v.

State, 493 A.2d 396, 400 (Md. App. 1985).124. See, e.g., Ramseur v. Beyer, 983 F.2d

1215, 1230 (3d Cir. 1992); Commonwealth v.Aponte, 462 N.E.2d 284, 287 (Mass. 1984);Ciba-Geigy Corp., 573 A.2d at 945.

125. See, e.g., Test, 420 U.S. at 29; Curry,993 F.2d at 44; McLernon, 746 F.2d at 1123;Test, 550 F.2d at 581; Thomas v. Borg, 159F.3d 1147, 1149 (9th Cir. 1998); Savage, 2013WL 797417, at *5; Patel, 2012 WL 1959563,at *5; United States v. Rice, 489 F. Supp. 2d1312, 1318 (S.D. Ala. 2007); Diaz, 236 F.R.D.at 481; United States v. Gotti, 2004 WL2274712, at *6 (S.D.N.Y. Oct. 7, 2004); UnitedStates v. Causey, 2004 WL 1243912, at *13(S.D. Tex. May 25, 2004); Jones, 1998 WL160857, at *3; Ailsworth, 1994 WL 539347, at*24; Van Pelt, 1993 WL 23730, at *9; Carlock,606 F. Supp. at 493; United States v. Fieger,No. 07-20414, 2008 WL 1902054, at *7 (E.D.Mich., Apr. 29, 2008).

126. See, e.g., Savage, 2013 WL 797417,at *5; Test, 550 F.2d at 581; Rice, 489 F. Supp.2d at 1318; Diaz, 236 F.R.D. at 481; Causey,2004 WL 1243912, at *13; Jones, 1998 WL160857, at *3; Ailsworth, 1994 WL 539347, at*24; Van Pelt, 1993 WL 23730, at *9; Carlock,606 F. Supp. at 493; Thomas, 159 F.3d at 1149.

127. See, e.g., Rice, 489 F. Supp. 2d at1318; Holy Land, 2007 WL 1452489, at *1-2;United States v. Shapiro, 994 F. Supp. 146, 147(E.D. N.Y. 1998).

128. People v. Taylor, 191 Misc. 2d 672,677 (N.Y. Sup. 2002); see also State v. Russo,516 A.2d 1161, 1165 (N.J. Super. L. 1986).

129. See, e.g., Savage, 2013 WL 797417,at *5; Holy Land, 2007 WL 1452489, at *1-2;Causey, 2004 WL 1243912, at *16.

130. People v. Buford, 132 Cal. App. 3d 288,299 (Cal. App. 1. Dist. 1982); see also UnitedStates v. Calabrese, 942 F.2d 218 (3d Cir. 1991).

131. See, e.g., Savage, 2013 WL 797417,at *5; Holy Land, 2007 WL 1452489, at *1-2;Diaz, 236 F.R.D. at 481; Montini, 2003 WL22283892, at *3; United States v. Hsia, 2000 WL194982, at *1 (D.D.C. 2000).

132. See, e.g., United States v. Williams,2007 WL 1223449, at *6 (D. Haw. April 23,2007); Holy Land, 2007 WL 1452489, at *1;Carlock, 606 F. Supp. at 494.

133. See, e.g. Miller, 116 F.3d at 658;United States v. Harvey, 756 F.2d 636, 643 (8thCir. 1985); Mobley, 379 F.2d at 773; Thomas,159 F.3d at 1149; United States v. Scrushy,2007 WL 1296000, at *1 n.4 (M.D. Ala. 2007);United States v. Royal, 7 F. Supp. 2d 96, 99 (D.Mass. 1998).

134. Causey, 2004 WL 1243912, at *15.135. Arriaga, 781 N.E.2d at 1268. 136. See Rice, 489 F. Supp. 2d at 1324.

Courts can require the defendant’s expert toprovide an affidavit of confidentiality beforeaccessing confidential juror information.Savage, 2013 WL 797417, at *5. Courts alsooften circumscribe the use of disclosedinformation without executing a formal pro-tective order. See, e.g., Causey, 2004 WL1243912, at *15.

137. Canal Zone, 592 F.2d at 889; see alsoUnited States v. McLernon, 746 F.2d 1098,

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1123 (6th Cir. 1984) (“We can certainly envi-sion a situation in which a defendant mustbe afforded access to the names, addresses,and demographics of those jurors whoreturned the indictment in order to vindi-cate the “unqualified” right to inspection andto insure that the jury actually represented awide spectrum of the community.”); Ciba-Geigy Corp., 573 A.2d at 945 (affirming order“which authorizes the mailing of a question-naire on the court’s stationery to each of the575 members of State Grand Juries 171-195,requesting recipients to identify their raceand ethnic background”).

138. AO-12 is not listed in the website ofthe Administrative Office of the Courts.Available at http://www.uscourts.gov/FormsAndFees/Forms/CourtForms.aspx (lastvisited May 22, 2012).

139. 28 U.S.C. § 1863(a) (“Each districtcourt shall submit a report on the jury selec-tion process within its jurisdiction to theAdministrative Office of the United StatesCourts in such form and at such times as theJudicial Conference of the United States mayspecify.”) “According to instructions providedby the Administrative Office on the form, theAO–12 form ‘is required to be completedupon ... [t]he periodic refilling of the masterwheel. …’” United States v. Hernandez-Estrada,No. 10cr0558 BTM, 2011 WL 1119063, at *11(S.D. Cal. March 25, 2011) (quoting Form AO–12: Jury Representativeness Statistics, DataCollection Instructions, General). A blank copyof this form can be found in Appendix A of N.Cherno� & J.B. Kadane, Preempting JuryChallenges: Strategies for Courts andAdministrators, 33 JUST. SYS. J. 47 (2011).

140. United States v. Fieger, No. 07-20414,2008 WL 1902054, at *7 (E.D. Mich., Apr. 29,2008) (ordering that “Defendant will be pro-vided the information contemplated underAdministrative Order No. 00-AO-060 — jurornumber, race, and Hispanic ethnicity — for (i)the entire pool of 250 potential jurors towhom summonses were issued in this case) ,and (ii) the last 15 venires drawn by the Clerkof the Court for the Detroit division”);Hernandez-Estrada, 2012 WL 6054775, at *3(defendant “had access to all AO-12s datingback to 1999, including the AO-12 for the2009 wheel, from which his grand and petitjuries were selected”).

141. See, e.g., United States v. Hernadez-Estrada, 704 F.3d 1015, 1022 (9th Cir. 2012)(recognizing that the district “has beenderelict in completing the AO-12s on time”).

142. See, e.g., Hernadez-Estrada, 704 F.3dat 1024 (The “percentages of those in thequalified wheel who did not answer the raceand ethnicity questions — 11.56% and33.81% respectively — are significant.”). Onereason for the missing data may be the guid-ance given by the Administrative Office ofthe U.S. Courts. According to L. Downey, Chief

Deputy Clerk of the U.S. District Court of theEastern District of Washington, “A missing orincomplete answer to either Question 10a(Race), Question 10b (Ethnicity) or Question11 (Sex) is not sufficient reason to return theform” and that instead, “if sampled namesinclude some jurors who did not answer therace question, they would be counted in theAO-12 report in the “Unknown” column.”Email correspondence with authors, June 18,2013. (This guidance was confirmed by tele-phone with Ed Juel of the AdministrativeOffice of the U.S. Courts.) In this respect, theAdministrative Office’s guidance is inconsis-tent with the JSSA, which requires that where“it appears that there is an omission, ambigu-ity, or error in a form, the clerk or jury com-mission shall return the form with instruc-tions to the person to make such additions orcorrections as may be necessary and toreturn the form to the clerk or jury commis-sion within 10 days.” 28 U.S.C. § 1864(a). TheNinth Circuit has suggested that if the num-ber of unknowns continues to be as signifi-cant, it could “affect the legality” of the juryselection system. Hernadez-Estrada, 704 F.3dat 1024-25.

143. Duren, 439 U.S. at 367. 144. 778 N.E.2d 1253 (Ind. 2002); see also

J.B. Kadane, (2002) Anatomy of a JuryChallenge, Chance, 15, 2:10-13, reprinted inSTATISTICS IN THE LAW, J.B. Kadane, ed., (2008).

145. 778 N.E.2d at 1255.146. Id.147. Id.148. Id. at 1260.149. A somewhat similar issue arose in

United States v. Osorio, 801 F. Supp. 966 (D.Conn. 1992), in which computer errorsresulted in the exclusion of all potentialjurors from Hartford and New Britain. Thetwo largest cities in the division, they con-tained 62.93% of the voting age Black popu-lation and 68.09% of the voting ageHispanics. See also United States v. Jackman,42 F.3d 1240 (2d Cir. 1995).

150. 778 N.E.2d at 1261. The judge ruledagainst the recusal motion and the IndianaSupreme Court held the ruling was notclearly erroneous. Id.

151. Dr. Joseph Kadane thought thiswas the stronger ground.

152. Id.153. Id. at 1262 (quoting California v.

Ramos, 463 U.S. 992, 998-99 (1983)).154. 499 A.2d 264 (N.J. Sup. Ct. Law. Div.

1985). This was another case in which Dr.Joseph Kadane, co-author of this article, washired as an expert statistician.

155. Id. at 265.156. For more information, see

PHILADELPHIA FREEDOM by David Kairys (2008).157. Id. at 271. An interesting procedural

issue developed in this case when the trialjudge consolidated similar pending motions

from other trials. 499 A.2d at 265. TheAppellate Division supported the consolida-tion, but ruled that prosecutors could opposejury challenges in other cases on the groundof timeliness. Id. When the jury challenge wasupheld, the issue arose regarding whether itapplied retroactively to all cases, perhaps allcapital cases, that had been heard in AtlanticCounty using what had then been ruled anunlawful jury system. Finding that a retro-spective ruling would “create chaos, wreakhavoc and cause pandemonium in the crimi-nal justice system,” the Superior Court, LawDivision (Criminal) decided that the opinionwould be applied only prospectively. Id. at273. This experience suggests that when ajury challenge is led in a jurisdiction, it wouldbe wise for all other defendants to make atimely motion, asking for consolidation. Thus,a favorable decision, if one comes, wouldapply to all such cases. This also puts pressureon the court hearing the evidence to moveswiftly, and may increase the chance of a suc-cessful challenge. n

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35

About the AuthorsNina W. Chernoff isan AssociateProfessor at CUNYSchool of Law.Before teaching,she was an attor-ney with the PublicDefender Servicefor the District of

Columbia and the Juvenile Law Centerof Philadelphia.

Nina W. ChernoffCUNY School of Law2 Court SquareLong Island City, NY 11101718-340-4599

nina.chernoff@law.cuny.edu

Joseph B. Kadaneis the Leonard J.Savage UniversityProfessor of Statis-tics and Social Sci-ences, Emeritus,Carnegie MellonUniversity.

Joseph B. KadaneDepartment of StatisticsCarnegie Mellon UniversityBaker Hall 232LPittsburgh, PA 15213412-268-8726

kadane@stat.cmu.edu

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