Constitutionalizing Jury Selection in Criminal Cases: A Critical Evaluation

Georgetown Law Journal, Feb 1998 by Leipold, Andrew D

ANDREW D. LEIPOLD*

INTRODUCTION

The Supreme Court has had more to say about who sits on criminal juries in the last twenty years than it did in the previous 180. For most of our legal history, decisions about who would serve on grand or trial juries were matters for local commissioners and court clerks, not the federal courts.l With one dramatic exception-a ruling that racial minorities could not be systematically excluded from jury service2-and a few quieter ones,3 the jury selection process prior to the mid-1970s had avoided the "constitutionalization" that had changed the shape of so many other pretrial procedures.4

When the Court finally intervened, it did so in a big way. In 1975, the Court ruled that state criminal defendants have a Sixth Amendment right to a jury drawn from a "fair cross section of the community."5 Court officials no longer had a duty just to avoid intentional discrimination when calling citizens for jury service; now they had to ensure that no "distinctive group" was significantly underrepresented in the jury pool. Under this fair cross-section requirement, a defendant could challenge the selection process without proving intentional discrimination by state actors.

In 1986, the Court took an even bigger step. There had been a long tradition in some parts of the country of giving African-American citizens an equal opportunity to be considered for jury service, but then removing as many African-Americans as possible from the final jury panel through the use of peremptory challenges.6 So in Batson v. Kentucky,' the Court decided to give the Equal Protection Clause some muscle; now if it even appeared that a prosecutor was using her peremptories to limit the number of minority jurors, the court would require an immediate explanation of why certain jurors were struck,8 until then an unheard of requirement? If the judge thought the prosecutor's explanation for the peremptory strikes was pretextual, the peremptories would be disallowed.'*

Batson was a dramatic intervention into the pretrial process, but the Court was not finished yet. Over the next ten years the Court proceeded to give the "Batson doctrine" breathtaking scope: in short order, it applied the prohibition on race-based peremptories to defense counsel as well as prosecutors,12 to civil as well as criminal cases,'3 and to cases in which the defendant and the struck juror were of different races.'4 Perhaps most importantly, the doctrine has expanded beyond race; peremptory strikes based on the juror's sex are now forbidden as well.15

There were good reasons for the Court's expansive use of the Sixth Amendment and Equal Protection Clause. Efforts to keep blacks, women, and other groups from serving on juries were wide-spread and long-standing, and the Court properly concluded that these efforts were inconsistent with the notions of equality that were evolving in other areas of the law. On a more fundamental level, the Court's recent interest in the selection process has acknowledged what lawyers, defendants, and judges have always known: deciding who sits on a criminal jury is a deadly serious business. Defense counsel and prosecutors alike realize that the ability to shape a jury can have an important, even decisive, impact on trials, regardless of the strength of the evidence. Thus, it is only a slight exaggeration to say that the battle over who sits on juries is a battle over the content of the criminal justice dispensed in this country.

We are now two decades into the world of constitutionalized jury selection, making this a good time to evaluate the Supreme Court's efforts and to give them a grade. Although there has been some scholarly writing on the crosssection requirement (in my view, surprisingly little), and a great deal of writing about the equal protection limits on peremptories, there has been almost no effort to examine these requirements together. My hope is that by considering these two developments side-by-side, we can see more clearly where the Court's efforts have succeeded or failed, and whether the fair cross-section and Batson doctrines are complementary or in conflict.

My thesis is that the Court has done some good things to jury selection practices-the results of the cross-section and Batson line of cases have been largely correct-but in the process the Court's decisions have caused serious jurisprudential problems. Part I of this article examines the fair cross-section requirement. It notes that the origins of the doctrine are obscure and the Court's rationale for the requirement surprisingly weak. More ominously, the Court's construction of this Sixth Amendment right conflicts with its second effort at constitutionalization: the Batson doctrine's limits on peremptory challenges. Perhaps as a result of this jurisprudential confusion, the cross-section requirement has been interpreted by lower courts in a way that makes the doctrine nearly irrelevant.

Part II moves in a different and more radical direction. It argues that the Court's interpretation of the Batson line of cases cannot logically be limited to peremptory exclusions based on race and gender. Under standard constitutional jurisprudence, the Batson rationale should prevent the peremptory removal of jurors because of their political views, their group memberships, much of their prior involvement with the justice system, or for many other reasons for which jurors are now routinely excused. For example, if Batson is to be taken seriously, the peremptory removal of liberals, members of the National Rifle Association (NRA), former jurors, single mothers, and those who have filed lawsuits stands on shaky constitutional ground. Such a dramatic change in the jury selection process may or may not be desirable, but the Court's jurisprudence and logic pull us strongly in that direction.