Juries
September 21, 1999
TOMORROW: Cohn & Sherwood, Munsterman, et al.
Strauder v. WV (1880)
Duren v. Missouri (1979)
Castaneda v. Partida (1977)
Taylor and Duren were easy, straightforward cases. In Duren(?) a majority opinion was joined
by almost all justices and the opinion was clear. Castaneda was more complicated – dissents.
Castaneda is a grand jury case, not a regular jury case. There is no constitutional right
guaranteed to a grand jury, only to a petty jury.
“Unfair”
“Fair”
Intentionally
unrepresented
Random
selection
Intentional
discrimination
What makes Castaneda a more difficult case?
In the other cases, the numbers speak for themselves.
Judges may be uncomfortable with statistics. Don’t want to encourage the numbers people.
Taylor
Duren
Castaneda
Population
53
54
79%
Pool
<10
15%
39%
’s pool
0
9
50%
Jury
0
0
5/12
“Key-man” system – informal method of jury selection in which political and civic leaders
recommend distinguished members of the community for their moral uprightness and high
intelligence
Powell’s dissent: In Casteneda, many of the important persons involved were MexicanAmerican – 3 out of 5 jury commissioners, the judge, 50% of Casteneda’s own pool, and of
course the sheriff (Castaneda) was Mexican-American.
Marshall (concurrence) strongly disagrees with Powell – even though you have MexicanAmericans in all these positions of power, it’s still possible to have discrimination. The
Mexican-Americans in important positions might be of a higher class and may discriminate
against other members of their own ethnic group. It’s only a white point of view that sees
Mexican-Americans as all alike.
Dissent – a number of Mexican-Americans may have been excluded for other reasons (literacy,
citizenship).
Juries
September 21, 1999
Do members of an ethnic group all have a core experience in common that no other ethnic groups
have?
EMoutz: This is a bad path to tread. Venire percentages ought to be kept close to population
percentages for the sake of public legitimacy only. Beyond that it is dangerous to assume that
people within the same ethnic groups have similar personality traits.
What constitutes a critical mass of people in a jury pool?
When figuring out a critical mass for women, should we take into account the empirical fact that
women talk less on juries?
What can be done to ensure that everyone gets jury service? Judge Cohn tried a system…
tomorrow.
Juries
September 21, 1999
From my criminal procedure notes:
D. Constitution Limits on Jury Selection
1. Selecting the venire
a. The (6th Amendment) Cross-Section Guarantee
Taylor v. Louisiana (1975, p. 1400)
“But the jury wheels, pools of names, panels or venires from which juries are drawn must not
systematically exclude distinctive groups in the community and thereby fail to be reasonably
representative thereof.”
Duren v. Missouri (1979, p. 1403)
Based on fact that women could easily opt out of jury service and a very small percentage of
women served on juries, court held that  had made out “a prima facie fair-cross-section
violation” by showing that
1. The group alleged to be excluded is a distinctive group in the community
2. The representation of this group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the community
3. This under-representation is due to systematic exclusion of the group in the jury selection
process
4. State had not carried its burden of justifying this infringement by showing attainment of a fair
cross section to be incompatible with a significant state interest.
b. Equal Protection
Fourteenth Amendment equal protection challenges to state jury selection procedures prevailed
long before the Sixth Amendment right to jury trial was applied to the states. The defendant in
an equal protection claim has to show there was an intent to discriminate – this wasn’t required
for a 6th amendment claim.
 Must show the defendant was a member of an excluded class.
 Substantial under-representation.
 Show there was an opportunity to discriminate.
 This is just a prima facie case. If the state can show a good reason, there’s no equal
protection violation.
Racial discrimination – equal protection cases:
Strauder v. West Virginia (1880, p. 1404)
It is a denial of equal protection to try a defendant before a jury where all members of his race
have been excluded by statute. (state action presumed constitutional, burden on )
Castaneda v. Partida (1977, p. 1405)
County was 79.1% Mexican-American, but over 11 years, only 39% of persons summoned for
grand jury service were Mexican-American. This fact established a prima facie case of
discrimination which was unrebutted absent evidence that racially neutral qualifications for grand
jurors resulted in the lower proportion of Mexican-Americans.