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Safe Harbors from Fair-Cross-Section Challenges? The Practical Limitations of Measuring Representation in the Jury Pool


  • Some of the data employed in the analyses for this article were collected in conjunction with the NCSC State-of-the-States Survey of Jury Improvement Efforts, supported in part with a grant from the State Justice Institute (SJI-06-N-131) and private contributions to the NCSC National Jury Program. The points of view expressed in this article are those of the authors and do not necessarily reflect those of the National Center for State Courts, individual contributors to the National Jury Program, or the State Justice Institute. The authors thank G. Thomas Munsterman, Director Emeritus of the NCSC Center for Jury Studies, for recognizing that we now possessed the data with which to model the impact of a bright-line rule, and Scott Graves, Ph.D., for his solution to the niggling problem of a better methodological option than absolute and comparative disparity.

Paula Hannaford-Agor, National Center for State Courts, 300 Newport Ave., Williamsburg, VA 23185; email: Hannaford-Agor is Director of the Center for Jury Studies of the National Center for State Courts (NCSC) and adjunct faculty at the College of William & Mary School of Law; Waters is a Senior Court Research Associate with the National Center for State Courts.


The U.S. Constitution guarantees criminal defendants the right to an impartial jury selected from a jury pool that reflects the demographic composition of the geographic community served by the court. Yet there is little consensus in case law from state and federal courts about the most appropriate method of measuring demographic representation or the degree of underrepresentation that would violate the fair-cross-section requirement. Although the U.S. Supreme Court recently addressed these issues for the first time since Duren v. Missouri, its opinion in Berghuis v. Smith did little to settle the questions. In the present article, the authors use demographic information from the U.S. Census Bureau and information about jury operations in state courts from the National Center for State Courts to estimate the potential impact of competing proposals about how to measure demographic representation at different threshold levels of constitutional tolerance. Given the demographic composition of counties in the United States and the size of the jury pool in most courts, the authors find that a bright-line rule using either of the two most common measures of representation (absolute disparity and comparative disparity) would create “safe harbors” in which the courts in a majority of jurisdictions across the country would become effectively immune from fair-cross-section challenges.