Can We Calculate Fairness and Reasonableness? Determining What Satisfies the Fair Cross-Section Requirement of the Sixth Amendment

The Impartial Jury Clause of the Sixth Amendment requires that the venire from which the state and the defendant draw a twelve-person petit jury be a fair cross-section of the community. The Supreme Court announced a three-prong test in Duren v. Missouri to help courts determine whether there has been a Sixth Amendment violation: (1 ) whether a distinctive group in the community was excluded; (2) whether the venire was not a fair and reasonable representation of the county population as a whole; and (3) whether that underrepresentation was the result of systematic exclusion. When evaluating the second prong, courts routinely turn to statistical measurements. The four statistical tests that courts have used, including the disparity-of-risk test that the Michigan Supreme Court recently employed in People v. Bryant, fall short of adequately addressing the second prong. This Note proposes two solutions. First, courts should consider the comparative-disparity-of-risk test, borrowed from the medical malpractice loss-of-chance doctrine, as the best measure of whether underrepresentative venires are not fair and reasonable in relation to the community. Second, judges should consider whether a distinctive group in the community has systematically been excluded before turning to the question of whether an underrepresentative venire is fair and reasonable in a given community. After considering whether a distinctive group has been excluded, courts may employ the statistical tests as part of their analysis but should not use thresholds to determine what is fair and reasonable.(ProQuest: ... denotes formulae omitted.)IntroductionFor over 16 months, a computer error in Kent County, Michigan, ex- cluded nearly 75% of the county's eligible juror population from jury ser- vice.1 Of the 454,000 Kent County names and addresses on the master list of those eligible for jury service, only 118,000 potential jurors received sum- monses.2 Of those people who received jury summonses, the majority of recipients were from zip codes outside the Grand Rapids metro area, exclud- ing a high percentage of the county's black population that lives in Grand Rapids.3 If the computer program had been working properly and Kent County had mailed jury summonses to the whole population for the first 3 months of 2002, then 322 summonses would have been sent to black peo- ple.4 Instead, only 163 black people received jury summonses-half the ex- pected number.5 The black population of Kent County as a whole is approximately 8.25% of the county's total population.6 Four percent of the veniremembers in Kent County were black.7In January 2002, a jury selected from 45 veniremembers8-1 black, 1 Latino, and 43 white-convicted Raymond Lee Bryant,9 a black man.10 Dur- ing the selection of the petit jury,11 Bryant's attorney noticed the venire's skewed composition and made a timely objection,12 arguing that the venire was not reasonably representative of the community13 as required by the Sixth Amendment.14 The trial court denied the motion-a decision that ul- timately reached the Michigan Supreme Court.15The Michigan Supreme Court concluded that Bryant had not estab- lished a violation of the fair cross-section requirement. 16 Its decision rested on the second prong of the prima facie fair cross-section test: whether the excluded group's representation in the venire was "fair and reasonable in relation to the number of such persons in the community."17 The court con- sidered four statistical tests to determine whether the representation of black people was fair and reasonable, including a test that no other court had previously applied-the disparity-of-risk test.18 This Note argues that each of these four prevailing statistical tests for underrepresentation is unwork- able, and it proposes two solutions.Part I examines the history and purpose of the fair cross-section re- quirement. Part II describes and explains the strengths and weaknesses of the four statistical tests courts use to determine whether a venire is fair and reasonable and argues that the existing approaches are insufficient because they are not broadly applicable and do not comport with the purposes of the fair cross-section requirement. …