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Eighth Circuit Rejects Cross-Section Jury Challenge
Mar 27th, 2014

In those increasingly rare cases that go to trial, the defendant is entitled to a jury “selected from a fair cross-section of the community.”  Defendants like Carlous Horton can be surprised to learn that this doesn’t mean a jury pool, much less an actual jury, that actually reflects racial, gender and economic demographics (in Horton’s case, for example, his pool had no African-American jurors).  Rather, the defendant is entitled to a jury selection plan that does not systematically exclude a distinctive group in the community.  In United States v. Horton, issued on March 24, 2014, the Eighth Circuit rejected Horton’s challenge to the Western District of Missouri’s jury selection plan, noting that one venire panel without any African-American jurors does not demonstrate “systematic exclusion.”

There is a lot of research, however, indicating that jury systems across the country under-represent African-Americans and Latinos. So what would a successful cross-section challenge look like? In an excellent article published in The Champion last December, The 16 Things Every Defense Lawyer Should Know About Fair Cross Section Challenges, Nina Chernoff and Joseph Kadane explain clearly the relevant rules and strategies. The key is early discovery (which is available as a matter of right, without any additional affirmative showing). As they elaborate:

Because the defense cannot tell by looking at a jury whether the cross-section right is being violated, it is almost always necessary to request discovery about the jury selection system. The question in a cross-section claim is whether steps in the jury selection process that precede the selection of petit jurors fail to include representative numbers of groups in the community. Typically only the court and jury selection system have access to information about those preliminary stages of the selection process. Therefore, a defendant cannot substantiate a cross-section claim without data supplied through discovery . . .

It may also be important for a defense attorney to obtain or request funding for an expert.  In some cases, an expert in statistics, computer programming, or jury system operation will be necessary to analyze the jurisdiction’s jury data.


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JaneAnne Murray is a criminal defense lawyer in Minneapolis.

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