Hannaford-Agor 5.2 5/24/2011 7:53 PM
761
SYSTEMATIC NEGLIGENCE IN JURY
OPERATIONS: WHY THE DEFINITION OF
SYSTEMATIC EXCLUSION IN FAIR CROSS
SECTION CLAIMS MUST BE EXPANDED
Paula Hannaford-Agor
*
T
ABLE OF CONTENTS
I. Introduction ........................................................................................... 762
II. Overview of Contemporary Fair Cross Section Jurisprudence ....... 765
A. Distinctive or Cognizable Groups ................................................ 766
B. Fair and Reasonable Representation .......................................... 766
C. Systematic Exclusion ..................................................................... 769
D. Nonsystematic Exclusion .............................................................. 772
1. Examples of Nonsystematic Exclusion .................................. 772
2. Underrepresentation Due to Socioeconomic Factors
Is Generally Ruled to Be Nonsystematic Exclusion ............ 775
3. Ineffective Court Policies and Practices Can Lead to
Systematic Exclusion ............................................................... 777
III. Practical Remedies for Nonsystematic Exclusion ............................. 779
A. Using Multiple Source Lists to Create a More Inclusive and
Representative Master List ........................................................... 779
B. Increasing the Renewal Frequency of the Master List to
Improve Accuracy .......................................................................... 782
C. Improving Jury Summons Response Through Effective
Enforcement ................................................................................... 783
D. Altering Length of Service and Compensation of Jurors to
Minimize Excusal Rates and Increase the Ability to Serve ...... 785
IV. A Negligence Theory of Jury System Management.......................... 788
V. Conclusion ............................................................................................. 797
* Director, Center for Jury Studies of the National Center for State Courts,
Williamsburg, Virginia; B.A., George Mason University, 1991; M.P.P., College of
William and Mary, 1995; J.D., College of William and Mary, 1995. The author wishes
to thank Professor Allison Orr Larsen, Hon. Gregory E. Mize, and G. Thomas
Munsterman for helpful comments on an earlier draft of this Article. Points of view
expressed in the Article are those of the author and do not necessarily reflect the
opinions or policies of the National Center for State Courts.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
762 Drake Law Review [Vol. 59
I.
INTRODUCTION
The Sixth Amendment to the United States Constitution guarantees
the right of criminal defendants to “a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been
committed . . . .”
1
Interpretation of this provision by the Supreme Court
has made it clear the phrase “impartial jury of the State and district
wherein the crime shall have been committed” requires the jury be selected
from “‘a representative cross-section of the community.’”
2
This phrase—a
representative or fair cross section of the community—operates as legal
shorthand for volumes of caselaw defining (1) the different types of groups
making up a “community,”
3
(2) the proper method of measuring
representation and the extent of deviation that is unfair for constitutional
purposes,
4
and (3) the lengths to which courts are obligated to go in
ensuring defendants’ rights are adequately protected.
5
In Duren v. Missouri, the Supreme Court articulated a three-prong
test defendants must satisfy to establish a prima facie violation of the fair
cross section requirement:
(1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that 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; and (3) that this
underrepresentation is due to systematic exclusion of the group in the
1. U.S. CONST. amend. VI.
2. Taylor v. Louisiana, 419 U.S. 522, 528 (1975). Congress codified this
requirement utilizing the language “fair cross section.” Jury Selection and Service Act
of 1968, Pub. L. No. 90-274, § 101, 82 Stat. 53, 54 (codified at 28 U.S.C. § 1861 (2006)).
3. See, e.g., United States v. Gelb, 881 F.2d 1155, 1161 (2d Cir. 1989) (citing
Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617–18 (1987)) (finding Jews
constitute a distinctive group for purposes of the Sixth Amendment); State v. Fulton,
566 N.E.2d 1195, 1201 (Ohio 1991) (finding members of the Amish religion comprise a
distinctive group).
4. See, e.g., United States v. Clifford, 640 F.2d 150, 155–56 (8th Cir. 1981)
(considering the concepts of “absolute disparity” and “comparative disparity,” along
with the two concepts’ appropriate percentage difference).
5. See, e.g., United States v. Purdy, 946 F. Supp. 1094, 1103 (D. Conn. 1996)
(quoting United States v. Rioux, 930 F. Supp. 1558, 1578 (D. Conn. 1995)) (“‘[T]he
Sixth Amendment does not impose an affirmative obligation on the courts to
counteract [such private sector influences as voting patterns, demographic trends, and
cultural differences].’” (alteration in original) (citations omitted)).
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 763
jury-selection process.
6
It is fairly well-settled that the first prong of Duren refers to gender,
race, and ethnicity,
7
or in rare circumstances, religious affiliation
8
and
national origin.
9
Most of the reported cases over the past three decades
have tended to focus on Duren’s second prong, specifically the appropriate
way to measure underrepresentation and the extent of underrepresentation
that violates constitutional norms.
10
As a practical matter, the amount of
underrepresentation must be substantial, and few defendants are able to
satisfy this second prong.
11
With few exceptions, the cases that have
survived the hurdle of Duren’s second prong ultimately fail because the
underrepresentation was not the result of “systematic exclusion.”
12
Courts
have consistently held the Constitution cannot hold trial courts accountable
for protecting the rights of defendants if they lack the ability to prevent or
6. Duren v. Missouri, 439 U.S. 357, 364 (1979). The three-prong test was
drawn from Justice White’s opinion in Taylor v. Louisiana. See id. at 358–59 (citing
Taylor v. Louisiana, 419 U.S. 522 (1975)). Taylor was the first Supreme Court case to
“squarely h[o]ld that the exclusion of women from jury venires deprives a criminal
defendant of his Sixth Amendment right to trial by an impartial jury drawn from a fair
cross section of the community.” Taylor, 419 U.S. at 535–36.
7. See, e.g., Lockhart v. McCree, 476 U.S. 162, 175 (1986) (“Our prior jury-
representativeness cases . . . have involved such groups as blacks, women, and
Mexican-Americans . . . . [E]xclusion . . . on the basis of some immutable characteristic
such as race, gender, or ethnic background, undeniably gave rise to an ‘appearance of
unfairness.’” (citations omitted)).
8. See, e.g., Fulton, 566 N.E.2d at 1201 (“In construing the standard set forth
in Duren we find that members of the Old Order Amish religious faith do comprise a
‘distinctive’ group.”).
9. See, e.g., Hernandez v. Texas, 347 U.S. 475, 479–80 (1954) (“The exclusion
of otherwise eligible persons from jury service solely because of their ancestry or
national origin is discrimination prohibited by the Fourteenth Amendment.”).
10. See, e.g., Rioux, 97 F.3d at 655–58 (citations omitted) (focusing on the
second prong and contrasting the statistical decision theory, comparative disparity
method, and the absolute disparity–absolute numbers method to determine whether
underrepresentation of blacks and Hispanics was constitutionally significant).
11. See People v. Smith, 615 N.W.2d 1, 10 (Mich. 2000) (“[A]lthough
defendant could have expected sixty-eight black prospective jurors in the qualified jury
pool, the standard deviation for a purely random sample is twenty-six, so the instant
allocation is not statistically significant.”).
12. See Rioux, 97 F.3d at 658 (citing Duren v. Missouri, 439 U.S. 357, 366
(1979)) (“[I]f we assume for the sake of argument that Rioux has established an unfair
underrepresentation, he is impaled on the third prong of the Duren test . . . [and]
[e]ven if [statistics can prove systematic exclusion,] they would have to be of an
overwhelmingly convincing nature.”).
Hannaford-Agor 5.2 5/24/2011 7:53 PM
764 Drake Law Review [Vol. 59
control the factors that undermine or interfere with those rights.
13
Hence,
no constitutional violation occurs when underrepresentation is the result of
nonsystematic factors.
14
This Article argues that in the context of fair cross section
jurisprudence, courts’ ability to control, or at least greatly mitigate, the
extent of minority underrepresentation due to nonsystematic factors is
greatly underestimated. Over the past forty years, courts have
implemented a number of effective practices to ensure an inclusive and
representative master jury list and to minimize undeliverable, nonresponse
and failure-to-appear, and excusal rates. All of these techniques
demonstrably improve the demographic representation of the jury pool.
The vast majority of courts employ these techniques on a routine basis. By
perpetuating the misconception that courts have no responsibility to
address causes of underrepresentation other than those inherent in the
system itself, caselaw has created a functional safe harbor in which courts
can ignore substantial minority underrepresentation in their own jury pools
as long as they can plausibly deny actively contributing to the problem.
Indeed, by exempting minority underrepresentation caused by
nonsystematic factors from constitutional enforcement, these cases actually
provide some disincentive for some courts to implement effective jury
management practices in their routine summoning and qualification
procedures.
Part II provides a brief overview of contemporary fair cross section
jurisprudence with an in-depth examination of several examples of
systematic and nonsystematic exclusion that have formed the basis of
various jury challenges in recent years. Part III describes a number of
proven jury management practices that are highly effective remedies for
many of the nonsystematic factors associated with minority
underrepresentation. Part IV proposes a negligence theory of jury system
management and argues that if a court’s failure to manage its jury system in
a reasonably effective manner contributes to legally insufficient minority
representation in the jury pool, the court’s negligent jury management is
itself systematic exclusion. Finally, the Article concludes with some
caveats about the reach of this theory due to limited court resources and
the legal deference given to state policymakers with respect to
13. See, e.g., United States v. Biaggi, 909 F.2d 662, 677 (2d Cir. 1990)
(discussing underrepresentation of African-Americans and Hispanics in the jury venire
as influenced by those groups’ failure to register to vote).
14. See id.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 765
qualification, exemption, and excusal requirements for jury service.
II.
OVERVIEW OF CONTEMPORARY FAIR CROSS SECTION
JURISPRUDENCE
The fair cross section requirement derives principally from the Sixth
Amendment right to an impartial jury and the Equal Protection Clause of
the Fourteenth Amendment.
15
These constitutional provisions prohibit
minorities from being excluded from the jury pool systematically or
intentionally.
16
These provisions may also be supplemented by state
constitutional or statutory requirements.
As noted above, the contemporary test to determine whether a
violation of the fair cross section has occurred is the Duren test. In Duren,
the Court addressed the question of whether an automatic exemption from
jury service offered to women was unconstitutional given the percentage of
women in the pool from which the jury was selected was reduced from 46%
of the community to 15% of the pool from which the defendant’s jury was
selected.
17
The Court noted once the defendant has met the three-prong
test, thereby establishing a prima facie violation of the fair cross section
requirement, the burden shifts to the state to demonstrate that “attainment
of a fair cross section [is] incompatible with a significant state interest.”
18
Duren made it clear, however, that the states retain broad discretion to
define eligibility qualifications and exemption criteria for jury service.
19
15. See Taylor v. Louisiana, 419 U.S. 522, 525–26 (1975).
16. The historical progression of fair cross section jurisprudence is interesting:
[T]he Sixth Amendment and Equal Protection Clause jurisprudence have
tended to merge over time, but originally each provision had slightly
different procedural requirements. In addition, the Equal Protection
Clause cases tended to focus on grand jury selection procedures while
Sixth Amendment cases tended to focus on petit (trial) jury procedures.
Some court opinions addressing alleged fair cross section violations will
review the facts of the case under both jurisprudential theories separately.
N
AT’L CTR. FOR STATE COURTS, JURY MANAGERS’ TOOLBOX: A PRIMER ON FAIR
CROSS SECTION JURISPRUDENCE 1–2 (2010) [hereinafter NCSC PRIMER], available at
http://www.jurytoolbox.org/more/Primer%20on%20Fair%20Cross%20Section.pdf; see
also Robert C. Walters, Michael D. Marin & Mark Curriden, Jury of Our Peers: An
Unfulfilled Constitutional Promise, 58 SMU
L. REV. 319, 335–43 (2005).
17. Duren, 439 U.S. at 365–66.
18. Id. at 368.
19. Id. at 367–68.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
766 Drake Law Review [Vol. 59
A. Distinctive or Cognizable Groups
A “distinctive” group for fair cross section purposes often
encompasses groups that see themselves as distinct from other groups, are
seen by others as a distinct group, and hold values not necessarily held by
other groups. Many court opinions also refer to these groups using equal
protection terminology of “cognizable” groups.
20
In most instances, these
groups are defined by immutable characteristics—especially gender, race,
and ethnicity—and are recognized as valid groups under both Sixth
Amendment and Equal Protection Clause criteria.
21
Some courts have also
found groups characterized by religious affiliation or national origin to be
distinctive groups under the Sixth Amendment.
22
In most instances,
however, distinctive groups characterized by religious affiliation have such
a strongly cohesive community that the religious affiliation is similar to
ethnicity in terms of its cultural significance—Jews in New York City
23
and
Amish persons in Ohio,
24
for example.
B. Fair and Reasonable Representation
The second requirement under Duren is the representation of the
group alleged to be excluded is not fair and reasonable compared to the
proportion of that group in the community.
25
An important caveat related
to this requirement is the relevant “community” consists of individuals who
are eligible for jury service in the jurisdiction—they are qualified for jury
service.
26
To qualify for jury service in most jurisdictions, the person must
be a United States citizen, reside in the geographic area served by the
court, have reached the state’s age of majority, be able to speak and
understand English, and not be subject to other legal disqualifications, such
as having a previous felony conviction or being mentally incompetent.
27
In
many jurisdictions, these qualification requirements result in significant
20. See, e.g., United States v. Gelb, 881 F.2d 1155, 1161 (2d Cir. 1989) (“Jews
are a cognizable group . . . .”).
21. Under Supreme Court doctrine interpreting the Fourteenth
Amendment’s Equal Protection Clause, these three demographic characteristics are
accorded strict scrutiny, which requires the government to offer a compelling
justification for disparate treatment.
22. See, e.g., Gelb, 881 F.2d at 1161.
23. Id.
24. State v. Fulton, 566 N.E.2d 1195, 1201 (Ohio 1991).
25. Duren v. Missouri, 439 U.S. 357, 364 (1979).
26. See Berghuis v. Smith, 130 S. Ct. 1382, 1385 (2010).
27. See, e.g., 28 U.S.C. § 1865 (2006) (listing qualifications for jury service in
the district courts).
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 767
differences between the demographic characteristics of the jury-eligible
population and those of the total population. For example, the jury-
eligible population for communities with large Hispanic or Asian
populations is often proportionately much smaller than that of the total
population, as individuals in those groups are disqualified due to
noncitizenship or the inability to speak and understand English.
With respect to how the representation of distinctive groups in the
jury pool compares to their representation in the community, the law does
not require that demographic characteristics exactly mirror one another.
28
Some deviation ordinarily occurs due to the random selection process.
Several measures can be used to determine the extent to which the jury
pool demographics differ from those of the community. The two measures
most frequently used by courts are absolute disparity and comparative
disparity.
29
Absolute disparity describes the numerical difference in the
representation of the distinctive group. In Duren, for example, the
absolute disparity for women was 39.5%.
30
Very few court opinions specify
a threshold value over which the absolute disparity signifies a
constitutional violation, but in the cases in which a constitutional violation
was found, the absolute disparity was generally 10% or more.
31
Most
28. See, e.g., United States v. Biaggi, 909 F.2d 662, 677 (2d Cir. 1990) (citing
Alston v. Manson, 791 F.2d 255, 258 (2d Cir. 1986)) (stating a jury selection system that
“significantly” underrepresents a minority group may violate the fair cross section
analysis).
29. See, e.g., People v. Smith, 615 N.W.2d 1, 8–9 (Mich. 2000) (“Most
frequently, courts employ the absolute disparity test in Sixth Amendment cases. . . .
Courts [also] frequently discuss the second method, comparative disparity . . . .”).
Courts also employ a third test—the Standard Deviation test—although this test is
typically employed only in Fourteenth Amendment cases and courts have stated,
“‘[N]o court in the country has accepted [a standard deviation analysis] alone as
determinative in Sixth Amendment challenges.’” Id. at 9–10 (alteration in original)
(quoting United States v. Rioux, 97 F.3d 648, 655 (2d Cir. 1996)); see also People v.
Bryant, No. 280073, 2010 WL 2836119, at *4 (Mich. App. July 20, 2010). A number of
additional measures of representational disparity are often used by expert witnesses
testifying in jury challenges. These include statistical significance tests, which indicate
whether the amount of disparity reflects an actual difference or is simply the result of
random chance in the selection process, and disparity of risk analyses, which quantify
the representational difference in terms of the probability the jury pool would have the
same percentage of the distinctive group as the result of random chance. Richard
Seltzer, John M. Copacino & Diana Roberto Donahoe, Fair Cross-Section Challenges
in Maryland: An Analysis and Proposal, 25
U. BALT. L. REV. 127, 141 (1996).
30. Fifty-four percent (54%) women in the community minus 14.5% women
in the jury pool equals 39.5% absolute disparity. Duren, 439 U.S. at 362.
31. See, e.g., United States v. Rioux, 930 F. Supp. 1558, 1570 (D. Conn. 1995)
Hannaford-Agor 5.2 5/24/2011 7:53 PM
768 Drake Law Review [Vol. 59
courts that have adopted absolute disparity as the primary measure of
underrepresentation have ruled that absolute disparities less than 10% are
insufficient as a matter of law to demonstrate a violation of the fair cross
section requirement.
32
Comparative disparity is a second measure of representational
disparity. Comparative disparity measures the percentage by which the
number of distinctive group members in the jury pool falls short of their
number in the community. The formula for calculating comparative
disparity is the absolute disparity divided by the percentage of the
distinctive group in the jury-eligible community. The comparative
disparity in Duren was 73%,
33
indicating the percentage of women in the
jury pool was 73% less than would ordinarily be expected for the female
population of Jackson County, Missouri, in 1976.
34
Comparative disparity can be a very useful measure for describing the
level of disparity when the proportion of the distinctive group in the jury-
eligible population is relatively small—less than 10%, for example—and the
level of absolute disparity would not necessarily reach the threshold
needed to establish a prima facie violation of the fair cross section
requirement. For example, if African-Americans represented 10% of a
jury-eligible community, but only 4% of the jury pool, the absolute
disparity would be 6% and the comparative disparity would be 60%. If
previous caselaw had established the requisite threshold for absolute
disparity at 10%, a defendant would not be able to demonstrate a violation
of the fair cross section requirement, even though the proportion of
African-Americans in the jury pool was almost two-thirds less than
expected, given their representation in the jury-eligible community. Like
absolute disparity, few courts have articulated the degree of
underrepresentation that reflects a constitutional violation using this
measure. Most courts that have discussed this issue cite values of 50%
(citations omitted) (“[S]ome courts have found disparities of between 10% and 16%
sufficient to establish underrepresentation.”).
32. See, e.g., United States v. Shinault, 147 F.3d 1266, 1273 (10th Cir. 1998)
(citing Rioux, 930 F. Supp. at 1570) (“Courts generally are reluctant to find that the
second element of a prima facie Sixth Amendment case has been satisfied when the
absolute disparities are less than 10%.”).
33. Thirty-nine and a half percent (39.5%) absolute disparity divided by 54%
jury-eligible population equals 73% comparative disparity.
34. See Smith, 615 N.W.2d at 9 (quoting Ramseur v. Beyer, 983 F.2d 1215,
1231–32 (3d Cir. 1992)) (explaining what the comparative disparity percentage
indicates).
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 769
comparative disparity or higher to establish a fair cross section claim.
35
C. Systematic Exclusion
The final prong of the Duren test requires the underrepresentation of
the distinctive group be the result of intentional discrimination or
systematic exclusion.
36
Systematic exclusion does not have to be
intentional, but merely an inherent result of the jury selection process.
37
In
Duren, the Supreme Court found the policy of offering automatic
exemptions to women was systematic exclusion insofar as it was inherent in
the jury selection process.
38
Most of the recent examples of systematic
exclusion discussed in caselaw are related to the automation used in the
jury selection process. In United States v. Osorio, for example, the length
of the database field for the prospective jurors’ city of residence in the
master jury list was truncated, causing the system to misread the eighth
character as the jurors’ status.
39
As a result, all the records for individuals
living in Hartford were mistakenly excluded from jury service because the
system interpreted the “d” in Hartford to mean “deceased.”
40
In addition,
the registered voters list for the city of New Britain, Connecticut, was
inadvertently excluded during the compilation of the master jury list.
41
Between the computer software error and the omission of the New Britain
voter registration list from the master jury wheel, no juror qualification
questionnaires were sent to residents of either locality from 1990, when the
court began using the newly compiled master jury wheel, through at least
1992.
42
At that time, the largest single concentration of both blacks and
Hispanics in the state resided in these cities.
43
35. See, e.g., Shinault, 147 F.3d at 1273 (“The comparative disparities are
larger: 48%, 50%, and almost 60%. While these numbers may be more indicative of a
Sixth Amendment violation . . . .”).
36. Duren v. Missouri, 439 U.S. 357, 366 (1979).
37. See id. at 366–67 (holding the unintentional exclusion of women through
the exemption system still constituted unconstitutional systematic exclusion).
38. Id.
39. United States v. Jackman, 46 F.3d 1240, 1242–43 (2d Cir. 1995) (citing
United States v. Osorio, 801 F. Supp. 966, 972–73 (D. Conn. 1992)).
40. Id.
41. Osorio, 801 F. Supp. at 972.
42. Id. at 969–71.
43. Combined, the cities of Hartford and New Britain accounted for nearly
17% of the total population of the Hartford Division of the United States District
Court, District of Connecticut. Id. at 972. More pointedly, they also accounted for
63% of the voting-age African-American population and 68% of the voting-age
Hispanic population for the Hartford Division. Id.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
770 Drake Law Review [Vol. 59
Another example of systematic exclusion resulting from an
inadvertent computer software error occurred in Kent County, Michigan,
from late 2001 through July 2002. During a routine computer upgrade, the
software was mistakenly programmed to randomly select names from the
first 125,000 records on the master jury list rather than from the entire list,
which contained more than 500,000 records.
44
The list was sorted
alphabetically by zip code, and the largest proportion of African-
Americans in Kent County resided in the sequentially higher zip codes.
45
In at least one of the cases that challenged the jury system during that time,
African-Americans comprised only 2.2% of the defendant’s jury venire,
compared to 7.3% of the adult population of the county.
46
A common pitfall for some courts involves the use of suppression files
in their jury automation systems to exclude individuals who have been
previously deemed ineligible for jury service.
47
Beginning in 2002,
individuals living in Wayne County, Michigan, who had been sent a
qualification questionnaire were listed as “active” on the master jury list, a
status that suppressed the record from being selected again and sent a
second qualification questionnaire.
48
A program to follow up on
nonresponders was abandoned because staff felt the program was not
worth the time and effort.
49
The result was that those who never responded
to the questionnaire remained in “active” status indefinitely, effectively
removing them forever from consideration for jury service. Because the
nonresponse rate was disproportionately high for predominantly African-
American neighborhoods, especially in the City of Detroit, it resulted in
substantial underrepresentation of African-Americans in the county-wide
jury pools.
50
Similar problems involving the use of suppression files have
also been reported in Santa Barbara County, California,
51
and in the D.C.
44. G. Thomas Munsterman, Jury Management Study for Kent County,
Michigan (May 6, 2003).
45. Id. The programming error was acknowledged in a number of cases. See
Michigan v. Bryant, 2004 Mich. App. LEXIS 712, at *10–11 (Mar. 16, 2004).
46. Bryant, 2004 Mich. App. LEXIS 712, at *7–8.
47. See generally Paula Hannaford-Agor, Jury News: Suppression Files:
Valuable Tools or Traps for the Unwary?, 23 C
T. MANAGER., no. 3, 2008, at 75
(discussing examples of suppression file errors).
48. P
AULA L. HANNAFORD-AGOR & G. THOMAS MUNSTERMAN, THIRD
JUDICIAL CIRCUIT OF MICHIGAN JURY SYSTEM ASSESSMENT 2–3, 14–15 (2006).
49. Id. at ii n.*.
50. Id. at 14–15.
51. Blair v. Superior Court, 14 Cal. Rptr. 3d 602 (Ct. App. 2004) (involving
suppression of nonresponders). The County voluntarily changed its jury selection
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 771
Superior Court.
52
Other systematic exclusion problems sometimes arise as a result of
courts trying to simultaneously manage the jury systems for multiple
localities.
53
For example, from the mid-1980s until July 1992, the circuit
court for Kalamazoo County, Michigan, used an allocation system to
manage the jury systems for the circuit court—the county-wide general
jurisdiction court—and three different divisions of the district court—
limited jurisdiction courts serving the cities of Kalamazoo, Portage, and the
remaining localities in the county.
54
To manage the four separate jury
systems, the jury coordinator first selected an adequate number of records
from the master jury list to satisfy the demand for jurors for each division
of the district court.
55
All records remaining on the master jury list after
the allocations to the district court divisions were reserved for use by the
circuit court jury system.
56
The demand for jurors by the Kalamazoo
division of the district court effectively removed all residents of Kalamazoo
from the circuit court jury pool.
57
The largest concentration of African-
Americans in Kalamazoo County resided in the city of Kalamazoo.
58
According to one expert’s estimation, this juror allocation system removed
an estimated 75% of the jury-eligible African-Americans in Kalamazoo
County from consideration in the county-wide jury pool.
59
process while Blair’s appeal was pending. Blair v. Superior Court, 101 P.3d 508, 508
(Cal. 2004).
52. United States v. Powell, 2008 D.C. Super. LEXIS 2, at *29 (Super. Ct. of
D.C., Crim. Div. June 17, 2008) (involving suppression of convicted felons and
individuals with pending criminal charges).
53. See People v. Hubbard, 552 N.W.2d 493, 499–500 (Mich. Ct. App. 1996).
54. Id. at 499.
55. Id.
56. Id. The circuit court in Kent County, Michigan, employed a similar juror
allocation process for the twelve municipal courts in Kent County during the same
approximate time period. See Berghuis v. Smith, 130 S. Ct. 1382, 1389–90 (2010). The
impact of this allocation system became one of the contested issues in Berghuis, the
first case directly involving the fair cross section requirement for which the United
States Supreme Court had granted certiorari since Duren in 1979. The actual impact of
the allocation system in Berghuis was much more attenuated, however, and the Court
ultimately determined the Supreme Court of Michigan was reasonable in finding the
defendant had not provided sufficient evidence the juror allocation system caused the
underrepresentation of African-Americans in the Kent County jury pool. Id. at 1394.
57. Hubbard, 552 N.W.2d at 500.
58. Id.
59. Id.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
772 Drake Law Review [Vol. 59
D. Nonsystematic Exclusion
As a practical matter, valid instances of systematic exclusion are
extremely rare.
60
In the vast majority of cases in which the alleged cause of
underrepresentation is reported or discussed at any length, courts have
ultimately concluded the underrepresentation is the result of various types
of nonsystematic exclusion—factors not inherent in the jury selection
process itself, but rather “private sector” influences beyond the control of
the court.
61
As one court explained, “Because the Sixth Amendment does
not impose an affirmative obligation on the courts to counteract [such
private sector influences as voting patterns, demographic trends, and
cultural differences], the failure to do so cannot constitute systematic
exclusion.”
62
1. Examples of Nonsystematic Exclusion
Some of the earliest examples of nonsystematic exclusion cited in
caselaw involved allegations that the source lists used to compile the
master jury list, especially voter registration lists, significantly
underrepresented minorities.
63
Typically, these opinions have focused on
two justifications for the constitutionality of voter registration or other
specified lists. The first is simply deference to the legislature. Depending
on the jurisdiction in which the case arises, either Congress or the state
legislature expressly mandates that the courts identified in the statute
employ the voter registration list or other identified lists as the source of
juror names for the master jury list. Unless those lists were created in a
manner that unconstitutionally discriminates against minorities, they
60. Or, to be more precise, valid instances of systematic exclusion that result
in observable distortions in the demographic composition of the jury pool are
extremely rare. This author personally believes the types of automation-related or
procedural errors described in these examples are actually quite common but often go
undetected because they do not affect the demographic composition of the jury pool.
61. See, e.g., United States v. Rioux, 930 F. Supp. 1558, 1578 (D. Conn. 1995)
(citations omitted) (“Discrepancies caused by private sector influences, rather than
affirmative governmental action, are not systematic . . . .”).
62. United States v. Purdy, 946 F. Supp. 1094, 1103 (D. Conn. 1996)
(alteration in original) (quoting Rioux, 930 F. Supp. at 1578).
63. See, e.g., United States v. Lewis, 10 F.3d 1086, 1089–90 (4th Cir. 1993);
United States v. Biaggi, 909 F.2d 662, 676–78 (2d Cir. 1990); United States v. Cecil, 836
F.2d 1431, 1444–56 (4th Cir. 1988); United States v. Clifford, 640 F.2d 150, 156 (8th Cir.
1981); see also H
IROSHI FUKURAI, EDGAR W. BUTLER & RICHARD KROOTH, RACE
AND THE JURY: RACIAL DISENFRANCHISEMENT AND THE SEARCH FOR JUSTICE 44–47
(1993) [hereinafter FUKURAI] (arguing for the use of multiple source lists).
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 773
presumptively pass constitutional muster in spite of the existence of any
evidence showing significant underrepresentation of minorities.
64
The second justification is that courts have no authority to compel
members of underrepresented groups to register to vote, obtain a state
driver’s license, or otherwise secure a place on the juror source list.
65
Hence, the exclusion of underrepresented groups is not inherent in the jury
selection process; rather, it reflects the self-exclusion of those individuals
from juror source lists, which does not violate the fair cross section
requirement.
66
Similar logic applies to disproportionately low minority
representation at subsequent stages of the jury selection process. Another
factor often associated with underrepresentation of minorities is the
percentage of juror qualification questionnaires and jury summonses that
are undeliverable. Local migration rates are highly correlated with
socioeconomic status, which in turn is correlated with minority status.
67
Individuals with lower socioeconomic statuses tend to change their place of
residence more frequently, making it more difficult for courts to locate
64. Cecil, 836 F.2d at 1445. The court found:
The use of [the voter registration list] as the source for jury selection in
federal courts has been expressly sanctioned by Congress in 28 U.S.C. §
1863(b)(2). In so doing Congress obviously recognized that such use would
necessarily exclude from jury service those individuals, whatever their
race, color, gender, or age, who had not registered to vote, but it
determined that this use of the voter registration list or list of voters would
meet the constitutional requirement of a ‘fair cross section’ of the
community, since no cognizable group would be systematically excluded.
Id.
65. Id.
66. See id.
67. Compare, for example, the average annual migration rate for whites—
15%—and the median per capita income—$29,818—reported by the United States
Census Bureau for 2005–2009 to that for African-Americans (20%, $17,887), American
Indians and Native Alaskans (19%, $16,716), Asians (18%, $29,679), Native Hawaiians
and Pacific Islanders (22%, $20,180), other races (19%, $14,871), two or more races
(21%, $14,694), and Hispanics (19%, $15,505). American FactFinder: 2005–2009
American Community Survey 5-Year Estimates, U.S.
CENSUS BUREAU,
http://factfinder.census.gov/servlet/DatasetTableListServlet?_ds_name=ACS_2009_5Y
R_G00_&_type=table&program=ACS&_lang=en&_ts=316460745889 (select tables
B07004A–G, B07004I & B19301A–I; then click “Next”; then click “Add”; then click
“Show Result”) (last visited Apr. 10, 2011). The correlation between migration rate
and per capita income by race is marginally significant. Pearson correlation coefficient
= -.692; p = .085.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
774 Drake Law Review [Vol. 59
them for the purpose of delivering a jury summons. Courts have no
authority to compel individuals to provide the United States Postal Service
with a forwarding address or to require the agencies that provide the
source files for the master jury list to improve their record-maintenance
procedures.
68
Failure-to-appear rates are likewise highly correlated with
socioeconomic status. In 1998, the American Judicature Society published
a study that investigated the reasons some jurors fail to respond to a jury
summons.
69
It found nonresponders had significantly less education,
perceived themselves as having less knowledge about court proceedings,
and were less likely to contact the court to request to be excused or
deferred from jury service after receiving a jury summons.
70
More tellingly,
the study also found that when socioeconomic factors were taken into
account, the impact of race and ethnicity completely disappeared as factors
related to nonresponse.
71
That is, a low-income white person was just as
likely as a low-income black person to fail to appear for jury service.
72
Because race, ethnicity, and socioeconomic status are so highly correlated,
the effect on the jury pool is that disproportionately fewer minorities serve
as jurors.
73
The single biggest predictor of nonresponse rates, however, was
the jurors’ expectations about what would happen if they failed to appear.
74
Individuals who believed nothing would happen were significantly less
likely to appear for service than those who believed they would be
punished for their failure to appear.
75
68. See United States v. Bates, 2009 U.S. Dist. LEXIS 117073, at *8–9 (E.D.
Mich. Dec. 15, 2009).
69. R
OBERT G. BOATRIGHT, IMPROVING CITIZEN RESPONSE TO JURY
SUMMONSES: A REPORT WITH RECOMMENDATIONS 68 (1998). In the study, Boatright
surveyed individuals who failed to appear to a jury summons in Maricopa County,
Arizona; Montgomery County, Pennsylvania; King County, Washington; and the
United States District Court for the Western District of Tennessee. Id. at 31–38.
70. Id. at 72–74.
71. Id. at 74. Boatright found a significant attitudinal difference regarding
jury service between blacks and whites when education, income, and jurisdiction were
controlled, but he found no difference in other respects. Id.
72. Id.
73. F
UKURAI, supra note 63, at 3–4.
74. B
OATRIGHT, supra note 69, at 68–69.
75. Id. at 72.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 775
2. Underrepresentation Due to Socioeconomic Factors Is Generally
Ruled to Be Nonsystematic Exclusion
Notwithstanding increased understanding about the factors that lead
to increased nonresponse rates, and substantial clues about the types of
efforts that courts could undertake to address nonresponse, they are still
considered forms of nonsystematic exclusion for the purpose of fair cross
section claims. In a formal assessment of the jury system for the Third
Judicial Circuit of Michigan, for example, the National Center for State
Courts (NCSC) found that disproportionately high nonresponse rates for
predominantly African-American neighborhoods in Wayne County,
Michigan, accounted for approximately five percentage points of the 13.9%
absolute disparity in African-American representation in the jury pool.
76
In a subsequent challenge to the jury system, in which the NCSC
assessment was cited as expert evidence, the court ruled the amount of
disparity in African-American representation attributable to nonresponse
could not be considered for purposes of estimating absolute or comparative
disparity in the Duren test’s second prong because the underlying cause
was the result of socioeconomic factors rather than systematic exclusion.
77
A recent case before the United States Supreme Court broached the
question about whether socioeconomic factors could ever be used to
support a fair cross section claim.
78
Ultimately, the Court declined to rule
on the question, but arguments for and against the proposition were
extensively discussed in the underlying cases.
79
In that case, the defendant,
Diapolis Smith, had been convicted of second-degree murder and
sentenced to life imprisonment in the Circuit Court of Kent County,
Michigan, in 1993.
80
During jury selection for the trial, Smith objected to
the jury venire on grounds it underrepresented African-Americans.
81
The
76. HANNAFORD-AGOR & MUNSTERMAN, supra note 48, at i–ii, 6–7, 17–22.
Other factors contributing to underrepresentation of African-Americans included the
juror source list—licensed drivers—and the impact of a suppression file to exclude
persons who had previously been sent a qualification questionnaire. Id.
77. Michigan v. Robinson, No. 06 009711-01, slip op. at 13–14 (Mich. Cir. Ct.
Nov. 12, 2007).
78. See Berghuis v. Smith, 130 S. Ct. 1382, 1387–88, 1395–96 (2010)
(discussing “siphoning” as a systematic exclusion).
79. Id. at 1395–96. The Court decided the case on the fact that fair cross
section claims like the type Smith raised were not “clearly established,” and therefore,
the Sixth Circuit Court of Appeals erred in granting Smith habeaus corpus relief. Id.
80. Id. at 1387, 1389.
81. See id. at 1387–89.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
776 Drake Law Review [Vol. 59
initial jury panel consisted of sixty to one hundred prospective jurors, of
which, at most, three were identified as African-American.
82
At the time,
7.28% of the adult population in Kent County was classified as African-
American.
83
The jury that convicted Smith consisted solely of white
jurors.
84
Smith claimed one of the factors contributing to the
underrepresentation of African-Americans was the juror-excusal policy
employed by the trial court—the court routinely granted excusal requests
for hardship due to loss of income, lack of transportation, and lack of
childcare, which disproportionately released African-Americans from jury
service.
85
At the time of Smith’s trial, the Kent County Circuit Court had a
three-week term of service and paid jurors only $15 per day.
86
On appeal, the Supreme Court of Michigan considered Smith’s
allegations of systematic exclusion based on the excusal policy and
concluded that, although socioeconomic characteristics likely contributed
to the disproportionate excusal rates for African-Americans, those
characteristics were not inherent in the circuit court’s jury selection process
and thus did not systematically exclude them from jury service.
87
The
United States Court of Appeals for the Sixth Circuit, reviewing Smith’s
habeas corpus application, took issue with the Michigan Supreme Court’s
conclusions about the disproportionate exclusion of African-Americans
due to socioeconomic factors.
88
As the Sixth Circuit stated, “[T]he Sixth
Amendment is concerned with social or economic factors when the
particular system of selecting jurors makes such factors relevant to who is
placed on the qualifying list and who is ultimately called to or excused from
service on a venire panel.”
89
The Sixth Circuit granted Smith’s application
for habeas relief and ordered the State of Michigan to either retry Smith
within 180 days of the opinion or release him from prison.
90
82. Id. at 1389.
83. Id. at 1387.
84. Id.
85. See id. at 1389–90.
86. Paula Hannaford-Agor, Jury News: The Fair Cross Section Requirement
in the Wake of Berghuis v. Smith, 25 C
T. MANAGER., no. 2, 2010, at 66, available at
http://www.ncsconline.org/D_Research/cjs/JuryNews2010Vol25Vol2.pdf.
87. People v. Smith, 615 N.W.2d 1, 12–13 (Mich. 2000), habeas corpus review
denied, Berghuis, 130 S. Ct. 1382.
88. Berghuis, 130 S. Ct. at 1391–92.
89. Smith v. Berghuis, 543 F.3d 326, 341 (6th Cir. 2008), rev’d, Berghuis, 130
S. Ct. 1382.
90. Id. at 345.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 777
These two competing arguments reveal a fundamental difference of
opinion on the appropriate way to frame the question. For the Supreme
Court of Michigan, the essential fact was that purely socioeconomic factors
resulted in disproportionately high excusal rates for African-Americans—
an unfortunate outcome to be sure, but not one that violated the Sixth
Amendment fair cross section requirement.
91
For the Sixth Circuit Court
of Appeals, the essential fact was that “the particular jury selection process
employed by Kent County made social or economic factors relevant to
whether a[] . . . juror would be excused from service; and because . . .
[those] factors disproportionately impact African Americans,” they
produced systematic exclusion under Duren.
92
The question of whether
minority underrepresentation is caused by socioeconomic factors or by the
policies and practices employed by the court in the jury underlies virtually all
cases alleging underrepresentation of minorities. As Professor Abramson
wryly noted in his expert report on a jury challenge in the United States
District Court for the District of Massachusetts, “‘Metaphorically speaking,
there has to be a statute of limitations on how long a District can lament
the undesirability of the underrepresentation of minorities in its jury pools
without feeling compelled to act with imagination to do better.’”
93
3. Ineffective Court Policies and Practices Can Lead to Systematic
Exclusion
The former viewpoint—minority underrepresentation due to
socioeconomic factors is nonsystematic exclusion—has prevailed in the vast
majority of cases in which the issue has been addressed directly.
94
But a
small handful of cases adopted the latter viewpoint, at least with respect to
factors falling outside of the court’s ability to prevent, for which reasonably
effective and cost-efficient remedies exist.
One of the earliest examples is People v. Harris, in which the
91. Smith, 615 N.W.2d at 13 (holding defendant did not prove African-
Americans were systematically excluded from the jury pool).
92. Berghuis, 543 F.3d at 342.
93. United States v. Green, 389 F. Supp. 2d 29, 40 (D. Mass. 2005) (quoting
J
EFFREY ABRAMSON, REPORT ON DEFENDANT’S CHALLENGE TO THE RACIAL
COMPOSITION OF JURY POOLS IN THE EASTERN DIVISION OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS 64–65 (2005)).
94. See United States v. Bates, 2009 U.S. Dist. LEXIS 117073, at *50 (E.D.
Mich. Dec. 15, 2009) (“The consensus among courts is that, like nonresponses,
[socioeconomic] factors are usually not inherent to the jury-selection plans. Therefore,
even if such things . . . substantially reduce the presence of minorities in jury pools, this
does not amount to systematic exclusion.”).
Hannaford-Agor 5.2 5/24/2011 7:53 PM
778 Drake Law Review [Vol. 59
Supreme Court of California ruled that exclusive reliance on the voter
registration as the sole source of names for the master jury list led to a jury
pool that was not an accurate representation of the community.
95
Technological advances in the 1960s and 1970s made it possible for courts
to merge multiple source lists to create a more inclusive and representative
master jury list; hence, the proposition that low voter registration rates by
African-Americans and Hispanics lead to underrepresentation in the jury
pool was no longer justifiable.
96
The California Supreme Court explicitly
warned against underrepresentation “‘stemming from negligence or
inertia’” in the jury selection process, citing cases that recognize “‘official
compilers of jury lists may drift into discrimination by not taking
affirmative action to prevent it.’”
97
More recently, the United States District Court for the District of
Massachusetts ruled that failure to take reasonable steps to address
undeliverable and failure-to-appear rates for jurors living in zip codes
comprised predominately of minorities violated the federal Jury Selection
and Service Act.
98
The court proposed remailing undelivered summonses
to different addresses in the same zip code as a remedy.
99
Perhaps more telling than the cases discussed, however, is the fact
trial courts across the country have increasingly implemented jury system
procedures designed specifically to address and mitigate these types of
nonsystematic exclusion.
100
They do so both because they perceive these
95. People v. Harris, 679 P.2d 433, 446 (Cal. 1984) (quoting People v.
Superior Court, 113 Cal. Rptr. 732, 736 (Ct. App. 1974)).
96. Hannaford-Agor, supra note 86, at 69. Harris also noted that 29 of 46
California counties were already using multiple source lists to compile the master jury
list. Id. at 437.
97. Harris, 679 P.2d at 446 (quoting People v. Superior Court, 113 Cal. Rptr.
732, 736 (Ct. App. 1974)).
98. United States v. Green, 389 F. Supp. 2d 29, 38 (D. Mass. 2005).
99. Id. at 75. The United States Court of Appeals for the First Circuit
subsequently overturned the order on grounds the remedy unlawfully supplemented
the jury plan for the Eastern District of Massachusetts. In re United States, 426 F.3d 1,
9 (1st Cir. 2005). In 2006, the United States District Court for the District of
Massachusetts amended its jury plan to respond to an undeliverable summons by
sending an additional summons to the same zip code. D
IST. OF MASS., U.S. DIST.
COURT, PUBLIC NOTICE REGARDING MODIFICATIONS TO THE JURY PLAN OF THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS: PLAN FOR
RANDOM SELECTION OF JURORS § 7 (2006), available at http://www.mad.uscourts.gov
/general/pdf/a2006/JuryPlanandNotes.pdf.
100. Stephanie Domitrovich, Jury Source Lists and the Community’s Need to
Achieve Racial Balance on the Jury, 33 D
UQ. L. REV. 39, 97–99 (detailing efforts by
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 779
efforts to be morally imperative, if not constitutionally so, and because
contemporary principles of effective jury system management now
recognize these types of efforts as standard practices that should be
observed by all responsibly managed trial courts.
101
III.
PRACTICAL REMEDIES FOR NONSYSTEMATIC EXCLUSION
A.
Using Multiple Source Lists to Create a More Inclusive and
Representative Master List
Courts have no control over whether an individual chooses to register
to vote, but as the Supreme Court of California recognized, courts do have
control over which source lists to use in compiling the master jury list.
102
Technology permitting courts to merge two or more source lists and
identify and remove duplicate records has existed for many years.
103
This
allows courts to create more inclusive and representative master jury lists
than would be possible using any single list. As recently as 2008, only 71%
of the voting-aged citizens in the United States were registered to vote.
104
Had the courts in this country continued to rely exclusively on voter
registration lists for the sole source of juror names, they would have fallen
far short of the 85% inclusiveness suggested by the NCSC.
105
They would
trial courts to craft jurisdiction-specific solutions).
101. See, e.g., Green, 389 F. Supp. 2d at 37–38 (“The Constitution provides a
floor, not a ceiling, to the Court’s obligation to provide representative juries.”); C
OMM.
ON JURY STANDARDS, AM. BAR ASS’N, STANDARDS RELATING TO JUROR USE AND
MANAGEMENT 13–17 (1993) [hereinafter ABA STANDARDS] (detailing types of lists
that may be used when creating jury pools and suggested steps for implementation).
102. People v. Wheeler, 583 P.2d 748, 758 (Cal. 1978).
103. G.
THOMAS MUNSTERMAN, JURY SYSTEM MANAGEMENT 10–11 (1996).
104. S
ARAH CRISSEY & THOM FILE, U.S. CENSUS BUREAU, VOTING AND
REGISTRATION IN THE ELECTION OF NOVEMBER 2008 1 (2010) [hereinafter U.S.
CENSUS BUREAU], available at http://www.census.gov/prod/2010pubs/p20-562.pdf.
105. See M
UNSTERMAN, supra note 103, at 4–5 (explaining the difficulties in
exclusively using voter lists to meet jury selection goals and defining inclusiveness as
“the completeness of the list or combined lists”); see also B
UREAU OF JUSTICE
ASSISTANCE, TRIAL COURT PERFORMANCE STANDARDS AND MEASUREMENT
S
YSTEM IMPLEMENTATION MANUAL, Measure 3.2.1, at 111 (1997) [hereinafter BJA
M
ANUAL], available at http://www.ncjrs.gov/txtfiles/161567.txt (“A standard of 85
percent inclusiveness has been suggested for any list . . . .” (citing N
AT’L CTR. FOR
STATE COURTS, METHODOLOGY MANUAL FOR JURY SYSTEMS, NCSC Publication CJS-
004 (1981))).
The ABA’s Principles for Juries and Jury Trials does not specify a
numerical standard for inclusiveness but recommends “the jury source list and the
assembled jury pool should be representative and inclusive of the eligible
population in the jurisdiction.” A
M. JURY PROJECT, AM. BAR ASS’N, PRINCIPLES
Hannaford-Agor 5.2 5/24/2011 7:53 PM
780 Drake Law Review [Vol. 59
have also fallen far short of the goal of representativeness, as racial and
ethnic minorities are still significantly less likely to register to vote than
whites, in spite of several decades of voter registration efforts.
106
The
American Bar Association has formally endorsed the use of multiple
source lists to create a master jury list.
107
As the commentary to Principle
10(A) of Principles for Juries and Jury Trials explains, “By striving for
inclusiveness[,] we generally advance representativeness. . . . [and]
distribute the experience and educational value of jury service across the
greatest proportion of the population.”
108
The use of multiple source lists
to improve the demographic representation of the master jury list is
perhaps the most significant step courts have undertaken since they
abandoned the key-man system in favor of random selection from broad-
based lists.
109
Today, the vast majority of state courts and a sizeable number of
federal courts have adopted the use of multiple lists as the starting point for
a defensible jury system. Forty-three states and the District of Columbia
permit the use of two or more source lists to compile master jury lists,
of
which thirty-one mandate the use of at least two lists and eleven mandate
the use of three or more lists—typically, registered voter, licensed driver,
and state income or property tax lists.
110
Connecticut, New York, and the
FOR JURIES AND JURY TRIALS, Principle 10(A)(2), at 11 (2005) [hereinafter ABA
PRINCIPLES], available at http://www.americanbar.org/content/dam/aba/migrated/
juryprojectstandards/principles.authcheckdam.pdf.
106. See U.S. C
ENSUS BUREAU, supra note 104, at 2–5. The United States
Census Bureau reports that 73.5% of non-Hispanic white citizens are registered to vote
compared to 69.7% of blacks, 55.3% of Asians, and 59.4% of Hispanics. Id. at 4, tbl. 2.
107. ABA
PRINCIPLES, supra note 105, Principle 10(A)(1), at 10 (“The names
of potential jurors should be drawn from a jury source list compiled from two or more
regularly maintained source lists of persons residing in the jurisdiction.”). Principle
10(A)(1) was based on the earlier Standard 2(a). A
M. BAR ASS’N, FINAL
COMMENTARY ON PRINCIPLES FOR JURIES AND JURY TRIALS, Principle 10 cmt., at 55
(2005) [hereinafter ABA
COMMENTARY], available at http://www.americanbar.org
/content/dam/aba/migrated/2011_build/american_jury/final_commentary_july_1205.aut
hcheckdam.pdf.
108. ABA
COMMENTARY, supra note 107, Principle 10(A) cmt., at 56.
109. See generally J
EFFREY ABRAMSON, WE, THE JURY: THE JURY SYSTEM
AND THE IDEAL OF DEMOCRACY 99–131 (1994) (providing a historical overview of the
jury summoning and qualification process in the twentieth century).
110. A
LA. R. JUD. ADMIN. 40 (LexisNexis 2005 & Supp. 2010); ALASKA STAT.
§ 09.20.050 (2010);
ARIZ. REV. STAT. ANN. § 21-301(B) (Supp. 2010); CAL. CIV. PRO.
CODE § 197(a)–(b) (West 2006); COLO. REV. STAT. § 13-71-107(1) (2010); CONN. GEN.
STAT. § 51-222a(a)–(c) (2005); D.C. CODE § 11-1905 (LexisNexis 2010); GA. CODE
ANN. § 15-12-40 (West 2003 & Supp. 2010); HAW. REV. STAT. § 612-11(a) (1993 &
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 781
District of Columbia use those three lists plus a list of persons receiving
unemployment compensation, and New York and the District of Columbia
also add persons receiving public welfare benefits.
111
Only seven states
restrict the master jury list to a single source list: Arkansas, Mississippi, and
Rhode Island use the list of registered voters;
112
Florida, Michigan, and
Oklahoma use the list of licensed drivers and state identification card
holders;
113
and Massachusetts uses the annual census conducted by each
locality.
114
At the federal level, thirty-three of the ninety-four district
courts also use supplemental lists, usually combining the lists of registered
voters and licensed drivers.
115
Supp. 2007); IDAHO CODE ANN. § 2-207 (2010); 705 ILL. COMP. STAT. 310/2 (2007); IND.
CODE § 33-28-5-13 (2004 & Supp. 2010); IOWA CODE § 607A.22 (2009); KAN. STAT.
ANN. § 43-162 (2000); KY. REV. STAT. ANN. § 29A.040(1)–(3) (LexisNexis 1998 &
Supp. 2010); L
A. CODE CRIM. PROC. ANN. art. 408.1 (2003); ME. REV. STAT. ANN. tit.
14, § 1252-A(1) (2003); M
D. CODE ANN., CTS. & JUD. PROC. § 8-206(b) (LexisNexis
2006); M
O. ANN. STAT. § 494.410(2) (West 1996 & Supp. 2011); MONT. CODE ANN. §§
3-15-402, 61-5-127 (2009); N
EB. REV. STAT. ANN. § 25-1628 (LexisNexis 2004 & Supp.
2010); N
EV. REV. STAT. §§ 6.045, 482.171, 483.225 (2009); N.H. REV. STAT. ANN. § 500-
A:1 (LexisNexis 2009); N.J.
STAT. ANN. § 2B:20-2 (West 1994 & Supp. 2010); N.M.
STAT. ANN. § 38-5-3 (1998); N.Y. JUD. LAW § 506 (McKinney 2003); N.C. GEN. STAT. §
9-2 (2009);
N.D. CENT. CODE § 27-09.1-05 (2006); OHIO REV. CODE ANN. § 2313.08
(LexisNexis 2010); O
R. REV. STAT. ANN. § 10.215 (West 2003 & Supp. 2010); 42 PA.
CONS. STAT. ANN. § 4521 (West 2004 & Supp. 2010); S.C. CODE ANN. § 14-7-130 (Supp.
2010);
S.D. CODIFIED LAWS § 16-13-4.1 (2004); TENN. CODE ANN. § 22-5-302 (2009);
T
EX. GOV’T CODE ANN. § 62.001 (West 2005); UTAH CODE ANN. § 4-404 (LexisNexis
2002); V
T. STAT. ANN. tit. 4, § 953 (2005 & Supp. 2010); VA. CODE ANN. § 8.01-345
(2007); W
ASH. REV. CODE ANN. § 2.36.055 (West 2004 & Supp. 2010); W. VA. CODE
A
NN. § 52-1-5 (LexisNexis 2009); WIS. STAT. ANN. § 756.04 (West 2001); WYO. STAT.
ANN. § 1-11-106 (2009); PETIT JURY PLAN OF THE SUPER. CT. OF THE STATE OF DEL. §
4, at 1 (2002), available at http://courts.delaware.gov/Superior/pdf/petitjury_plan.pdf;
M
INN. R. PRAC. 806 (West 2006 & Supp. 2011).
111. C
ONN. GEN. STAT. § 51-222a(a)–(c) (2005); D.C. CODE § 11-1905
(LexisNexis 2010); N.Y.
JUD. CODE § 506 (McKinney 2003).
112. A
RK. CODE ANN. § 16-32-103 (2006); MISS. CODE ANN. § 13-5-8 (West
2010);
R.I. GEN. LAWS § 9-9-14.1 (1997).
113. F
LA. STAT. ANN § 40.011 (West 2004); MICH. COMP. LAWS ANN. §§
600.1304, .1310(1) (West 1996 & Supp. 2010); OKLA. STAT. tit. 38, § 18 (2010).
114. M
ASS. GEN. LAWS ANN. ch. 234, § 4 (West 2000).
115. See E-mail from David Williams, Attorney Advisor, U.S. Admin. Office
for the U.S. Courts, to Andrew Stengel, Director, Nat’l Election Advocacy, Brennan
Ctr. for Justice (Mar. 6, 2008, 12:00 EST) (on file with author) (noting the list is only
accurate to the knowledge of David Williams at that time).
Hannaford-Agor 5.2 5/24/2011 7:53 PM
782 Drake Law Review [Vol. 59
B. Increasing the Renewal Frequency of the Master List to Improve
Accuracy
Creating a representative and inclusive master jury list is not the end
of the task, however. List accuracy, with respect to the address records, is a
third key objective of an optimal master jury list. It should go without
saying that even a perfectly representative and inclusive master jury list is
useless if the prospective jurors cannot be located to receive a jury
summons. Nationally, an average of 12% of jury summonses are returned
by the United States Postal Service marked “undeliverable,” which is the
single biggest factor contributing to decreased jury yields.
116
Some
undeliverable summonses are due to inaccurate addresses, but the vast
majority are simply out-of-date because the person has moved to a new
residence.
117
Nationally, an estimated 12% of the nation’s population
moved to a new address each year.
118
Thus, even if a court could begin the
year with a completely accurate master jury list, by the end of the year, one
out of every eight records would be outdated. Frequent renewal of the
master jury list is an essential task in contemporary jury system
management. The ABA’s Principles for Juries and Jury Trials
recommended the lists be updated at least annually.
119
More tellingly, of
the thirty-nine states that specify the maximum life of a master jury list,
twenty-nine states—74%—mandate that courts renew the master jury list
at least annually.
120
As an interim measure between master jury list
116. GREGORY E. MIZE, PAULA HANAFORD-AGOR & NICOLE L. WATERS,
THE STATE-OF-THE-STATES SURVEY OF JURY IMPROVEMENT EFFORTS: A
COMPENDIUM REPORT 21–22 (2007) [hereinafter MIZE] (averaging the national
averages for one-step and two-step courts).
117. See id.
118. See U.S.
CENSUS BUREAU, TABLE B07003, ACS 2005-2009, Geographic
Mobility in the past Year by Sex for Current Residence in the United States. The
migration rates in the early 1960s were not appreciably different than contemporary
migration rates. U.S.
CENSUS BUREAU, ANNUAL GEOGRAPHICAL MOBILITY RATES,
BY TYPE OF MOVEMENT: 1947–2009 (2010), available at http://www.census.gov
/population/socdemo/migration/tab-a-1.pdf (showing the percentage of people that
have moved every year from 1947 to 2009). The most plausible justification for
permitting courts to employ the same master jury list for up to four years was the time
and labor involved in compiling the list at that time.
119. ABA
PRINCIPLES, supra note 105, Principle 10(A)(1), at 10.
120. A
LASKA STAT. § 09.20.050 (2010); ARK. CODE ANN. § 16-32-103 (2006);
CAL. CIV. PROC. CODE §§ 197–98 (West 2006); COLO. REV. STAT. § 13-71-107 (2010);
CONN. GEN. STAT. § 51-222(a) (2005 & Supp. 2010); FLA. STAT. ANN. § 40.011 (West
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 783
renewals, courts may update their address records using the Postal
Service’s National Change of Address (NCOA) database
121
to improve jury
yields and minimize wasted printing and postage expenses associated with
undeliverable mail.
122
“In almost every instance, the savings in printing and
postage costs greatly exceed the cost of the NCOA update.”
123
Even if it
were not in the interest of courts to use this service to ensure the delivery
of jury summons to their more mobile—and disproportionately minority—
citizens in the community, it still would be more cost-effective in terms of
jury operations.
124
C. Improving Jury Summons Response Through Effective Enforcement
Of course, once the jury summons or qualification questionnaire has
been delivered to the prospective juror, it is incumbent on that individual
to either appear for jury service on the date summoned or provide a valid
2004); HAW. REV. STAT. § 612-11 (1993 & Supp. 2007); 705 ILL. COMP. STAT. 305/1
(2007); KY. REV. STAT. ANN. § 29A.040 (LexisNexis 1998 & Supp. 2010); LA. CODE
CRIM. PROC. ANN. art. 408.1 (2003); MASS. GEN. LAWS ch. 234A, §§ 15–16 (2000);
M
ICH. COMP. LAWS ANN. § 600.1310 (West 1996 & Supp. 2010); MISS. CODE ANN. § 13-
5-8
(West 2010); NEB. REV. STAT. ANN. § 25-1628 (LexisNexis 2004 & Supp. 2010); N.H.
REV. STAT. ANN. § 500-A:2 (LexisNexis 2009); N.J. STAT. ANN. § 2B:20-2(b) (West 1994
& Supp. 2010);
N.M. STAT. ANN. § 38-5-3 (1998); OHIO REV. CODE ANN. § 2313.06
(LexisNexis 2010); OKLA. STAT. tit. 38, § 18 (2010); OR. REV. STAT. ANN. § 10.215
(West 2003 & Supp. 2010); 42 PA. CONS. STAT. ANN. § 4521 (West 2004 & Supp. 2010);
S.C. CODE ANN. § 14-7-130 (Supp. 2010); S.D. CODIFIED LAWS § 16-13-1 (2004); TEX.
GOV’T CODE ANN. § 62.001(c) (West 2005); UTAH CODE ANN. § 78B-1-106 (LexisNexis
2002);
VA. CODE ANN. § 8.01-345 (2007 & Supp. 2010); WASH. REV. CODE ANN. §
2.36.055 (West 2004 & Supp. 2010); WIS. STAT. ANN. § 756.04(3)–(5) (West 2001); WYO.
STAT. ANN. § 1-11-106 (2009).
121. See NCOALink Systems, U.S.
POSTAL SERV., http://www.usps.com/ncsc
/addressservices/moveupdate/changeaddress.htm (last visited Apr. 25, 2011). The
Postal Service maintains an NCOA database to forward mail after people move to a
new address. The Postal Service also licenses private vendors to access the NCOA
database to provide updated address records for individuals, families, and businesses
that have moved—a service used extensively by commercial mail customers to
minimize undeliverable rates. See id.
122. Paula Hannaford-Agor, Jury News: “Neither Snow, nor Rain, not Heat,
nor Gloom of Night Stays These Couriers from the Swift Completion of Their
Appointed Rounds,” 25 C
T. MANAGEMENT., no. 3, 2010, at 65, 66, available at
http://www.ncsconline.org/D_Research/cjs/Jury%20News%2025-3.pdf (“Anecdotal
reports from commercial jury vendors suggest that NCOA address verification returns
10% to 15% of records” from the master jury list with an updated or corrected
address.).
123. Id. at 66–67.
124. See id.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
784 Drake Law Review [Vol. 59
reason he or she should be excused from service. Unfortunately, 6% of
individuals summoned for jury service by two-step courts and 9%
summoned for jury service by one-step courts do neither; they simply fail to
respond to the summons or fail to appear for jury service altogether.
125
Traditionally, courts have characterized nonresponse and failure-to-appear
(FTA) rates as factors beyond their control—at least for purposes of fair
cross section challenges.
126
That assertion, however, is hard to reconcile
with the fact that a jury summons is a court order that the court has
inherent authority to enforce. Imagine, for example, a court claiming it
lacked authority to enforce a child support order, domestic violence
protection order, or civil judgment. All states have statutory or
administrative provisions detailing the sanctions—both civil and criminal—
for failing to respond to a valid jury summons.
127
Despite this, the reality is
some courts simply do not find it worth the time and trouble to enforce
jury summonses and no aggrieved party—a parent, domestic violence
victim, or judgment creditor, for example—exists who can insist that they
do so.
128
Nevertheless, the enforcement of jury summonses can be highly
effective in ensuring a representative jury pool—a phenomenon
documented by numerous studies conducted in state and local courts.
129
A
125. MIZE, supra note 116, at 22.
126. See, e.g., People v. Currie, 104 Cal. Rptr. 2d 430, 437–39 (Ct. App. 2001)
(“[T]he disparity in representation is attributable to the disproportionately high rate of
failure to appear by those summoned for jury service . . . . The adoption of . . .
measures, even if constitutionally permissible, would appear to be unavailing as a
practical matter. . . .”).
127. See, e.g., C
AL. CIV. PRO. CODE § 209 (West 2006 & Supp. 2010) (“Any
prospective trial juror who has been summoned for service, and who fails to attend as
directed or to respond to the court or jury commissioner and to be excused from
attendance, may be attached and compelled to attend. Following an order to show
cause hearing, the court may find the prospective juror in contempt of court,
punishable by fine, incarceration, or both, as otherwise provided by law.”); I
OWA CODE
§ 607A.36 (2009) (“If a person fails to appear when notified to report or at a regularly
scheduled meeting, without providing a sufficient cause, the court may issue an order
requiring the person to appear and show cause why the person should not be punished
for contempt, and unless the person provides a sufficient cause for the failure, the
person may be punished for contempt.”).
128. See, e.g., C
AL. CIV. PRO. CODE § 209 (“Following an order to show cause
hearing, the court may find the prospective juror in contempt of court . . . .” (emphasis
added)); I
OWA CODE § 607A.36 (“If a person fails to appear . . . the person may be
punished for contempt.” (emphasis added)).
129. Summons enforcement is also endorsed by the ABA. See ABA
PRINCIPLES, supra note 105, Principle 10(D)(2), at 12 (“Courts should adopt specific
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 785
1997 pilot program in Eau Claire, Wisconsin, for example, found
increasingly aggressive steps to follow-up on nonresponders reduced the
nonresponse rate from 11% on the first mailing to 5% after the second
mailing, and to less than 1% after issuing Order to Show Cause notices and
capias warrants.
130
The Los Angeles County Superior Court had equally
impressive results from its Summons Sanction Program. The failure-to-
appear rate for jury summonses on the first mailing was 41%, but follow-up
efforts reduced the final nonresponse rate to 2.7%.
131
As part of a national
study of jury operations, the NCSC obtained detailed information from
more than 1,400 state courts about their jury operations from 2004 through
2006.
132
It found that 80% of state courts conducted some form of follow-
up on nonresponders and FTA jurors.
133
More than half of those courts
reported sending a second summons or second notice.
134
Courts that did so
reported nonresponse and FTA rates 24% to 46% less than courts that
reported no follow-up.
135
All of these studies provide concrete support for
the American Judicature Society’s findings concerning nonresponse. When
the court takes steps to enforce its jury summons, it changes public
perceptions about the likelihood of consequences for failure to appear.
D. Altering Length of Service and Compensation of Jurors to Minimize
Excusal Rates and Increase the Ability to Serve
Of course, not all jurors who respond to a jury summons ultimately
serve. Some individuals do not meet the minimum statutory requirements
for jury service—United States citizenship, residency in the jurisdiction,
aged eighteen or older, English fluency, and not subject to a legal disability,
uniform guidelines for enforcing a summons for jury service and for monitoring failures
to respond to a summons. Courts should utilize appropriate sanctions in the cases of
persons who fail to respond to a jury summons.”).
130. Eau Claire County, WI Juror Qualification Questionnaire Enforcement
Program (March–July 1997) (on file with author).
131. Los Angeles County, CA 2003 Summons Sanction Program (on file with
author).
132. M
IZE, supra note 116, at 2–3.
133. See id. at 24.
134. Id. (showing 52.0% of one-step courts and 51.9% of two-step courts send
a second summons).
135. Id. at 24–25. Order to Show Cause proceedings and other more
aggressive enforcement measures are considerably more time- and labor-intensive than
second summons programs, which likely explains why courts are less likely to employ
them. Due to their relative infrequency, these types of efforts had less effect on
nonresponse and FTA rates overall. Id.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
786 Drake Law Review [Vol. 59
such as a felony conviction or mental incompetence.
136
Some of these
qualifications can have a substantial impact on the demographic
composition of the jury pool as compared to the total population. The
baseline for assessing demographic representation in the jury pool,
however, is the jury-eligible population rather than the total population.
137
Thus, the impact of qualification criteria has already been considered for
the purpose of fair cross section analysis. Although the Court in Duren
made it clear it would accord substantial deference to states in defining
qualification and exemption policies, the deference was not unlimited.
138
If
those policies systematically excluded distinctive groups from the jury pool,
the state would have to show a compelling reason for the exclusion.
139
Qualification criteria define who is eligible for jury service in the
jurisdiction.
140
Exemption criteria, in contrast, are statutory provisions that
grant certain categories of individuals the right to opt out of jury service, if
desired.
141
Common exemption criteria include previous jury service,
advanced age, occupational status—political officeholders, judicial officers,
practicing lawyers, public safety officials, and healthcare professionals are
frequent categories—and status as the sole caregiver for young children or
incapacitated adults.
142
Nationally, an estimated 6% of summoned jurors
are exempt from jury service.
143
Excusal provisions grant the trial court
discretion to excuse prospective jurors, upon request, for financial or
136. See, e.g., 28 U.S.C. § 1865(b) (2006).
137. See United States v. Artero, 121 F.3d 1256, 1261 (9th Cir. 1997) (citing
United States v. Cannady, 54 F.3d 544, 548 (9th Cir. 1995)) (requiring defendant to use
jury-eligible statistical evidence of Hispanics to allege underrepresentation of
Hispanics on jury venire).
138. Duren v. Missouri, 439 U.S. 357, 367 (1979) (citing Taylor v. Louisiana,
419 U.S. 522, 538 (1975)).
139. Id. at 368 (citing Taylor, 419 U.S. at 533–35).
140. See, e.g., I
OWA CODE § 607A.4 (2009); N.J. STAT. ANN. § 2B:20-1 (West
1994 & Supp. 2010).
141. M
UNSTERMAN, supra note 103, at 43–50 (discussing the ABA standards
for exemption, excusal, and postponement).
142. Id. at 48.
143. M
IZE, supra note 116, at 22 (finding 7.3% of summoned jurors in one-step
courts and 5.1% of summoned jurors in two-step courts are exempted). Previous jury
service is the most common category of exemption identified in state jury statutes
(forty-seven states), followed by advanced age (twenty-seven states), political office
holders (sixteen states), law enforcement officials (twelve states), judicial officers (nine
states), healthcare professionals (seven states), sole caregivers (seven states), licensed
attorneys (six states), and active military (five states). Id. at 15.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 787
medical hardship or extreme inconvenience.
144
Persons who are
disqualified are not included in the jury-eligible population. Persons who
are qualified, but exempt or excused from jury service, are included. Thus,
distortions in the demographic composition of the jury pool due to
exemptions and excusals would be subject to review in fair cross section
challenges.
Exemption classifications collectively have little relationship to either
socioeconomic or minority status,
145
so the impact of exemptions is rarely
cited in fair cross section cases. However, excusing jurors due to hardship,
especially for financial reasons, can dramatically affect the demographic
composition of the jury pool. There are, however, steps courts can take to
minimize excusal rates and facilitate the ability of jurors to serve,
particularly with respect to the length of the term of service and the
amount of compensation provided to offset out-of-pocket expenses. The
ABA’s Principles for Juries and Jury Trials addresses both of these.
146
Principle 2(C) specifies “the time required of persons called for jury service
should be the shortest consistent with the needs of justice”—ideally no
more than one day or one trial.
147
Principle 2(F)(1) specifies jurors “should
receive a reasonable fee that will, at a minimum, defray routine expenses
such as travel, parking, meals and child-care.”
148
“Courts should be
encouraged to increase the amount of the fee for persons serving on
lengthy trials.”
149
The NCSC’s State-of-the-States Survey of Jury
Improvement Efforts found both of these measures had a substantial
impact on court excusal policies.
150
Courts employing a one-day or one-
trial term of service, for example, had an average excusal rate of 6%, while
the excusal rate in courts with longer terms of service was 8.9%.
151
Similarly, courts with high juror compensation policies had an average
excusal rate of 6.6%, while courts with lower compensation policies
averaged 8.9%.
152
Implementing optimal policies simultaneously resulted
144. MUNSTERMAN, supra note 103, at 48.
145. See supra note 143 and accompanying text.
146. ABA
PRINCIPLES, supra note 105, at 4, 5.
147. Id. at 4.
148. Id. at 5.
149. Id.
150. See M
IZE, supra note 116, at 23–24.
151. Id.
152. Id. Higher compensation rates were defined as more than the average
juror fee of $22 per day for flat-fee courts and $32 per day for graduated-fee courts,
and lower compensation rates were defined as less than the average juror fee. Id.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
788 Drake Law Review [Vol. 59
in excusal rates that were less than half of those employing less effective
policies, 4.1% and 9.3%, respectively.
153
IV.
A NEGLIGENCE THEORY OF JURY SYSTEM MANAGEMENT
As discussed in the previous section, trial courts have substantial
ability to minimize the impact of nonsystematic exclusion through routine
jury system management. They can update the master jury lists at least
annually and employ NCOA updates to reduce the impact of undeliverable
summonses. They can enforce the jury summons through effective follow-
up programs to reduce the impact of nonresponse rates. In addition, they
can minimize the term of service and increase juror compensation to
facilitate the ability of jurors to serve if summoned. These efforts not only
help secure a jury pool that reflects a fair cross section of the community,
but they also improve the efficiency of jury operations through increased
jury yield and enhanced public perceptions about the jury system.
Well-respected national organizations such as the ABA and the
NCSC endorse these efforts as basic practices that all courts should
employ.
154
Commercial jury automation software long ago developed the
capability to support these functions.
155
As a practical matter, the vast
majority of courts already routinely employ some or all of these
practices.
156
In essence, courts have developed functional standards over
time to define the minimum requirements for effective jury operations in
much the same way that other organizations, industries, and government
agencies have developed standards to protect the safety and well-being of
consumers, employees, and others affected by their respective operations.
It is long overdue that fair cross section jurisprudence acknowledge the
existence of these standards by holding courts accountable when their
failure to operate the jury system in a reasonably effective manner results
in substantial underrepresentation of distinctive groups in the jury pool.
Centuries of caselaw provide exhaustive commentary on the elements
of negligence at common law. It is not necessary to recount it in detail
153. Id. at 24.
154. See ABA
PRINCIPLES, supra note 105, at 10–17.
155. See Jury+ Next Generation, Jury Systems, Incorporated,
http://www.jurysystems.com/products_next_gen.html (last visited May 3, 2011); Agile
Jury, ACS, A Xerox Company, http://www.acs-inc.com/ov_agilejury.aspx (last visited
May 3, 2011); Courthouse Technologies, http://www.courthouse-technologies.com
/Home.asp (last visited May 3, 2011); Judicial Systems, Incorporated,
http://www.judicialsystems.com/ (last visited May 3, 2011).
156. M
IZE, supra note 116, at 9–10.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 789
here, but it is helpful to briefly list the four elements that must be proven
for a plaintiff or claimant to prevail in a negligence action: (1) the
defendant had a duty to comport himself or herself in a way that protects
others from foreseeable harm, (2) the defendant breached that duty of
care, (3) the breach of duty caused the plaintiff or claimant’s injury, and (4)
the plaintiff or claimant’s loss can be compensated.
157
In some situations,
the minimum standard of care is defined by statute or regulation such that
failure to comply is per se negligence.
158
At common law, the duty of care
was that observed by the hypothetical “reasonably prudent person,” which
traditionally was determined by a jury.
159
In contemporary jury operations,
the analogous standard of care may be found either in positive law, such as
statutes or administrative rules, and industry standards, such as those
promulgated by the ABA and the NCSC, or inferred from the routine
practices the vast majority of courts now employ.
An articulation of what this duty consists of might go like this: Courts
have a duty to operate their jury systems in a manner that secures an
adequate number of prospective jurors to empanel trial juries,
160
ensures
that the jury pool reflects a fair cross section of the community,
161
expends
court resources in a reasonably efficient manner,
162
and treats jurors with
appropriate dignity and respect.
163
The duty is owed not only to the
157. See generally PROSSER AND KEETON ON TORTS § 5:30 (Robert E. Keeton
ed., 5th ed. 1984).
158. R
ESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND
EMOTIONAL HARM § 14 (1965) (“An actor is negligent if, without excuse, the actor
violates a statute that is designed to protect against the type of accident the actor’s
conduct causes, and if the accident victim is within the class of persons the statute is
designed to protect.”).
159. See id. § 8(b) cmt. b (“When, in light of all the facts related to the actor’s
conduct, reasonable minds can differ as to whether the conduct lacks reasonable care,
it is the function of the jury to make that determination.”).
160. See generally M
UNSTERMAN, supra note 103, at 44–52 (providing detailed
instructions on calculating jury yield to estimate the number of jury summons needed
to be mailed to secure a sufficient number of qualified jurors for jury selection
purposes).
161. See Taylor v. Louisiana, 419 U.S. 522, 528 (1975) (requiring a
“representative cross section of the community”); see also BJA
MANUAL, supra note
105, Standard 3.2, at 107 (“Jury lists are representative of the jurisdiction from which
they are drawn.”).
162. See, e.g., BJA
MANUAL, supra note 105, Standard 4.2 cmt., at 173 (“Trial
courts must use available resources wisely to address multiple and conflicting
demands.”).
163. See id. Standard 5.2 cmt., at 224 (“Standard 5.2 requires a trial court to
instill in the public trust and confidence that basic court functions are conducted in
Hannaford-Agor 5.2 5/24/2011 7:53 PM
790 Drake Law Review [Vol. 59
litigants that choose trial by jury as the method of resolving their cases, but
also to the general public as both taxpayers and prospective jurors.
164
Specific practices to accomplish these goals are either mandated by the
legislature, endorsed by well-respected industry groups, or practiced
routinely by a majority of courts.
165
These include annual renewal and
adequate maintenance of a broadly inclusive, representative, and accurate
master jury list; effective follow-up programs for persons who fail to
respond to a jury summons; and juror excusal and compensation policies
that facilitate jurors’ ability to serve if summoned.
166
Courts that fail to employ these practices breach their duty to the
litigants before them and to the general public. Although courts have no
authority or inherent ability to address the types of socioeconomic factors
that often cause minority underrepresentation in the jury pool, practicing
effective jury system management has proven to greatly mitigate the
impact of these factors.
167
Ineffective jury system management, in contrast,
can result in substantial underrepresentation of distinctive groups in the
jury pool, which violates defendants’ Sixth Amendment right to an
impartial jury and citizens’ Equal Protection right to participate in the jury
system, and undermines public trust and confidence in the justice system.
Although the socioeconomic factors that contribute to minority
underrepresentation in the jury pool do not systematically exclude
distinctive groups, the failure of courts to mitigate the underrepresentation
through effective jury system practices is itself a form of systematic
exclusion.
Litigants alleging a violation of the fair cross section requirement
would still have to demonstrate that the underrepresentation was the result
of the court’s failure to practice effective jury system management.
168
This
would almost always require expert testimony concerning the precise point
of the juror summoning and qualification process in which members of
distinctive groups were excluded from the jury pool and a plausible
explanation of how the operation of the jury system resulted in their
exclusion. Mere speculation about the possible causes of
accordance with the standards in the areas of Expedition and Timeliness and Equality,
Fairness, and Integrity.”).
164. Id. Standard 4.2 cmt., at 173.
165. See supra notes 107–15 and accompanying text.
166. See supra Part III.
167. See supra notes 150–53 and accompanying text.
168. Duren v. Missouri, 439 U.S. 357, 364 (1979) (“[T]his underrepresentation
is due to systematic exclusion of the group in the jury-selection process.”).
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 791
underrepresentation will not substitute for a credible showing of evidence
supporting those allegations.
169
At common law, the remedy for an injury caused by negligence was a
monetary award sufficient to make the plaintiff whole. The harm from a
violation of a defendant’s right to a jury selected from a jury pool that
reflects a fair cross section of the community is an unfair trial, which would
seem impossible to quantify in monetary terms. This Article does not
propose violations of the fair cross section requirement become eligible for
compensation as a constitutional tort, such as § 1983.
170
Rather, it contends
the traditional remedy available under the Sixth Amendment—a new trial
in which the deficiencies of the jury system have been rectified—continues
to be the appropriate remedy.
How would the application of this proposed negligent-jury-
management theory comport with the Sixth Amendment’s historical
deference to state rulemaking, presumably including policies concerning
jury operations? Would this now make trial courts the functional
guarantors of a perfectly representative jury pool? Neither the
Constitution nor principles of common law negligence go that far. The
caveat expressed by the Supreme Court in Duren was:
States remain free to prescribe relevant qualifications for their jurors
and to provide reasonable exemptions so long as it may be fairly said
that the jury lists or panels are representative of the community.
However . . . “the right to a proper jury cannot be overcome on merely
rational grounds.” Rather, it requires that a significant state interest
be manifestly and primarily advanced by those aspects of the jury
selection process, such as exemption criteria, that result in the
disproportionate exclusion of a distinctive group.
171
169. See, e.g., Diggs v. United States, 906 A.2d 290, 298 (D.C. Cir. 2006)
(denying defendants’ Sixth Amendment claim because they failed to present evidence
African-Americans were excluded from jury panels on Mondays); Commonwealth v.
Estes, 851 A.2d 933, 936 (Pa. Super. Ct. 2004) (denying the defendant’s Sixth
Amendment claim because he merely showed underrepresentation and “offered no
evidence of a calculated discriminatory practice”).
170. 42 U.S.C. 1983 (2006). Section 1983 was enacted specifically to provide a
remedy to private citizens deprived of their constitutional rights through the
intentional or negligent acts of government agencies. Ironically, judicial officers are
generally immune from Section 1983, so the protections of the statute are unavailable
for defendants alleging a violation of their right to a jury selected from a fair cross
section of the community.
171. Duren, 439 U.S. at 367–68 (quoting Taylor v. Louisiana, 419 U.S. 522, 534,
Hannaford-Agor 5.2 5/24/2011 7:53 PM
792 Drake Law Review [Vol. 59
The Court then explained Missouri’s exemption policy permitting all
women to “opt out” of jury service to safeguard the important role by some
women in home and family life was insufficient justification for their
disproportionate exclusion on jury venires.
172
Certainly, the fundamental
qualification criteria employed by most state and federal courts would
withstand a fair cross section claim, even though some of these
qualifications often alter the demographic composition of the jury pool in
substantial ways. Citizenship and English fluency qualifications, for
example, often systematically exclude substantial numbers of Hispanics
and Asians from the jury pool.
173
United States citizenship serves as a
presumptive indication that the juror is sufficiently informed about the role
and responsibilities of jurors through primary education or acculturation to
serve competently if selected as a juror without substantial in-court
training.
174
The English fluency requirement is even more pragmatic. Without
exception in the United States, court proceedings are held in English, and
the formal trial record is recorded in English. Thus, the English fluency
requirement is simply the requirement jurors be able to understand the
trial proceedings and deliberate effectively with fellow jurors.
175
Foreign
language interpreters are often present to translate for non-English-
speaking litigants or witnesses, but the cost of providing interpreters for all
potential languages and dialects spoken by prospective jurors would likely
be prohibitively expensive.
176
538 (1975)).
172. Id. at 369–70.
173. NCSC
PRIMER, supra note 16, at 3; see United States v. Torres-
Hernandez, 447 F.3d 699, 705 n.9 (9th Cir. 2006) (noting the jury-eligible Hispanic
population).
174. Paula Hannaford-Agor & G. Thomas Munsterman, Ethical Reciprocity:
The Obligations of Citizens and Courts to Promote Participation in Jury Service, in
J
URY ETHICS: JUROR CONDUCT AND JURY DYNAMICS 21, 24–25 (John Kleinig & James
P. Levine eds., 2006).
175. See, e.g., F
REQUENTLY ASKED QUESTIONS ABOUT JUROR SERVICE IN
NEW JERSEY 4, available at http://www.judiciary.state.nj.us/juryreporting/juryfqa.pdf
(“You are required to be able to read and understand English. . . . If you speak
English at work, you will most likely qualify as a juror.”).
176. Pursuant to a provision of the New Mexico Constitution prohibiting the
disenfranchisement of persons from the right to vote and the right to serve on a jury on
the basis of inability to speak English, the New Mexico courts provide foreign language
interpreters to non-English-speaking jurors. N.M.
CONST. art. 7, § 3. It is the only state
that does so. In other states, the issue of foreign language interpreters for persons of
“limited English proficiency” (LEP) has become a topic of great concern among state
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 793
On the other hand, the proposition that substandard or negligent jury
system management is a prerogative of trial courts deserving substantial
deference is implausible, at best, if not outright laughable. At a minimum,
courts that suffer from substantial underrepresentation of distinctive
groups in the jury pool should be required to demonstrate they are making
reasonable, good faith efforts to address the causes of underrepresentation,
regardless of whether those causes are systematic or nonsystematic in
nature or even whether those efforts are wholly successful. This brings us
to the limits of common law negligence.
In the context of contemporary jury management, most courts
operate their jury systems in reasonably responsible ways. The days of
intentional discrimination against minorities in the jury pool are long gone
and instances of actual, if inadvertent, systematic exclusion are extremely
rare.
177
The fact remains, however, that many courts continue to struggle
with substantial underrepresentation of minorities in the jury pool due to
nonsystematic—mostly socioeconomic—factors. If a court has already
taken all of the reasonably effective steps to address minority
underrepresentation, what more would the Sixth Amendment require if
the proposed negligence theory were grafted onto the fair cross section
requirement? Some proposals have called for stratified sampling based on
race or geography, for example, to compensate for minority
court policymakers. In August 2009, Assistant Attorney General Thomas Perez of the
United States Department of Justice (DOJ) sent a letter to all state supreme court
chief justices and state court administrators interpreting DOJ regulations and
guidelines regarding state court obligations to provide assistance to persons with
limited English proficiency. G
REGORY E. MIZE, PROVIDING INTERPRETORS FOR
“LEP” PERSONS (2011) (on file with author) (explaining the Perez letter’s intent). The
Perez letter told courts receiving federal grants they must provide interpretive services
to all LEP litigants including relevant nonparties regardless of the solvency of a party.
Id. Thus, state courts are asked to secure and pay for interpretive services in cases
involving both the wealthy and nonwealthy, without the ability to recoup costs from
those able to pay for them. Id.
177. To be more precise, intentional discrimination in the procedures
employed to summon and qualify jurors for service is long gone. There is still
widespread belief—and substantial evidence to support that belief—that peremptory
challenges are routinely exercised with discriminatory intent. See, e.g., Albert W.
Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the
Review of Jury Verdicts, 56
U. CHI. L. REV. 153, 156 (1989) (citing Batson v. Kentucky,
476 U.S. 79 (1986));
Morris B. Hoffman, Peremptory Challenges Should Be Abolished:
A Trial Judge’s Perspective, 64 U.
CHI. L. REV. 809, 831 (1997) (citing Swain v.
Alabama, 380 U.S. 202 (1965));
Kenneth J. Melilli, Batson in Practice: What We Have
Learned About Batson and Peremptory Challenges,
71 NOTRE DAME L. REV. 447, 449
(1996) (citing Batson, 476 U.S. at 90–93).
Hannaford-Agor 5.2 5/24/2011 7:53 PM
794 Drake Law Review [Vol. 59
underrepresentation.
178
Others have urged courts to track down and
require service from all qualified nonresponding jurors or to increase juror
fees to fully compensate jurors for lost income.
179
While many of these are
creative and well-intentioned strategies to address the ongoing challenge of
minority underrepresentation, courts are not required to adopt these
solutions to avoid civil liability under common law negligence or a
constitutional violation under the Sixth Amendment.
At common law, persons have a duty to act in a way that prevents
reasonably foreseeable harm to others—not, however, a duty to prevent all
harm.
180
Nor are they required to take steps beyond that of a reasonably
prudent person to prevent harm.
181
By the same logic, courts would not be
constitutionally required to take all possible steps to address nonsystematic
exclusion of distinctive groups. Some steps might prove to be exorbitantly
expensive or only marginally effective. Other steps have simply not yet
proven effective. Either justification—extraordinary expense or unproven
effectiveness—would be sufficiently compelling; the failure to take those
steps would not violate the fair cross section requirement.
182
It is possible that future improvements in jury system management
will address minority underrepresentation as or more effectively than the
techniques described in this Article. Some noteworthy proposals are
already being tested around the country. For example, a small handful of
courts have implemented various forms of stratified sampling to address
minority underrepresentation. The Third Judicial Circuit Court of
Michigan supplements its master jury list with additional records from the
City of Detroit to compensate for its disproportionately high nonresponse
rates.
183
Since 1989, the State of Georgia has required its courts to summon
178. See Domitrovich, supra note 100, at 95 (citing G. Thomas Munsterman &
Janice T. Munsterman, The Search for Jury Representativeness, 2 J
UST. SYS. J. 59, 74
(1986)).
179. Id. at 95–96 (citations omitted).
180. See supra note 159 and accompanying text.
181. See supra note 159 and accompanying text.
182. Indeed, this may have been the unspoken basis for the Court’s original
distinction between systematic and nonsystematic exclusion. In 1968, when the federal
Jury Selection and Service Act was enacted, the voter registration list was widely
believed to be the most representative list available. S. R
EP. NO. 90-891, at 16 (1967).
Few courts had access to sophisticated automation that would merge multiple lists, and
doing so manually would be an extraordinary chore—certainly not one a court could
undertake on an annual basis.
183. H
ANNAFORD-AGOR & MUNSTERMAN, supra note 48, at 4–5.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 795
individuals for jury service in proportion to their gender, race, and age.
184
Federal district courts for the Eastern District of Massachusetts and the
District of Kansas have implemented procedures to replace undeliverable
juror qualification questionnaires and nonresponses with a randomly
selected record from the same zip code.
185
These types of remedies,
however, are highly controversial because by definition they violate an
essential principle of random selection: all persons have an equal
probability of being selected for jury service, which courts have come to
regard as a touchstone of procedural legitimacy for the jury system.
186
It
would indeed take an enormously compelling justification to overcome the
presumption that random selection is the preferred method of jury
selection. Moreover, these remedies lack the proven track record of the
remedies previously discussed.
187
No formal evaluation of the federal court
experiments has been reported to date, so their effectiveness is unknown.
188
The NCSC study of the Third Judicial Circuit Court found the
184. GA. UNIFIED APP. R. CT. II(E). The language of the rule refers
exclusively to grand jury service, but the state trial courts in Georgia uniformly employ
the same summoning and qualification procedures for both grand and petit jury
service.
185. M
ASS. GEN. LAWS ANN. ch. 234A, § 11 (West 2000); U.S. DIST. CT. R. D.
KAN. 38.1(g)(2). In theory, it is not clear such remedies would be effective in more
diverse jurisdictions in which distinctive groups are geographically better distributed.
In fact, by attempting to address minority underrepresentation directly, rather than
addressing the underlying causes of the underrepresentation, oversampling might
actually further skew the demographic composition of the jury pool due to the higher
probability a replacement jury summons or juror qualification questionnaire would be
mailed to a nonminority person.
186. The ABA’s Principles for Juries and Jury Trials recognizes such efforts as
legitimate, provided they are implemented to address underrepresentation of
distinctive groups and are formally enacted by appropriate authority by the court. See
generally ABA
PRINCIPLES, supra note 105, Principles 10–11, at 10–17 (discussing
suggested methods for achieving a representative, fair, and impartial jury). The NCSC
also recognizes the potential of such efforts but cautions they should only be
implemented if traditional methods of improving minority representation have failed
to yield satisfactory results. See generally H
ANNAFORD-AGOR & MUNSTERMAN, supra
note 48, at 25–33 (providing eight different recommendations separated into three
stages for achieving a fair cross section).
187. See supra Part III (discussing studies on particular methods of jury
selection).
188. The effectiveness of these methods of stratified selection are predicated
on a highly segregated jurisdiction in which the vast majority of distinctive group
members are concentrated within discrete geographic boundaries. The impact of these
methods would necessarily be less effective in more integrated communities in which
distinctive group members are dispersed throughout the jurisdiction.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
796 Drake Law Review [Vol. 59
supplementation of one-hundred thousand names from the City of Detroit
overcompensated for both the disproportionately low representation on
the source list and the effects of the suppression files.
189
Reports regarding
the Superior Court of Fulton County, Georgia, also suggest the approach
has not been fully successful.
190
There are also practical limits on the usefulness of extremely
aggressive enforcement programs, which become increasingly time- and
labor-intensive to administer and result in increasingly lower returns on
investment in terms of qualified jurors.
191
Like the proverbial tail wagging
the dog, at some point the court risks having jury summons enforcement
efforts eclipse the legitimate goals of effective jury system management.
192
It is certainly not practical to track down every last nonrespondent, and
increasingly Draconian enforcement efforts may be counterproductive
because they may undermine public support for the jury system.
193
Similar concerns attend extreme efforts to overcome the financial
hardship associated with jury service that prevents many individuals from
being able to serve. Although courts rarely acknowledge it explicitly, most
recognize the jury system is heavily subsidized by the in-kind contributions
of jurors, their employers, and their communities.
194
Only a small portion
of the actual costs of the jury system are incurred by the courts for
administrative expenses, juror fees, and mileage reimbursement.
195
Lost
income—or alternatively, lost wages paid by employers who compensate
189. HANNAFORD-AGOR & MUNSTERMAN, supra note 48, at 15–16.
190. Nichols’ Attorneys Say Jury Selection Flawed in Fulton County,
A
CCESSNORTHGA.COM (May 16, 2006), available at http://www.accessnorthga.com
/detail.php?n=123855&c=2.
191. Typically, the jury yield after the first follow-up notice is similar to the
jury yield for the original mailing, but respondents to subsequent follow-up efforts tend
to be disqualified at higher rates. NCSC
PRIMER, supra note 16, at 1.
192. To control costs, many courts employ Order to Show Cause hearings and
other aggressive enforcement efforts on a sporadic basis or on only a small proportion
of nonrespondents. Id. at 2–3.
193. See T
RACY L. SMEDLEY, BEYOND FAILURE TO APPEAR NOTICES: A
REEXAMINATION OF JUROR ATTITUDES IN THE CIRCUIT COURT OF JACKSON COUNTY,
MISSOURI AND AN EXAMINATION OF OTHER TECHNIQUES TO ADDRESS FAILURE TO
APPEAR PATTERNS 58 (2008), available at http://contentdm.ncsconline.org/cgi-
bin/showfile.exe?CISOROOT=/juries&CISOPTR=172.
194. See P
AULA HANNAFORD-AGOR, SAVING MONEY FOR EVERYONE: THE
CURRENT ECONOMIC CRISIS IS AN OPPORTUNITY TO GET SERIOUS ABOUT IMPROVING
JUROR UTILIZATION, in FUTURE TRENDS IN STATE COURTS 50, 52 (Carol R. Flango et
al. eds., 2009).
195. See id. at 50–52.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
2011] Expanding the Definition of Systematic Exclusion 797
employees while on jury service—averages $100 per day, and a
conservative estimate of lost productivity by employed jurors is $675 per
day.
196
These are just the easily quantifiable costs of the jury system, which
exclude nonincome compensation paid by employers and lost opportunity
costs for unemployed jurors.
197
If courts were required to fully compensate
jurors and their employers for lost income and lost productivity to enable
low-income and minority jurors to serve, the cost of jury trials would
increase from $25 to $50 per juror per day to as much as $800 to $1000 per
juror per day.
198
Such costs are often not considered by policymakers, but
would significantly burden courts’ budgets.
199
V.
CONCLUSION
For more than forty years, the overwhelming majority of fair, cross
section claims have failed either because minority underrepresentation was
not sufficient to violate constitutional norms or the underrepresentation
was caused by nonsystematic, often socioeconomic, factors.
200
In
contemporary jury operations, however, actual instances of systematic
exclusion are extremely rare.
201
Most instances of minority
underrepresentation are due to intransigent socioeconomic factors that
traditionally have been exempted from enforcement under the fair cross
section requirement for the simple reason that courts cannot preemptively
196. Id. at 52.
197. Nonincome employee compensation includes fringe benefits such as
insurance and pension contributions, unemployment compensation, and sick leave and
vacation accruals. Lost opportunity costs are not easily quantifiable in monetary terms
but generally include childcare, volunteer activities, education, recreation, and other
activities jurors would have undertaken but for their obligation to report for jury
service. Id.
198. Id.
199. Consider the potential cost of empaneling a jury for a three-day trial. If
the court summoned forty-five jurors to report for service, the cost of jury selection
alone is estimated at $36,000 to $45,000. See id. The cost for twelve empaneled trial
jurors and two alternates would add $11,200 to $14,000 per day to the cost of the trial.
See id. Now consider incurring these costs for each of the estimated 154,000 jury trials
that take place each year in the United States. M
IZE, supra note 116, at 7 (estimating
148,558 state court jury trials and 5,463 federal court jury trials took place in 2006).
The total could exceed $8.8 billion per year more than the entire federal judiciary
budget allocation in 2009 and the state judiciary budgets of all fifty states and the
District of Columbia.
200. See supra Part I.
201. See supra note 60 and accompanying text.
Hannaford-Agor 5.2 5/24/2011 7:53 PM
798 Drake Law Review [Vol. 59
solve the underlying socioeconomic conditions themselves.
202
In spite of
the lack of a constitutional mandate, forty years of good faith efforts to
improve minority representation in the jury pool have produced a number
of effective practices that greatly mitigate the impact of these
socioeconomic factors.
203
Most trial courts are now mandated to employ
these practices by their respective legislatures or have adopted them as
routine practices because they are efficient, cost-effective, and are regarded
as minimally acceptable standards for contemporary jury system
management.
204
Nevertheless, some courts have declined to adopt these
practices, which tends to exacerbate the challenge of securing a jury pool
that reflects a fair cross section of the community, on the grounds they are
not constitutionally required to do so.
205
In essence, maintaining the
distinction between systematic and nonsystematic exclusion in fair cross
section jurisprudence effectively immunizes trial courts from taking
reasonable steps to address the most common causes of minority
underrepresentation. It is long past time the fair cross section requirement
recognize ineffective jury system management that contributes to minority
underrepresentation is itself a form of systematic exclusion the Sixth
Amendment can no longer tolerate.
202. See supra Part II.D.1.
203. See supra Part III.
204. See supra Part III.
205. See supra Part II.D.2.
