"Points of View Or Opinions in This Document Are Those of the Authors

"Points of view or opinions in this document are those of the authors and do not necessarily represent the official position or policies of the National Center for State Courts or the funding agency."

WILLIAM S. HEIN 6 CO., INC. IIIIIAL

The quality of this Microfiche is equivalent to the condition of the original work. WILLIAM 5. HEIN & CO., INC. I Standakds Relating to Juror Use and Management

Tentative Draft .- . -7-. ,:July, 1982

American Bar Association Judicial Administration Division Committee on Jury Standards

-- American Bar Association Judicial Administration Division Committee on Jury Standards

Walter 3. Kane, Chairperson

Honorable Janice L. Gradwohl Honorable James A. Noe Municipal Court of Lincoln- King County Superior Court Lancaster County Seatt 1e, Washing ton Lincoln, Nebraska NATIOWL CONFERENCE OF STATE TRIAL JUDGES CONFEREhCE UF SPECIAL COURT JUDGES Honorable Norma L. Shapiro John h. ljreacen US. District Court Deputy Director' for Programs Ph i1 adel phi a, Pennsylvani a National Center for State Courts NATIONAL CONFERENCE OF FEDERAL TRIAL JUDGES hi11 i amsburg , Virgini a LAWYERS' CONFERENCE Honorable Roger G. Strand Associate Presiding Judge halter 3. Kane Maricopa County -Superior Court State Court Admini strator Phoenix, Arizona Providence, Rhode Island NATIONAL CONFERENCE OF STATE TRIAL JUDGES LAWYERS' CONFERENCE Honorable Joseph R. Weisberger Edward 8. McConnelS Supreme Court of Rhode and Executive Director Providence, Rhode IslandIs? National Center for State Courts APPELLATE JUDGES' CONFERENCE Wif 1i amsburg , Virginia LAWYERS' CONFERENCE

Representatives of Other Participating Organizations

Donald Cullen Hank P. Rodgers llistrict Administrator Executive Officer Aus t in kinneso t a Ventura County Superior Court NATIONAL ASSOCIATION FOR COURT Ventura, California ADFiINISTRATION NATIONAL ASSOCIATION OF TRIAL COURT ADHI NISTRATORS James 0. Montgomery kontgomery and Holland A1 len L. Tapley Chicago, Illinois State Court Administrator NATIONAL BAR ASSOCIATION Montgomery, abama -- A1 CONFERENCE OF STATE COURT ADMINISTRATORS Honorable Roger G. Strand Maricopa County Superior Court Phoenix , Arizona NATIONAL CONFERENCE OF METROPOLITAN COURTS

i National Center for State Courts

Jury Standards Project Staff

Linda R. Caviness, Project Director Senior Staff Associate

C. Diane Barrow Richard Van Duitend Project Secretary Senior Staff Attorney Charlotte A. Carter Christina B. Yaw Staff Attorney Staff Associate

The National Center project staff wish to express their appreciation to the Center for Jury Studies and to the Law Enforcement Assistance Administration, Jury Incentive Program ,sites for their assistance and practical suggestions during the preparation of this document. Special thanks to Susan Laniewski for her assistance in preparing the final draft . of this document. ."-

i: :

-- Uhis project was supported by Grant Number 80-PG-AX-0033, awarded by the Law Enforcement Assistance Administration, U.S. Department of Justice, under the Omnibus Control and Safe Streets Act of 1968, aS amended. The opinions, recommendations, and determinations contained herein are thcse of the Jury Standards Task Force ana the Comnittee on Jury Standards of the American Bar Association, Judicial Administration Divisior? and do not necessarily represent the official position or policies of the U.S. Department of Justice, the National Center for State - Courts or the American Bar Association.

'. ii Preface

This dOCUtTient, dealing with standards-for jury use and management in the state courts, is a tentative draft for review and approval by the judicial ana administrative organizations that have been involved in the drafting process. These standards address issues of the management and use of petit juries as opposed to those of grand juries. The formulation of this document has been a cooperative effort of many court organizations. Judges and court administrators representing various national organizations including several Conferences of the berican aar Association, Judicial Administration Division have met regularly over the past eighteen months to debate jury management issues and to develop the standards set forth here. The effort has necessarily been one of conflict and compromise. The team work and commitment of the ten participatiny-oryanitations working together to develop realistfc goals in this area of judicial administration should not only be comniendea, but also considerea a model effort. /- The National Center for State Courts was awarded a grant from the Law Enforcement Assistance Administration to coordinate the standards development effort and to provide staff support. A Jury Standards Task force was farmea to set policy for the scope and conduct of the project; to decide the content and language of the standards; to review and approve commentary to accompany the standards; and to develop a plan for their dissemination and imp1 ementati on. Organizations represented on the original lvational Center Jury Standards Task Force include: the Conference of State Court Administrators, the National Association for Trial Court Administrators, the Flational Association for Court Administration, the National Conference of State Trial Judges, the Ivational Conference of Special Court Judges, and the National Conference of Metropolitan Courts. Organizations added during the course of the task force's work incluae the National Bar Associatim, the luational Conference of Federal Trial Judges, the Lawyers' Conference and the Appel 1 ate Judges ' Conference. At the first meeting of the task force, the representatives of the JAU Conferences suggested that the impact of the standards being aeveloped would be increased if they had the endorsement of the American bar Association. To implement this suggestion, Judge Lawrence S. Margolis, JAD Chairman, appointed a special committee of the JAD Council to work in conjunction with the task force in drafting the standards with the thought that the standards, when developed, could be submitted to the JUU for csnsideration, and, if approved by it, to the ABA House of Delegates for adoption.

iii The JAD Committee on Jury Standards is composed of Judge Norma L. Shapiro (National Conference of Federal Trial Judges), Justice Joseph R. Wei sberger (Appell ate Juoges Conference) , Judge James A. Noe and Judge Roger G. Strand (National Conference of State Trial Judges), Judge Janice L. Gradwohl (National Conference of Special Court Judges), and John M. Greacen, Edward B. lvlcConnel1 , and Walter 3. Kane (Lawyer's Conference). Since its appointment in the fall of 1980, the JA3 Jury Committee has met jointly with the task force every two months and benefited from the participation of professionals from court management organizations who work every day with the jilry system and know personally the practical problems that arise. Task force members representing court management organizations incluae A1 len Tapley (Conference of State Court Administrators) , Hank T. Rodgers (National Association of Trial Court Administrators) , Donald Cul len (National Association for Court Administration) , and James D. Montgomery (National Bar Association). -7 A preliminary draft of these standards was given wide circulation among the organizations represented on the task force and JAD Jury Committee as well as by jury managers and other interested groups concerned with judicial administration. Suggestions and criticisms were solicited and given careful consideration. Many have been incorporated in this tentative draft. The JAD Committee and National Center Task Force express appreciation to a1 1 who reviewed the preliminary draft. This step in the standards development process is the review and approval of the tentative draft by the organizations participating in the development effort. With their approval and that of the Judicial Administration Division, it is anticipated that the standards will be presented to the American Bar Association, House of Delegates for adoption in January, 1983.

Wa:ter J. Kane ..

Table of Contents

IhTROUUCTION ...... 1 t$LACK LETTER STANDARDS ...... 4 STARDUDS AND CONMENTARY .. Part A: Standards Relating to Selection of Prospective Jurors Introduction ...... 14 . Standara 1: OPPORTUNITY FOR SERVICE ...... 16 Commentary ...... 16 Suggested Steps for Implementation ...... 17 Related Standards ...... 17 Footnotes ...... 18 Bibliography ...... 20 Standard 2: JURY JOURCE LIST ...... 23 \ Commentary ...... 23 Suggested Steps for Implementation ...... 27 Helatea Standards ...... 2% Footnotes ...... 2% Bibliography ...... 30 Standara 3: RANDOM SELECTION PROCEDURES ...... 36 Commentary ...... 36 Suggested Steps for Implementation ...... 38 Relatea Standards ...... 38 Footnotes ...... 39 Bibliography ...... 41 Standara 4: ELIGIBILITY FOR JURY SERVICE ...... 47 Commentary ...... 47 Suggested Steps for Implementation ...... 50 Related Standards ...... 50 Footnotes ...... 50 Bibliography ...... 0.. .e m53 Standard 5: TERM OF AND AVAILABILITY FOR SERVICE ...... 55 Conmentary ...... 55 Suggested Steps for Implementation ...... 57 Related Standards ...... 58 Footnotes ...... 58 Bibliography ...... 59 Standard 6: EXEMPTION. EXCUSE. AND DEFERRAL ...... 60 Commentary ...... 60 Suggested Steps for Implementation ...... 63 Related Standards ...... 64 Footnotes ...... 64 Bibliography ...... 66 Part B: Standards Relating to Selection of a Particular Jury Introauction ...... 67 Standard 7: VOIR DIRE ...... 68 Commentary ...... 68 Suggested Steps for Implementation ...... 71 Related Standards ...... 71 Footnotes ...... 71 Bibliography ...... 74 i Standard 8: REMOVAL FROM THE JURY PANEL FOR CAUSE ..... 80 Commentary ...... 80 Suggested Steps for Implernentatim ...... 81 Related Standards ...... 81 Footnotes ...... 81 Bibliography ...... 82 Standard 9: PEREMPTORY CHALLENGES ...... 83 Commentary...... 84 Suggested Steps for Implementation ...... 87 Relatea Standaras ...... 87 Footnotes ...... 88 Bibliography ...... 90

Part C: Standards Relating to Efficient Jury lvianagement Introduction ...... 95 Stanawd 10: ADMINISTRATIO~JOF THE JURY SYSTEM ...... 36 Commentary ...... 96 Suggested Steps for Implementation ... .. 99 . Related Standaras ...... 99 Footnotes ...... 99 Bibliography ...... 101

... vi _I_ .... ’ . ..

St,andard 11: NOTIFICATION AND SUMMONING PROCEDURES .... 103 Conlnientary ...... 103 Suggested Steps for Implementation ...... 107 Related Standaras ...... 108 Footnotes ...... 108 Bibliography ...... 110 Standard 72: blONITORING THE JURY SYSTEM ...... 111 Commentary ...... 111 Suggested Steps for Implementation ...... 112 Related Standaras ...... 113 Footnotes ...... 113 Bibliography ...... 114 Standard 13: JUROR USE ...... 116 Commentary ...... 116 Suggested Steps for Implementation ...... 120 Related Standards ...... 122 Footnotes ...... 122 bibliography ...... 124 -.I... \r' 3t andard 14: JURY FACILITIES ...... 126 Commentary ...... 126 Suggested Steps for Implementation ...... 128 Helatea Standaras ...... 129 Footnotes ...... 129 Bibliography ...... 130 ... St andara 75: JUROR COMPEhSATION ...... 131 Commentary ...... 131 Suggested Steps for Implementation ...... 133 Related Standards ...... 133 Footnotes ...... 133 bibliography ...... 135 Part D: Stanaaras Relating to Juror Performance and Deliberations Introduction ...... 137 Stanaard 16: JUROR OKIEhTATION HlVD IlVSTRUCTION ...... 138 Conunentary ...... 739 Suggested Steps for Implementation ...... 145 Related Standaras ...... 146 Footnotes ...... 146 bibliography ...... 148 Stanaard 17: JURY SIZE AlVD UNAlVIhITY OF VERDICT ...... 150 Conlmentary ...... 150 Suggested Steps for Implementation ...... 153 Related-Standards ...... 153 Footnotes ...... 153 Bibliography ...... 157

vi i \ \? . V).

Standari 18: JURY DELIBERATIONS ...... 162 C~entary...... 162 Suggested Steps for Implementation ...... 164 Related Standaras ...... 164 Footnotes ...... 164 Bibliography ...... 166 Standard 19: SEQUESTRATION OF JURORS ...... 167 Commentary ...... 167 Suggested Steps for Implementation ...... 169 Related Standards ...... 169 Footnotes ...... 170 Bibliography ...... 171

APPENUIX .Representativeness and Inclusiveness of Source Lists . . 173 GLOS-YRY ...... 177 INDEX ...... 192 I"

Introduction :

Guiding Statement of the Jury Standards Task Force and the ABA/JAD Jury Standards Committee Trial by jury is a fundamental concept of the American system of justice and has been instrumental in the preservation of individual rights while serving the interests of the general public. The significance of the jury is not limited to its role in the decision-making process; jury service also provides citizens with an opportunity to learn, observe and 'participate in the judicial process. The jury system affords an opportunity for citizens to develop an active concern for and interest in the administration of justice. Educaticn of the public in the role of the jury in the American legal system, therefore, is essential. Efficient court administration and management will best guarantee preservation of the jury system and enhance the quality of the decision-making process. Specifically, courts must seek to define those qualities and characteristics which constitute effective jury use and management. Courts must ensure that jury resources are utilized to the maximum degree of efficiency, while minimizing inconvenience to individual citizens. Courts must identify those procedures and processes that have proven successful in increasing the economies of jury service and must present such findings in a manner that will: be informative and suitable for application in courts throughout the United States.

--. Document Organization The goals of jury system management focus on increasing the overall efficiency of jury operations, reducing costs, and improving the attitudes of the citizenry about jury duty. Management of a jury system includes every aspect of selecting jurors and using their services from identifying prospective jurors and accurately predicting the courts' need for jurors, to providing adequate and comfortable facilities during their service as jurors. The standards set forth here are geared to meet these specific goals, as well as the more general goals outlined in the Guiding Statement.-

1 This tentative draft presents recommendations addressing four areas of jury management: selection of 'prospective jurors, selection of a particular jury, jury system efficiency, and juror education and comfort.

Each of the nineteen standards is accompanied by commentary that sets forth the rationale for the standard. Additionally, each standard and comnentary is followed by an outline of suggested actions for courts to taks in order to comply with the standard. In some areas the task force was unable to be as specific as it would have liked because of the wide variation in jury practices throughout the country.

A section on related standards references similar standards by other organizations. Those organizations, and standards documents are 1isted here for easy reference:

ABA, Criminal Justice Standards

American Bar Association Standards Relating to the Administration of Criminal Justice, Trial B Jury (Second Edition, Tentative Draft). Washington, D.C.: lG--%--erican ar Association, 1978

ABA, Trial Courts

American Bar Association Commission on Standards of Judicial Administration, Standards Relating to Trial Courts. Washington, D.C.: American Bar Association, 1976.

NAC, Courts

National Advisory Commission on Criminal Justice Standards and Goals, Courts. Washington, D.C., 1973.

NCCUSL, Uniform Jury Selection and Service Act

National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act. Reprinted in The Jury: Seler Readin s, ed. Glenn Winters. Chicago: American Judicature Society, dpp. 110-125. NCCUSL, Uniform Rules of Criminal Procedure

National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure (1974, Approved Draft). West Pumg, 1974.L;f

NDAA, National Prosecution Standards * -.-. National District Attorneys Association, National Prosecution +L Standards. Chicago: National District Attorneys Association, 1977. The bibliographies were put together by topic area to give courts that wanted to study selected aspects of jury management, the most complete set of references. A glossary provides term definitions, the appendix provides supplementary materi a1 on measuring the inclusiveness and representativeness of source lists, and the index provides easy cross-reference by subject. Tine reference material used as a basis for task force discussion and, thus, to develop the standards and commentary, will be published by the National Center for State Courts in the fall of 1982. The task force antici’pates that as the standards are implemented, experience will dictate that some be upgraded, some modified, and perhaps some discarded. Court personnel wi11 contribute to the dynamic process as they test the validity of the assumptions. Jury Use and Management Standards Tentative Draft July, 1982

Part A. Standards Relating to Selection of Prospective Jurors, Standard 1: OPPORTUNITY FOR JURY SERVICE THE OPPORTUNITY FOR JURY SERVICE SHOULD NOT BE DENIED OR LIMITED ON THE BASIS OF RACE, NATIONAL ORIGIN, GENDER, AGE, RELIGIOUS BELIEF, INCOME, OCCUPATION, OR ANY OTHER FACTOR THAT DISCRIM- INATES AGAINST A COGNIZABLE GROUP IN THE JURISDICTION.

Standard 2: JURY SOURCE LIST

(a) THE NAMES OF POTENTIAL JURORS SHOULD BE DRAWN FROM A JURY SOURCE LIST COWILEO FROM ONE OR MORE REGULARLY MAINTAINED LISTS OF PERSONS RESIOING IN THE COURT JURISDICTION.

(b) THE JURY SOURCE LIST SHOULD BE REPRESENTATIVE AND SHOULD BE AS INCLUSIVE OF THE ADULT POPULATION IN THE JURISDICTION AS IS FEASIBLE

(c) THE COURT SHOULD PERIODICALLY REVIEW THE JURY SOURCE LIST FOR ITS REPRESENTATIVENESS AND INCLUSIVENESS OF THE ADULT POPULATION IN THE JURISDICTION-

(d) SHOULD THE COURT DETERMINE THAT IMPROVEMENT IS NEEDED IN THE REPRESENTATIVENESS OR INCLUSIVENESS OF THE JURY SOURCE LIST, APPROPRIATE CORRECTIVE ACTION SHOULD BE TAKEN.

Standard 3: RANDOPI SELECTION PROCEDURES

(a) RANDOM SELECTION PROCEDURES SHOULD BE USED THROUGHOUT THE JUROR SELECTION PROCESS. ANY METHOD MAY BE USED, MANUAL OR AUTOMATED, THAT PROVIDES EACH ELIGIBLE AND AVAILABLE PERSON WITH AN EQUAL PROBABILITY OF SELECTION.

(b) RANDOM SELECTION PROCEDURES SHOULD BE EMPLOYED IN (i1 SELECTING PERSONS TO BE SUMMONED FOR JURY SERVICE; -E (ii) ASSIGNING PROSPECTIVE JURORS TO PANELS; AND (iii)CALLING PROSPECTIVE JURORS FOR VOIR DIRE.

I_ (c) DEPARTURES FROM THE PRINCPLE OF RANDOM SELECTION ARE APPROPRIATE (i)TO EXCLUDE PERSONS INELIGIBLE FOR SERVICE IN ACCORDANCE WITH STANDARD 4; (ii)TO EXCUSE OR DEFER PROSPECTIVE JURORS IN ACCORDANCE WITH STANDARD 6; (iii)TO REMOVE PROSPECTIVE JURORS FOR CAUSE OR IF CHALLENGED PEREMPTORILY IN ACCORDANCE WITH STANDARDS 8 AND 9; AND (iv) TO PROVIDE ALL PROSPECTIVE JURORS WITH AN OPPORTUNITY TO BE CALLED FOR JURY SERVICE AND TO BE ASSIGNED TO A PANEL IN ACCORDANCE WITH STANDARD 13.

Standard 4: ELIGIBILITY FOR JURY SERVICE ALL PERSONS SHOULD BE ELIGIBLE FOR JURY SERVICE EXCEPT THOSE WHO

(a) ARE LESS THAN EIGHTEEN YEARS OF AGE, OR (b) ARE NOT CITIZENS OF THE UNITED STATES, OR (c) ARE NOT RESIDENTS OF THE JURISDICTION IN WHICH THEY HAVE BEEN SUMMONED TO SERVE, OR (d) ARE NOT ABLE TO COMMUMCATE IN THE ENGLISH LANGUAGE, OR (e) HAVE BEEN CONVICTED OF A FELONY AND HAVE NOT HAD THEIR CIVIL RIGHTS RESTORED.

Standard 5: TERM OF AND AVAILABILITY FOR JURY SERVICE THE TIME THAT PERSONS ARE CALLED UPON TO PERFORM JURY SERVICE AND TG BE AVAILABLE THEREFOR, SHOULD BE THE SHORTEST PERIOD CONSISTENT WITH THE NEEDS OF JUSTICE.

(a) TERM OF SERVICE OF ONE DAY OR THE COMPLETION OF ONE TRIAL, WHICHEVER IS LONGER, IS RECOMMENDED. HOWEVER, A TERM OF ONE WEEK OR THE COWLETION OF ONE TRIAL, WHICHEVER IS LONGER, IS ACCEPTABLE.

(b) PERSONS SHOULD NOT BE REQUIRED TO MAINTAIN A STATUS OF AVAILABILITY FOR JURY SERVICE FOR LONGER THAN TWO WEEKS EXCEPT IN AREAS WITH FEW JURY TRIALS WHEN IT MAY BE APPROPRIATE FOR PERSONS TO BE AVAILABLE FUR SERVICE OVER A LONGER PERIOD OF TIME.

- Standard 6: EXEMPTION, EXCUSE AND DEFERRAL

(a) ALL AUTOMATIC EXCUSES OR EXEMPTIONS FROM JURY SERVICE SHOULD BE KLIMINATED. (b) ELIGIBLE PERSONS WHO ARE SUMMONED blAV BE EXCUSED FROM JURY SERVICE ONLY IF:

(i)THEIR ABILITY TO RECEIVE AND EVALUATE INFORMATION IS SO IMPAIRED THAT THEY ARE UNABLE TO PERFORM THEIR DUTIES AS JURORS AND THEY ARE EXCUSED FOR THIS REASON BY A JUDGE; OR (ii)THEY REQUEST TO BE EXCUSED BECAUSE THEIR SERVICE WOULD BE A CONTINUING HARDSHIP TO THEM OR TO MEMBERS OF THE PUBLIC, OR THEY HAVE BEEN CAlLED FOR JURY SERVICE DURING THE TWO YEARS PRECEDING THEIR SUMMONS, AND THEY ARE EXCUSED BY A JUDGE OR DULY AUTHORIZED COURT OFFICIAL.

(c) DEFERRALS OF JURY SERVICE FOR REASONABLY SHORT PERIOCS OF TIME MAY BE PERMITTED BY A JUDGE OR DULY AUTHORIZED COURT OFFICIAL.

(d) REQUESTS FOR EXCUSES AND DEFERRALS AND THEIR DISPOSITION SHOULD BE WRITTEN OR OTHERWISE MADE OF RECORD. SPECIFIC UNIFORM GUIDE- LINES FOR DETERMINING SUCH REQUESTS SHOULD BE ADOPTED BY THE COURT.

Part 6. Standards Relating to Selection of a Particular Jury. Standard 7: VOIR DIRE

VOIR DIRE EXAMINATION SHOULD BE LIMITED TO MATTERS RELEVANT TO DETERMINING WHETHER TO REMOVE A JUROR FOR CAUSE AND TO EXERCISING PEREMPTORY CHALLENGES.

(a) TO REDUCE THE TIME REQUIRED FOR VOIR DIRE, BASIC BACKGROUND INFORMATION REGARDING PANEL MEMBERS SHOULD BE MADE AVAILABLE IN WRITING TO COUNSEL FOR EACH PARTY ON THE DAY ON WHICH JURY SELECTION IS TO BEGIN.

(b) THE TRIAL JUDGE SHOULD CONDUCT THE INITIAL VOIR DIRE EXAMINATION. COUNSEL SHOULD BE PERMITTED TO QUESTION PANEL MEMBERS FOR A REASONABLE PERIOD OF TIME.

(c) THE JUDGE SHOULD ENSURE THAT THE PRIVACY OF PROSPECTIVE JURORS IS REASOlvABLY PROTECTED, AND THAT THE QUESTIONING BY COUNSEL IS CONSISTENT WITH THE PURPOSE OF THE VOIR DIRE PROCESS.

(d) IN CRIMINAL CASES, THE VOIR DIRE PROCESS SHOULG ALLJAYS BE HELD ON THE RECORD. IN CIVIL CASES, THE VOIR DIRE PROCESS SHOULD BE HELD ON THE RECORD UNLESS WAIVED BY THE PARTIES. Standard 8: REMOVAL FROM THE JURY PANEL FOR CAUSE IF THE JUDGE DETERMINES DURING THE VOIR DIRE PROCESS THAT ANY INDIVIDUAL IS UNABLE 3R UNWILLING TO HEAR THE PARTICULAR CASE AT ISSUE FAIRLY AhU INPARTIALLY, THAT INDIVIDUAL SHOULD BE REMOVED FROM THE PANEL. SUCH A DETERMINATION MAY BE MADE ON MOTION OF COUNSEL OR Oh THE JUDGE'S WN INITIATIVE.

. Standard 9: PEREMPTORY CHALLENGES THE NUMBER OF AhD PROCEDURE FOR EXERCISING PEREMPTORY CHALLENGES SHOULD BE UNIFORM THROUGHOUT THE STATE. PEREMPTORY CHALLENGES SHOULD BE LIMITED TO A NUMBER NO LARGER THAN NECESSARY TO PROVIDE REASONABLE ASSURANCE OF OBTAINING AN UNBIASEO JURY. IN CIVIL CASES, THE NUMBER OF PEREMPTORY CHALLENGES SHOULD NOT EXCEED THREE FOR EACH SIDE. IN CRIMINAL CASES, THE NUMBER OF PEREMPTORY CHALLENGES SHOULD NOT EXCEED (i)TEN FOR EACH SIDE WHEN A DEATH SENTENCE MAY BE IMPOSED UPON CONVICTION; (ii)FIVE FOR EACH SIDE WHEN A SENTENCE OF IMPRISONMENT FOR MORE THAN SIX MONTHS MAY BE IMPOSED UPON CONVICTION; OR (iii)THREE FOR EACH SIDE WHEN A SENTENCE OF INCARCERATION OF SIX MONTHS OR FEWER, OR WHEN ONLY A PENALTY NOT INVOLVING INCARCERATION MAY BE IMPOSED. ONE ADDITIONAL PEREMPTORY CHALLENGE SHOULD BE ALLOWED FOR EACH DEFENDANT IN A MULTI-DEFENDANT CRIMINAL PROCEED1 NG.

WHERE JURIES OF FEWER THAN TWELVE PERSONS ARE USED IN CIVIL OR PETTY OFFENSE CASES, THE NUMBER OF PEREMPTORY CHALLENGES SHOULD NOT EXCEED TWO FOR EACH SIDE.

ONE PEREMPTORY CHALLENGE SHOULD BE ALLOWED TO EACH SIDE IN A CIVIL OR CRIMINAL PRCCEEDING FOR EVERY TWO ALTERNATE JURORS TO BE SEATED.

THE TRIAL JUDGE SHOULD HAVE THE AUTHORITY TO ALLOW ADOITIONAL PEREMPTORY CHALLENGES WHEN JUSTIFIED. FOLLOIJI NG COMPLETION OF THE VOIR DIRE EXAM1 NATION, COUNSEL SHOULD EXERCISE THEIR PEREMPTORY CHALLENGES BY ALTERNATELY STRIKING NAMES FROM THE LIST OF PANEL MEMBERS UNTIL EACH SIDE HAS EXHAUSTED OR WAIVED THE PERMITTED NUkBER OF CHALLENGES.

7 Part C. Standards Relating to Efficient Jury Management. Standard 10: ADMINISTRATION OF THE JURY SYSTEM

THE RESPONSIBILITY FOR ADMINISTRATION OF THE JURY SYSTEM SHOULD BE VESTED EXCLUSIVELY IN THE JUDICIAL BRANCH OF GOVERNMENT.

(a) ALL PROCEDURES CONCERNING JURY SELECTION AND SERVICE SHOULD BE GOVERNED BY COURT RULES AND REGULATIONS PROMULGATED BY THE STATE'S HIGHEST COURT OR JUDICIAL COUNCIL.

(b) A SINGLE UNIFIED JURY SYSTEM SHOULD BE ESTABLISHED>INANY AREA IN WHICH TWO OR MORE COURTS CONDUCT JURY TRIALS. THIS APPLIES WHETHER THEY ARE OF THE SAME OR OF DIFFERING SUBJECT MUTTER OR GEOGRAPHIC JURISDICTION.

(c) RESPONSIBILITY FOR ADMINISTERING THE JURY SYSTEM SHOULD BE VESTEO IN A SINGLE ADMINISTRATOR ACTING UNDER THE SUPERVISION OF A PRESIDING JUDGE OF THE COURT.

Standard 11: NOTIFICATION AND SUMMONING PROCEDURES

(a) THE NOTICE SUMMONING A PERSON TO JURY SERVICE AND THE QUESTIONNAIRE ELICITING ESSENTIAL INFORMATION REGARDING THAT PERSON SHOULD BE

(i)COMBINED IN A SINGLE DOCUMENT;

(ii)PHRASED SO AS TO BE READILY UNDERSTOOD BY AN INDIVIDUAL UNFAMILIAR WITH THE LEGAL AND JURY SYSTEMS; AND,

(iii ) DELIYERED BY FIRST CLASS MAIL. A SUMMONS SHOULD CLEARLY EXPLAIN HOW AND WHEN THE RECIPIENT MUST RESPOND AND THE CONSEQUENCES OF A FAILURE TO RESPOND. THE QUESTIONNAISE SHOULD BE PHRASED AND ORGANIZED SO AS TO FACILITATE QUW D ACCURATE SCREENING, AND SHOULD REQUEST ONLY THAT INFORMATIO

(i)DETERMINING WHETHER A PERSON MEETS THE CRITERIA FOR ELIGIBILITY;

( i i) PROV IDI NG BAS1C BACKGROUND INFORMATION ORDI NARI LY SOUGHT DURIlvG VOIR DIKE EXAMINATION; AND

(iii) EFFICIENTLY MANAGING THE JURY SYSTEM.

(d) POLICIES AND PROCEDURES SHOULD BE ESTABLISHED FOR ENFORCING A SUMMONS TO REPORT FOR JURY SERVICE AND FOR MONITORING FAILURES TO RESPOND TO A SUMMONS. Standard-.12: MONITORING THE JURY SYSTEM COURTS SHOULD COLLECT AND ANALYZE INFORMATION REGARDING THE PERFORMANCE OF THE JURY SYSTEM ON A REGULAR BASIS IN ORDER TO ENSURE

(a) THE REPRESENTATIVENESS AND IRCLUSIVENESS OF THE JURY SOURCE LIST;

(b) THE EFFECTIVENESS OF QUALIFICATION AM SUMMON1 NG PROCEDURES; (c) THE RESPONSIVENESS OF INDIVIDUAL CITIZENS TO JURY DUTY SUMMONSES; (d) THE EFFICIENT USE OF JURORS; AND (e) THE COST EFFECTIVENESS OF THE JURY SYSTEH.

Standard 13: JUROR US€

(a) COURTS SHOULD EMPLOY THE SERVICES OF PROSPECTIVE JURORS SO AS TO ACHIEVE OPTIMUM USE WITH A MINIMUM OF INCONVENIENCE TO JURORS.

(b) COURTS SHOULD DETERMINE THE MINIMALLY SUFFICIENT NUMBER OF JURORS FtEEDED TO ACCOMMODATE TRIAL ACTIVITY. THIS INFORMATION AND APPROPR1,ATE MANAGEMENT TECHNIQUES SHOULD BE USED TO ADJUST BOTH THE NUWBER OF IMDIVIDUALS SUhhONED FOR JURY DUTY AND THE NUMBER ASSIGNED TO JURY PANELS.

(c) COURTS SHOULD ENSURE THAT EACH PROSPECTIVE JUROR WHO HAS REPORTED TO THE COURTHOUSE IS ASSIGNED TO A COURTROOM FOR VOIR DIRE BEFORE ANY PROSPECTIVE JUROR IS ASSIGNED A SECOND TIME.

(d) COURTS SHOULD COORDINATE JURY MANAGEMENT AND CALENDAR MANAGEMENT TO WKE EFFECTIVE USE OF JURORS.

Standard 14: JURY FACILITIES COURTS SHOULD PROVIDE AN ADEQUATE AND SUITABLE ENVIRONMENT FOR 3 UROR S .

(a) THE ENTRANCE AND REGISTRATION AREA SHOULD BE CLEARLY I IDENTIFIED AND APPROPRIATELY DESIGNED TO ACCOMMODATE THE DAILY FLOW OF PROSPECTIVE JURORS TO THE COURTHOUSE.

(b) JURORS SHOULD BE ACCOMMODATED IN PLEASANT WAITING FACILITIES FURNISHED WITH SUITABLE AMENITIES.

(c) JURY DELIBERATION ROOMS SHOULD INCLUDE SPACE, FURNISHINGS AND FACILITIES CONDUCIVE TO REACHING A FAIR VERDICT. THE SAFETY AND SECURITY OF THE DELIBERATION ROOMS SHOULD BE ENSURED. - (d) TO THE EXTENT FEASIBLE, JUROR FACILITIES SHOULD BE ARRANGED TO MINIMIZE CONTACT BETWEEN JURORS, PARTIES, COUNSEL AND THE PUBLIC.

Standard 15: JUROR COMPENSATION PERSONS CALLED FOR JURY SERVICE SHOULD RECEIVE: (i)A NOMINAL AMOUNT IN RECOGNITION OF OUT-OF-POCKET EXPENSES FOR THE FIRST DAY THEY REPORT TO THE COURTHOUSE; (ii)A REASONABLE FEE FOR EACH SUCCEEDING DAY THEY REPORT.

SUCH AMOUNTS AND FEES SHOULD BE PAID PROMPTLY. STATE LAW SHOULD PROHIBIT EMPLOYERS FROM DISCHARGING, LAYING-OFF, DENYING ADVANCEMENT OPPORTUNITIES TO, OR OTHERUSE PENALIZING EMPLOYEES WHO MISS WORK BECAUSE OF JURY SERVICE.

Standards Relating to Juror Performance and Deliberations Standard 16: JUROR ORIENTATION AND INSTRUCTION

(a) COURTS SHOULD PROVIDE SOME FORM OF ORIENTATION OR INSTRUCTIONS TO PERSONS CALLED FOR JURY SERVICE

UPON INITIAL CONTACT PRIOR TO SERVICE;

UPON FIRST APPEARANCE AT THE COURTHOUSE; i UPON REPORTING TO A COURTROOM FOR VOIR DIRE; DIRECTLY FOLLOWING EMPANELMENT;

DURING THE TRIAL;

PRIOR TO DELIBERATIONS; AND AFTER THE VERDICT HAS BEEN RENDERED OR WHEN A PROCEEDING IS TERMINATED WITHOUT A VERDICT. {b) ORIENTATION PROGRAMS SHOULD BE (i)DESIGNED TO INCREASE PROSPECTIVE JURORS' UNDERSTANDING OF THE JUDICIAL SYSTEM AND PREPARE THEM TO SERVE COWETENTLY AS JURORS; ( ii ) PRESENTED IN A UNIFORM AND EFFICIENT MANNER USING A COMBINATION OF WRITTEN, ORAL AND AUDIOVISUAL MATERIALS. . (c) THE TRIAL JUDGE SHOULD

(i) GIVE PRELIMINARY INSTRUCTIONS DIRECTLY FOLLOWING EMPANELMENT UF THE JURY TtiAT EXPLAiN THE JURY'S ROLE, THE TRIAL PROCEDURES INCLUDING NOTE-TAKING AND QUESTIONING BY JURORS, THE NATURE OF EVIDENCE AhD ITS EVALUATION, THE ISSUES TO BE ADDRESSED,'AND THE BASIC RELEVANT LEGAL PRINCIPLES. (ii)PRIOR TO THE COMMENCEMENT OF DELIBERATIONS, INSTRUCT THE JURY ON THE LAN, ON THE APPROPRIATE PROCEDURES TO BE FOLLOWED OUR1 NG DELIBERATIONS, AND ON THE APPROPRIATE METHOD FOR REPORTING THE RESULTS OF ITS DELIBERATIONS. SUCH INSTRUCTIONS SHOULD BE RECORDED OR REDUCED TO WRITING All0 MADE AVAILAELE TU THE JURORS DURING DELIBERATIONS.

(iii) PREPARE AND DELIVER INSTRUCTIONS WHICH ARE READILY UNOEhSTOOD BY IRDIVIDUALS UNFANILIAR WITH THE LEGAL SYSTEM.

(d) BEFORE DISMISSING A JURY AT THE CONCLUSION OF A CASE, THE TRIAL JUUGE SHOULD (i)RELEASE THE JURORS FROM THEIR DUTY OF CONFIDENTIALITY; (ii)EXPLAIN THEIR RIGHTS REGARDIhG INQUIRIES FROM COUNSEL OR THE PRESS; AlVD

(iii)EITHER ADVISE THEM THAT THEY ARE DISCHARGED FROM SERVICE OR SPEClFY WHERE THEY MUST REPORT.

THE JUDGE SHOULD EXPRESS APPRECIATION TO THE JURORS FOR THEIR SERVICE, BUT THE JUDGE SHOULD NOT EXPRESS APPROVAL OR DISAPPROVAL OF THE RESULT OF THE DELIBERATION.

(e) ALL CUWIUNICUTIONS BETWEEN THE JUDGE AND NEMBERS OF THE JURY PANEL FROM THE TIME OF REPORTING TO THE COURTROOM FOR VOIR DIRE UNTIL DISMISSAL SHOULD BE IN WRITING OR ON THE RECORD IN OPEN COURT. COUNSEL FOR EACH PARTY SHOULD BE INFORMED OF SUCH COMMUNICATION AND GIVEN THE OPPORTUNITY TO BE HEARD.

Standard 17: JURY SIZE AND UNANIMITY OF VERDICT

(a) JURIES IN CRIMINN CASES SHOULD CONSIST OF (i)TWELVE PERSUNS IF A PENALTY OF CONFINEMENT FOR MORE THAN SIX MONTHS MAY BE IMPOSED UPON CONVICTION; (ii)AT LEAST SIX PERSONS IF THE MAXIMUM PERIOD OF CONFINEMENT THAT MAY BE IMPOSED UPOR CONVICTION IS SIX MONTHS OR FEWER. A UNANIMOUS DECISION SHOULD BE REQUIRED FOR A VERDICT IN ALL CRIMINAL CASES HEARD BY A JURY. JURZES IN CIVIL CASES SHOULD CONSIST OF NO FEWER THAN SIX AND NO MORE THAN TWELVE PERSONS. IT IS ACCEPTABLE TO HAVE EITHER UNANIMOUS OR NONUNANIMOUS VERDICTS IN CIVIL CASES, PROVIDED HOWEVER THAT A CIVIL JURY SHOULD NOT &E AUTHORIZED TO RETURN A VERDICT WHICH IS CONCURRED IN BY LESS THAN THREE QUARTERS OF ITS MEMBERS.

Standard 18: JURY DELIBERATIONS JURY DELfBERATIONS SHOULD TAKE PLACE UNDER CONDITIONS AND PURSUANT TO PROCEDURES THAT ARE DESIGNED TO ENSURE IMPARTIALITY AND TO ENHANCE RATIONAL DECISION-MAKI NG THE JUOGE SHOULD INSTRUCT THE JURY CONCERNING APPROPRIATE PROCEDURES TO BE FOLLOWED DURING DELIBERATIONS IN ACCORDANCE WITH STANDARD 16(c).

THE DELIBERATION ROOM SHOULD CONFORM TO THE RECOMMENDATIONS SET FORTH Ih STANDARD 14(c).

THE JURY SHOULD NOT BE SEQUESTERED EXCEPT UNDER THE CIRCUMSTANCES AND PROCEOURES SET FORTH IN STANDARD 19. A JURY SHOULD NOT BE REQUIRED TO DELIBERATE AFTER NORMAL WORKING HOURS UNLESS THE TRIAL JUDGE AFTER CONSULTATION WITH COUNSEL DETERMINES THAT EVENING OR WEEKEND DELIBERATIONS WOULD NOT IMPOSE AN ilNDUE HARDSHIP UPON THE JURORS AND ARE REQUIRED IN THE INTERESTS OF JUSTICE. TRAINING SHOULD BE PROVIDED TO PERSONNEL WHO ESCORT AND ASSIST JURORS DURING DELIBERATION,

Standard 19: SEQUESTRATION OF JURORS (a) A JURY SHOULD BE SEQUESTERED ONLY FOR THE PURPOSE OF INSULATING ITS_MEMBERS FROM IMPROPER INFORMATION OR INFLUENCES.

(b) THE TRIAL JUDGE SHOULD HAVE THE DISCRETION TO SEQUESTER A JURY ON THE MOTION OF COUNSEL OR ON THE JUDGE'S INITIATIVE, AND THE RESPONSIBILITY TO OVERSEE THE CONDITIOkS OF SEQUESTRATION.

(c) STANDARD PROCEDURES SHOULD BE PROMULGATED TO MAKE CERTAIN THAT: (i) THE PURPOSE OF SEQUESTRATION IS ACHIEVED; AND (ii) THE INCONVENIENCE AND DISCOMFORT OF THE SEQUESTERED JURORS IS MINIPiIZED.

Standards and Commentary -.-

Part A: Standards Relating to Selection of Prospective Jurors

Standard 1: OPPORTUNITY FOR SERVICE Standard 2: JURY SOURCE LIST Standard 3: RANDOM SELECTION PROCEDURES Standard 4: ELIGIBILITY FOR JURY SERVICE .% -, Standard 5: TERM OF AND AVAILABILITY FOR GRVICE Standard 6: EXEMPTION, EXCUSE HhL, DEFERRAL .. . PART A: STANDARDS RELATING TO SELECTION OF PROSPECTIVE JURORS Introaucti on In Taylor v. Louisiana, the United States Supreme Court stated that: We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. ... Community participation in the administration of the criminal law... is not only consistent with our aemocratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. 'Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case.. .. [T]he broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.' Thiel v. Southern Pacific Co., 328 U.S. 217, 227 (1946) mkfurter, J. , dissenting). 1

The primary objectives of the standards in this section are to ensure that the pool of prospective jurors reflects the fair-cross section of the community called or by the Court in Thiel, Ta lor, and other jury discrimination cases,$ and that jury servms across as broad a proportion of the eligible population as feasible. The standards, commentaries, and suggested implementation actions seek to identify means of accomplishing these objectives in a cost-efficient manner. They are arranged in roughly the same sequence as the jury selection process itself. In keeping with these objectives, Standard 1 delineates the duty of the court, commission or individual responsible for managing the jury selection process, to avoid practices and procedures that curtail the opportunity of any legally cognizable group in the community to serve on the jury. The subsequent standard reinforces this principle by specifying that the source ;ist--i.e., the compilation of lists from which are drawn the names of persons subject to'being called for jury service -- should be representative of the cognizable groups in the cormunity and as inclusive as is practicable. It urges the courts to review the source list periodically to make certain that it is current and that any deficiencies in coverage are corrected. Standard 3 recommends that random selection procedures be used at each appropriate point in the jury selection process so as to ensure that the representativeness provided by a broadly based source list is not inadvertently diminished or consciously a1 tered. Standard 4 addresses the qualifications required for jury service. It limits eligibility restrictions to those that are essential to maintaining the integrity of the judicial process and aef-ines the requirements so that they are easily - determinable on an objective basis. Standard 5 addresses the tepm of service. It recognizes that reducing the length of jury service can help to minimize the hardship and inconvenience imposed by jury duty, to permit elimination of exemptions from jury service ana the enforcement of a strict excuse policy, and thereby, to increase substantially the representativeness and inclusiveness of the jury pool. Accordingly, the standard strongly encourages adoption of a one day/one trial system and recommends that persons not actually serving on a trial jury should be required to remain available for jury service for no more than two weeks. Finally, Standard 6 tackles the question of exemptions, excuses and deferrals. It proposes that all automatic excuses and exemptions be eliminated, that the grounds for granting an excuse be limited, and that the needs of individual prospective jurors be accommodated by deferring jury service to a more convenient specific future date. As is evident from the above summary, this set of interlocking standaras covers a range of aifficult and controversial issues. The recommendations attempt to combine the constitutional prerequisites with the best of current practice so as to present a practical and reasonable guide to state ana local jurisdictions for improving their. jury systems.

F WTNOT ES 1. 419 U.S. 522, 530-531 (1975).

2. See. e. Peters v. Kiff, 407 U.S. 493 (1972); Castenada v. Partida di82(1977); Ouren v. Missoura’, 439 U.S. 357 (1979). Standard 1: OPPORTUNITY FOR SERVICE THE OPPORTUNITY FOR JURY SERVICE SHOULD NOT BE OENIED OK LIMITED Oh THE BASIS OF RACE, NATIONAL ORIGIN, GENDER, AGE, RELIGIOUS BELIEF, IrUCClkE, OCCUPATIOh, CIK ANY OTHER FACTOR THAT DISCRIMINATES AGAINST A COGNIZABLE GROUP IN THE JURISDICTION.

COPiME NTAKY The standard stresses that each group and individual should have the opportunity for jury service, and that none should be excluded. By ensuring that everyone has the opportunity to serve, a court not only increases the number of inaividuals serving as jurors, but also increases representativeness. The Supreme Court has recently held that a prima facie violation of the fair cross-section requirement is shown when a distinctive group in the community is not represented in the venires from which juries are selected in a fair and reasonable relationship to the number of such persons in the community; and the underrepresentation is due to the systematic exclusion of the group in the jury selection process. 1 Uver the years, the courts have been asked to decide whether particular juror selection procedures have violated the fair cross-section requirement and interfered with the right to be considered for jury service by improperly curtai ing the opportunity of certain cognizable groups to serve on a jury.l Among the segments 05 the populat'on that have been id ntified as a kogn'zable g oup" are Blacks) Hispanic-American native America s,' women,' pybsons who work for a daily wag d'comrnon labor sY8 non-theists, students and professors," youn83 people," and persons who object in principle to the death penalty. The standard seeks to protect against discrimination based on race, national origin, age, sex, religious belief, and economic status. As notea, however, in Hernandez v. Texas [Clommunity prejudices are not static and from time to time other differences from the community norm may de ine other groups which need the same protection. f4

Accordingly, as other factors are identified by the courts or legislature which have operatea to discriminate against cognizable groups in the

r- \ 16 comnunity (e.g., the emerging law arding discrimination against persons whose mobility is impaired 757 , appropriate measures should be taken to ensure that those factors are not employed to curtail the opportunity for jury service. The standard places on the court, the commission, or the individual responsible for managing the jury selection process, the duty to avoid any practices or procedures that are discriminatory in purpose or effect. It urges the entity or individual responsible for the jury operation to remain alert and sensitive to measures that may limit the opportunity of segments of the community to serve on a jury. The duty to avoid discriminatory practicss applies at all stages of the jury selection process, including, but not limited to the selection of names from the source list and the master list; the granting of excuses and deferrals; and the exercise of peremptory challenges. Of course, there still must be some criteria for determining eligibility for jury service. But as indicated in Standard 4, these should be limited to those qualificati ns essential for maintaining the integrity of the judicial process. ?6

SUGGESTED STEPS FOR IMPLEMENTATION 1. Compare the source list being used for the names of potential jurors with population data of the jurisdiction. 2. Take corrective action(s) such as supplementing the source list with additional lists. 3. Examine court 2olicies on granting excuses. 4. Take corrective action(s) such as establishing written and uniform procedures for granting excuses. 5. Examine court practices with respect to peremptory challenges during the voir dire process. 6. Take corrective action if the voir dire process discriminates against any cognizable group in the jurisdiction.

RELATED STANDARDS ABA, Criminal Justice Standards 15-2.1 (c) A&U, Trial Courts 2.11 NAC, Courts: Silent NCCUSL, Uniform Jury Selection and Service Act Section 8(b) NCCUSL, Uniform Rules of Criminal Procedure: Si lent NDAA, National Prosecution Standards 17.2( B)

17 FOOTNOTES 1. Duren v. Missouri, 439 U.S. 357, 364 (1979).

2. See, e.g., cases cited in Standard 2: Jury Source List.

3. I.e., a commonly recognized group of people who share some distinctive perspectives. See Hernandez vs. Texas, 347 U.S. 475, 478 (1954); J. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels, 69 (1977); see also United States v. Test, 550 F.2d 5/7, 591 (10th Cir. 1976); Unwtesv. Kuhn, 441 F.2d 179 (5th Cir. 1971).

4. Carter v. Jury Commission of Green County, 396 U.S. 320 (1970); Turner v. Fouche, 396 U.S. 346 (1970); Alexander v. Louisiana, 405 U.S. 625 (1972).

5. Hernandez v. Texas, 347 U.S. 475 (1954); Castaneda v. Partida, 430 U.S. 82 (1977).

6. State v. Plenty Horse, 85 S.D. 401, 184 N.W.2d 654 (1971); United States v. Freeman, 514 F.2d 171 (8th Cir. 1975). 7. Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439 U.S. 357 (1979). 8. Thiel v. Southern Pacific Co., 328 U.S. 217 (1946); People v. White, 43 Cal . 2d 740, 278 P.2d 9 (1954). 9. Simmons v. State, 182 So.2d 442 (Fla. App. 1966). 10. State v. Madison, 240 Md. 265, 213 A.2d 880 (1965).

11. United States v. Butera, 420 F.2d 564 (1st Cir. 1970); Feople v. Fujitu, 43 Cal. App. 30 454 117 Cal. Rptr. 757 (1974) (dicta); State v. Holmstron, 43 his. 2d 465, 168 N.W.2d 574 (1969) (dicta); contra United States v. Gargan, 314 F. Supp. 414 (W.U. Wis. 1970) affd. sub nom United States v. Gast, 457 F.2d 141 (7th Cir.) cert. denied, 406 Y.S. 969 (1972); United States v. Kuhn, 441 F.2d 1/9 (5th Cir. 1971); People v. Holland, Cal. App. 3d 530, 99 Cal. Rptr. 523 (1,971); People v. Redwine, DU Mich. App. 593, 213 N.W. 2d 841 (1974).

12. State v. Jensen, 405 A.2d 3 (R.I. 1979), 13. Witherspoon v. Illinois, 391 U.S. 510 (1968). - = 14. Hernandez v. Texas. 15 See e ., Architectural Barriers Act of 1968, 42 U.S.C. $5 4151-4156 (Ii7m%ilitation Act Amendments of 1973, 29 U.S.C. 9 794 (1976); ARIZ. REV. STAT. ANN. 5 34-403 (SU~P. 1977); FLA. STAT. ANN. 55 255.21 and 553.48 (West 1975 81 Supp. 1978); ILL. ANN, STAT. ch. 171, 9 12 (Smith Hurd Supp. 1978); N.J. STAT. ANN. 5 52:32-6 (West Supp. 1977); Bartels v. Biernat, 405 F. Supp. (E.D. Wis. 1975). 16. Standard 4: Eligibility for Jury Service; see also Standard 8: Removal for Cause. BI BLIOGRAPHY OPPORTUNITY FOR JURY SERVICE

American Bar Association Standards on the Administration of Criminal Justice: Trial by J - (2d ed. Approved Draft) New York: American Bar Association, 19 IOArkansas' Key-Man Jury Selection Procedures: Opportunity for Discrimination." Arkansas Law Review 30 (1977): 527-536. Ashby, J.B. "Juror Selection and the Sixth Amendment Right to an Impartial Jury." Creighton Law Review 11 (1978): 1137-1 168. "Attica Jury Pools and the Intent Requirement of the Equal Protection Clause." Buffalo Law Review 24 (1975): 347-368. Baldwin, J. and M. McConville. "Representativeness of Juries." -New taw Journal 129 (1979): 284-286. Beiser, E.N. "Are Juries Representative?" Judicature 57 (1973): 194-139. Cartwright, R.E. "Jury Selection." -Trial 13 (1977): 28-31. "Case Against the Use of Public Opinion Polls As an Aid in Jury Selection." Rutgers Journal of Computers, Technology, and the Law 6 (1978): 177-193. "Challenging the Juror Selection System in New York." Albany Law Review 36 (1972): 305-329.

Cleary, J.C. "Jury Selection in a Federal Criminal Case.11 Practical . Lawyer 26 (1980): 37-47. 'Constitutional Law-Criminal Law--Jury Selection." New Yolrk Law Forum 21 (1976): 505-514. Daughtrey, M.C. %ross Sectionalism in Jury Selection Procedures After Taylor v. Louisiana." Tennessee Law Review 43 (1975): 1-107. "Di scriminatory Jury Selection: Reversible Error Regardless of Defendant's Own Race." University of Miami Law Review 27 (1972): 238-242. Dogin, H.S. and 0.1. Tevelin. "Jury Systems of the Eighties: Toward A Fairer Cross-Section and Increased Efficiency." University of Toledo Law Review 11 (1980): 939-956. 18EconomicDiscrimination in Jury Selection.n1 Law and Social-Order (7970): 474-491 National Center for State Courts. Facets of the Jury System: A Survey. Denver: National Center for State Courts, 19/6. "Federal Courts--Juror Selection--Underrepresentation of Young Adults on Juror Source Lists." Wayne Law Review 19 (1973): 1287-1298. Hawrish, E. and E. Tate. "Determinants of Jury Selection.'' Saskatchewan Law Review 39 (!974-1975): 285-292. "The Jury Selection and Service Act--The Cross-Section Principle as a Constitutional Right and the Use of Voter Registration Lists as an Administrative Technique to Insure a Defendant Due Process Under the Law." St. Mary's Law Journal 4 (1972): 470-479. #'Juries: The Ordeal of Serving." -Time (February 7, 1969): 35. "Jury Select*ion and the Equal Protection C1 ause." UCLA-A1 aska Law Review 2 (1973): 141-156. Kennedy, T.F. Jr. "Constitutional Trends of Systematic Exclusion in Grand and Petit Juries." National Journal of Criminal Defense 3 (1977): 2 77-288. "Key-Man System of State Jury Selection as a Source of Violation of the Fourteenth Amendment." Dickinson Law Review 77 (1972): 117-138. Levine, A.G. and C. Schweber-Koren. "Jury Selection in Erie County: Changing a Sexist System." Law and Society Review 11 (1976): 43-55. Mackoff, B.S. llJurySelection for the Seventies." Judicature 55 (1977): 100-104. MacPhail, J.A. "Jury of Peers?" Pennsylvania Bar Association Quarterly 42 (1971): 412-419. McKusick, V. and D. Boxer. "Unifcrrn Jury Selection and Service Act." Harvard Journal of Leqislation 8 (1971): 280-309. National Jury Project. The Jury System: New Methods for Reducinq Prejudice. Berkeley, Calif.: National Jury Project, 1975. National Jury Project. Jurywork: Systematic Techniques. Berkeley, Calif.: National Jury Project, 1979. llPauper--Short-Changed at the Jury BOX." West Virginia Law Review 74 (1972): 392-401. Potash, D. "Mandatory Inclusion of Racial Minorities on Jury ?anels." Black Law Journal 3 (1973): 80-95. 81Prohibitionof Group-Based Stereotypes in Jury Selection Procedures.N Villanova Law Review 25 (1980): 339-363. "Report of the Committee on the Operation of the Jury System of the Judicial Conference of the United States." 42 Federal Rules of OecSsion (April 1976): 353, llRepresentative Cross-Section Sta2dard: Another Sixth Amendment Fundamental Right .I1 Loyol a Law Review 21 (1975): 995-1003 . Simon, R.J. The Jury: Its Role in American Society. Lexington, MA: Lexington Books, 1980. llSixth Amendment Right to a Fair Cross Section of the Community-A Change in Emphasis." Missouri Law Review 41 (1976): 446-457.

Solomon, M. Management of the Jury System Chicago: American Bar Association, 1975,

Summers, M.R. "A Comparative Study of the Quality of Federal and State , Jurors." Wisconsin Bar Bulletin 34 (1961): 35-42. "Taylor v. Louisiana: The Jury Cross-Section Crosses the State Line." Connecticut Law Review 7 (1975): 508-528. "Underrepresentatior1 of Economic Groups on Federal Juries." Boston University Law Review 57 (1977): 198-224. United States Congress, Senate. Committee on the Judiciary, "Federal Jury Selection.: 90th Congress, 1st Session,ll 1967: 43. Van Dyke, J. "The American Jury.11 The Center Magazine 10, No. 3 (1977): 36-48. : Our Uncertain Comitment

Zeigler, D.H., llYoung Adults as a Cognizable Group in Jury Selection," Michigan Law Review 76 (1978): 1045-1100.

22 Standard 2: JURY SOURCE LIST (a) THE NAMES OF POTENTIAL JURORS SHOULD BE DRAWN FROM A JURY SOURCE LIST COMPILED FROM ONE OR MORE REGULARLY MAINTAINED LISTS OF PERSONS RES1DI NG IN THE COURT JURISDICTION. (b) THE JURY SOURCE LIST SHOULD BE REPRESENTATIVE AND SHOULD BE AS INCLUSIVE OF THE ADULT POPULATION IN THE JURISDICTION AS IS FEASIBLE.

(c) THE COURT SHOULD PERIODICALLY REVIEW THE JURY SOURCE LIST FOR ITS KEPRESENTATIVENESS AND INCLUSIVENESS OF THE ADULT POPULATION IN THE

JURISDICTION. (d) SHOULD THE COUPT DETERMINE THAT IMPROVEMENT IS NEEDED IN THE

REPRESENTATIVENESS OR INCLUSIVENESS OF THE JURY SOURCE LIST,

APPROPRIATE CORRECTIVE ACTION SHOULD BE TAKEN.

COMMENTARY Paragraph (a) Organized Source Lists The role of the jury is to determine fairly and impartially the facts of a case from the evidence presented and thereafter to apply the law to . these facts in individual cases. Hence, the selection of a jury from "a fair cross-section of the commun'ty is considered to be fundamental to the American system of justice.'I1 As the Supreme Court has observed When any large identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that their exclusion deprives the jury of a perspective on human events that may be of unsusp cted importance in any case that may be presented. F Because no practical way exists to pick prospective jurors from the population at large, organized source lists must be used. The representativeness of the jury is, therefore, initially dependent on the quality of the source list. The closeness of this relationship was succinctly stated by the Supreme Court of California in People v. Wheeler. llObviously, if that [the source] list is not representative a cross-section of the community, the process is defective -ab initio. ,'Sf The standard encompasses three elements. The first is the importance of a representative cross-section of the community on the source list from which prospective jurors are selected. The second is an affirmative duty to examine the source(s) of names from which prospective jurors are selected in order to ensure that the list is representative, with an emphasis on the responsibility to update the source list periodically. And third is the resporasibilitjl, once a soilrce list is determined deficient in coverage, to examine other lists to correct the deficiency. Paragraph (b) Inclusiveness and Representativeness Represefitativeness and inclusiveness are conceptually distinct and may even be antagonistic in practice. Inclusiveness has to do with the percent of the entire adult population in a jurisdiction which is included in the sourc+ list. A source list can be representative, yet not very inclusive. For example, in a county of 1,000 eligible people of whom 25 percent are black, a source list of 100 people, 25 of whom are black, would be fully representative of blacks but only 10 percent inclusive, because 90 percent of the eligible population is excluded. On the other hand, a quite inclusive source can significantly underrepresent cognizable groups that constitute a small percent of the adult population. For example, consider a county in which the source list includes 900 of the 1,000 eligible adults in the population. Further, suppose that the list was constructed in such a way that only 50 of the 100 blacks in the population were included in the source list. Even though this hypothetical source list is 90 percent inclusive, it is nonetheless extremely underrepresentative with respect to race. (For a complete discussion of source 1 ist representativeness and inclusiveness see the "AppendixI1 to this document.) There can be absolute certainty that a source list is -both representative and inclusive on1 when it contains 100 percent Df the eligible population. Practica-+ constraints, however, will always render it impossible to establish empirically that a source list is representative with respect to all "qualities of human nature and varieties of human experience'# which may affect a juror's reaction to a case and performance as a juror. Whenever the source list is less than fully inclusive, the jur? may be deprived "of a perspective on human events that may be of unsuspected importance in any case that may be presented." Since "the people on...a source list may well have considerably different values, attitudes and experience fron the rest of the eligible population,Il and since it is unlikely that such values, attitudes and experience would ever be measured, the degree to which a

24 source is truly representative with respect to relevant juror characteristics will a ways be questionable as long as the source is not 100 percent inclusive. I The standard does not specify a minimum inclusiveness criterion. Much of the ll’terature and recent practice in local courts, however, indicates that a jury source list that covers 85 percent of the adult population in a jurisdiction is a reasonable goal. In order to include 85 percent, most jurisdictions would require the use of sources in addition to the voter registration list. Convenient and inexpensive methods exist to produce combined source lists that are 95 percent inclusive in many districts. Officials responsible for preparing the source list are strongly encouraged to make it as inclusive as possible given financial and statutory limitations. It must be understood, however, that increasing inclusiveness can sometimes render a list less representative. For example, if the list of property owners underrepresents the same cognizable groups as the voter list, adding the list of property owners to the source, composed of voter lists, will produce a combined source list that has greater comparative disparity than the original. Officials, therefore, should make the source as inclusive as possible subject to the condition that it be representative. Paragraphs (c) and (d) Periodic Review and Corrective Action The standard recommends periodic examination of the source list being used by a jurisdiction for summoning prospective jurors in order to ensure that the list is both representative and inclusive of the adult population in that jurisdiction. If the list is found deficient in any WZJ, the standard places the responsibility for taking appropriate steps to correct the deficiency with the court. This may involve coordination with those gencies supplying the list in order to update it more frequently. !?

In order to meet the goals of representativeness and inclusiveness, many jurisdictions will have to go beyond the roll of registered voters for the names of potential jurors. Nationally, only 71 percent of the voting-age population was registered to vote in 197$.6 In some states the level of registration is well bejow 60 percent. In addition, because of differential voting rates, voter registration lists have been shown to underrepresent significantly certain portions of the population. For example, surveys-conducted by the U.S. Census Bureau found that non-whites, the poor, and the young register to vote at substantially lower rates than other population groupsO8 Many lists, if they are reasonably current, can be used as a supplement to, or substitute for, the roll of registered voters. These include lists of licensed drivers, persons counted in a local census, utility customers, newly naturalized citizens, persons with telephones, parents of children enrolled in public schools, property owners, or motor vehicle owners. In many instances, the list of licensed drivers will be the most suitable and convenient substitute for, or supplement to, the

’1 I i voter registration list. In most jurisdictions, more individuals are licensed to drive than are registered to vote. Moreover, 7he driver list appears to offer the best opportunity to draw in those groups typically left out by the voter list. A 1976 study of the San Diego County Superior Court found that the driver list included 83 percent of the county's over-eighteen population, in contrast to the voter list's 56 percent coverage. Although the driver list did not identify drivers by race, the much higher rate of inclusiveness would, by itself, tend to increase the representation of blacks and other minorities on the jury list. The San Diego driver list percentage is typical of the nation, for approximately 84 percent of the United States' driving-age 'population is licensed to drive while in sev nteen states the percentage exceeds 90 percent. 5 Another good substitute or supplement is a local census list. Unless a jurisdiction is already conducting such a censirs, however, the cost of a door-to-door count probably precludes the use of this technique solely for juror selection purposes. The other lists noted above are suitable only as supplements to the voter registration, licensed driver, or local census lists. Although they are usually more current than the lists of voters and drivers, each has serious gaps in coverage as well as other limitations. For example, women and young people are usually underrepresented in city directories, telephone directories, and uti1 ity customer 1 ists. These same groups are also disproportionate absent from state real estate, personal property, and income tax lists.I8 In addition, use of these lists is complicated by their inclusion of business as well as individual entries, and it is often difficult to ascertain geographical jurisdiction from the information that they contain. Thus, they will usually be of limited incremental value. In the selection of lists to be used to form a jury source list, the frequency with which names are added to and deleted from those lists and the corrections made for addresses and other information should be carefully considered. Using lists that are seldom culled of the names of persons who, for example, have failed to renew their registration or driving license, or lists that are not otherwise kept current is likely to increase the number of summonses that must be issued, and the cost of the jury selection process, and is also likely to hamper efforts to provide a representative panel. Accordingly, when a list that would increase the inclusiveness of the juror source list is updated infrequently, discus:;ions should be held with the agency or organization compiling that list in order to seek ways of keeping it more current and to identify systemic elements, such as restricting legislation, that impede updating of the list. Similar discussions should be initiated when a potentially useful list is not in a format that would permit its use for jury selection purposes or does not contain critical bits of infomation--e.g., the list omits addresses or classifies persons within geographical boundaries that differ from those defining the court's juri sdi ct ion. An argument that has often been voiced against the use of multiple lists has been the difficulty and cost of combining the lists and ensuring that individuals are not entered on the combined list more than once. Techniques have been recently developed, however, to ,accomplish these tasks, either manually or by computer, at relatively little cost. These techniques have been tested in the juror source list context and have been found to be effective. A description of the methods employed and further references are provided in the MethodQlogy Manual for Jury Systems prepared by the Center for Jury Stuaies.Ii

SUGGESTED STEPS FOR IMPLEMENTATION

< 1. Periodically examine the list(s) used by the jurisdiction for sumnoning,prospective jurors for the degree of representativeness and for coverage.of the adult population in the jurisdiction. 2. Examine each list to determine (i) whether it omits or underrepresents any age, race, or sex within the community; (ii) whether it provides the requisite information for determining juror eligibility, including name, address, and whether living within the geographic boundaries of the court's jurisdiction; and (iii) how frequently and in what manner the list is kept current and accurate. 3. Determine the representativeness and inclusiveness of each list by comparing it against the latest available local, state, or federal census estimate or a more recent, re1 iable population projection. 4. If the list(s) presently being used are not inclusive of or . representative of the adult population, take steps to identify new lists that would alleviate the problem. o Identify additional 1 ists that are avai lable--e.g., 1 ists of registered voters, licensed drivers, persons counted in a local census, utility customers, newly naturalized citizens, persons with telephones, parents of children enrolled in public schools, property owners, motor vehicle owners, and persons with hunting, trapping, and/or fishing 1 icenses. o Rank the lists in order of their representativeness and inclusiveness of the adult population. o Qetermine the list or combination of li s that will provide a jury source list meeting the standards. Tk 5. Establish procedures for regular review of the list(s) for the degree of representativeness and inclusiveness of the adult population. (For a detailed discussion of this topic, see the Appendix to this document). 6, Establish procedures for correcting or changing the list(s) if it is found to be underrepresentative or non-inclusive of the adult population.

RELATED STANDARDS ABA, Criminal Justice Standards 15-2.1 (a) ALIA, Trial Courts 2-61 NAC, Courts: Silent NCCUSL, Uniform Jury Selection and Service Act Section 1, 5(a) NCCUSL, Uniform Rules Gf Criminal Procedure: Silent NDM, National Prosecution Standards 17.2(A)

FOOTNOTES l. Taylor v. Louisiana, 419 U. S. 522, 530 (1975). 2. Peters v. Kiff, 407 U. S. 493, 503-04 (1972); see also People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890, 583 P. 2d 748 (1978). 3. -Id., at 22 Cal. 3d 266-267; 148 Cal Rptr. 896. 4. J. Kairys, J. Kadane, and J. Lehoczky, "Jury Representativeness: A Mandate For Muitiple Lists," 65 California Law Review 776, 802 (1977). 5. One example of a procedure that could provide assistance to the jury manager in periodically reviewing the source 1 ist for representativeness and inclusiveness, is establishment of a monitoring committee composed of lawyers and the general public under the supervision of the court. See Standard 12: Monitoring the Jury System. 6. Center for Jury Studies, "Voter Registration by States", Center for Jury Studies Newsletter No. 6 1979; see also U.S. Bureau of Census," Voting and Registration in the Election of November 1976 (1977). 7. Id. 8. H. Dogin and D. Tevelin, "Jury Systems of the Eighties: Toward A Fairer Cross-Section and Increased Efficiency," U. of Toledo Law Review 939 (1980). See also U.S. Bureau of Census, Voting and Registration in the Election of November 1972, Series P-20, No. 253 9 at 1 (l9/3). 9. -Id. 11. Center for Jury Studies, Methodoloqy Manual for Jury Systems, 2-1

(1979) 0 12. For a thorough discussion of the procedures for improving the quality and inclusiveness of juror source lists, see id.; P. Cameron and To Cameron, Action Plan Guide for Improving Jury Systems (1981).

29 BIBLIOGRAPHY SOURCE LIST

Administrative Office of the United States Courts. Automating Jur Clerical Work. Washington, U.C.: Administrative Office of thi United States Courts, 1974. Alker, H., Jr., Hosticka, C. and M. Mitchell. 81JurySelection As a Biased Social Process." Law and Society Review 11 (1976): 9-41. Alker, H., Jr. "Procedural and Social Biases in the Jury Selection Process." Justice System Journal 3 (1978): 220-241 . 1 IIAlphabetical Bias." Center for Jury Studies Newsletter 1, No. 6 (1979): 5-6. American Bar Association Standards on the Administration of Criminal Justice: 7 td. Approved Draft) New York: Am erican Bar Association,rw= (2d "Arkansas' Key-Man Jury Selection Procedures: Opportunity for Discrimination." Arkansas Law Review 30 (1977): 527-536. Ashby, J.B. "Juror Selection and the Sixth Amendment Right to an Impartial Jury." Creighton Law Review 11 (1978): 1137-1168. "Attica Jury Pools and the Intent Requirement of the Equal Protection Clause." Buffalo Law Review 24 ('1975): 347-368. Baldwin, J. and M. McConvil le. "Representativeness of Juries." -New Law Journal 129 (1979): 284-286. Beiser, E.N. "Are Juries Representative?l' Judicature 57 (1973): 194-199.

I "CA 10 Rejects Attack on Use ofColorado Voter Lists As Juror Source." Criminal Law Reporter 20 (1976): 2190-2196. Cannito, J.A. "Case for Limited Use of Polls in the Jury Selection - Process." Rutgers Journal of computers, Technology, and the Law 7 (1979): 111-134. Cartwright, R.E. "Jury Selection." -Trial 13 (1977): 28-31. "Case Against the Use of Public Opinion Polls As an Aid in Jury Selection." Rutgers Journal of Computers, Technology, and the Law 6 (1978): 177-195. Center for Jury Studies. Methodology Manual for Jury Systems. McLean, Virginia: Center for Jury btudies, m. 'Uallen in the Juror Selection System in New York." Albany Law Review 36 (7978): 305-329. Cleary, J.C. "Jury Selection in a Federal Criminal Case." Practical Lawyer 26 (1980): 37-47. Yomputers and Scientific Jury Selection: A Calcuated Risk." University of Detroit Journal of Urban Law 55 (1978): 343-370. "Constitutional Law--Criminal Law--Jury Seie~tion.~' New York Law Forum 21 (1976): 505-514. Daughtrey, M.C. 'Cross-Sectional ism in Jury Selection Procedures After Taylor v. Louisiana." Tennessee Law Review 43 (1975): 1-107. Davis, M.D. %ame Theory Approach to Jury Selection." --Trial 12 (1976): 47-49. llDiscriminatoryJury Selection: Reversible Error Regardless of Defendant's Own Race." University of Miami Law Review 27 (1972): 238-242. Oogin, ti.S. and D.I. Tevelin. "Jury Systems of the Eighties: Toward A Fairer Cross-Section and Increased Efficiency." University of Toledo Law Revjew 11 (1980): 939-956. Draper, J.h. "Validity of Requirement or Practice of Selecting Prospective Jurors Exclusively From List of Registered Voters." Arizona Law Review 3d (1980): 869-955. "Drivers Licenses by States." Center for Jury Studies Newsletter 2, No. 1 (1980): 7. l'Economic Discrimination in Jury Selection." Law and Social Order (1970): 474-491. "The Election and Jury Duty." Center for Jury Studies Newsletter 2, No. 6 (1980): 1. "Fair Distribution of Jury Service." Center for Jury Studies Newsletter 2, NO. 6 (1980): 4-5. "Federal Courts--Juror Selection--Underrepresentation of Young Adults on Juror Source Lists." Wayne Law Review 19 (1973): 1287-1298. Finkelstein, M. "The Application of Statistical Decision Theory to Jury Discrimination Cases." Harvard Law Review 80 (1966): 338-376. Gelfand, A.E. and J.E. Davis. "Jury''Jury List in Connecticut: Is the Voter Registration List TrulyTrui y Representative?" Connecticut Bar Journal 52 (1978): 449-474.

. Gewin, W. P. "An Analysis of Jury Selection Decisions: Foster v Sparks." Federal Reporter 506 (Second Edition) 805 (1975):1-837. Gewin, W.P. "The Jury Selection and Service Act of 1968: Implemen- tation in the Fifth Circuit Court of Appeals." Mercer Law Review 20 (1969): 349-385. Hawrish, E. and E. fate. ##Determinantsof Jury Selecti+-n.8t Saskatchewan Law Review 39 (1974-1975): 285-292. "How to Pick Jurors from Multiple Lists." Criminal Justice Newsletter 8, No. 24 (1977): 6. "Juries: The Ordeal of Serving." -Time (February 7, 1969): 35. "The Jury Selection and Service Act-The Cross-Section Principle as a Constitutional Right and the Use of Voter Registration Lists as an Administrative Technique to Insure a Defendant Due Process Under the Law." St. Mary's Law Journal 4 (1972): 470-479. "Jury Selection and the Equal Protection Clause." UCLA-Alaska Law Review 2 (1973): 141-146.

"Jury Selection in Mi.ssouri.I@ Journal of the Missouri'Bar 27 (1971): 398-4 10 . "Jury Selection Procedures: A Reform." Suffolk University Law Review 6 (1972): 865-896. "Juror Selection Process." Suffolk University Law Review 6 (1972): 1124-1 131. Kadane, J. and J. Lehoctky. "Random Juror Selection from Multiple Lists." Operations Research 24 (1976): 207-219. Kairys, D.; J. Kadane and J. Lehoczky. "Jury Representativeness: A Mandate 'for Multiple Source Lists." California Law Review 65 (1977): 776-827 Kairys, 0. Uror Selection: The Law, A Mathematical Method of Analysis, and a Case Study." American Criminal Law Review 10 (1972): 77 1-806 . Kennedy, T.F. Jr. "Constitutional Trends of Systematic Exclusion in Grand and Petit Juries." National Journal of Criminal Defense 3 (1977): 277-288. "Key-Man System of State Jury Selection as a Source of Violation of the Fourteenth Amendment." Dickinson Law Review 77 (1972): 117-138. Koskoff, M.P. and 8.J. Hodgson. I@Jury Selection: Everybody into the Pool: The Case for Supplementing the Voter List." Connectjcut Bar Journal 52 (1978): 475-502.

32 Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice. A Guide to Juror Usage. Washington, L).C.: U.S. Department of Justice, 1914. Law Enforcement Assistance Administration, National Institute of Law Enforcement and Crimiilal Justice. A Guide to Jury System Management. Washington, Q.C.: U.S. Department of Justice, 1975. Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice. The Use of Multiple Lists for Jury Selection, A Report to the Superior Court of San Diego County. Washington, D.C.: Government Printing Office, 1978. Levine, A.G. and C. Schweber-Koren. "Jury Selection in Erie County: Changing a Sexist System." Law and Society Review 11 (1976): 43-55. Mackoff, B.S. "Jury Selection for the Seventies." Judicature 55 (1977): 100-104. MacPhai 1 J.A. "Jury of Peers?" Pennsylvania Bar Association Quarterly 42 (1971): 412-419. Martin, M. "A1 aska's Jury System." A1 aska Court System Newsletter 26 (February 1980): 26-27, "The McOuffie Trial." Center for Jury Studies Newsletter 2, No. 4 (7980): 2. McKusick, V. and Q. Boxer. "Uniform Jury Selection and Service Act." Harvard Journal of Legislation 8 (1971): 280-309. Michael, M. and J.V. Rowan. Thallenge to Jury Composition in North Carolina." North Carolina Central Law Journal 7 (1975): 1-24. Miller, H.G. "Forty-Pour Common Blunders of Jury Selection," -Law -Notes 15 (1979): 91-95. "Multiple Source Lists." Center for Jury Studies Newsletter 2, No. 1 (1980): 3-5. National Center for State Courts. Facets of the Jury System: A Survey, Denver: National Center for State Courts, 1976. National Jury Project. The Jury System: New Methods for Reducinq Prejudice. Berkeley, Calif .: National Jury Project, 1975. National Jury Project. Jurywork: Systematic Techniques. Berkeley, Calif.: National Jury Project, 19/9. "Pauper--Short-Changed at the Jury Box,11 West Virginia Law Review 74 (1972): 392-401. Potash, 0. "Mandatory Inclusion of Racial Minorities on Jury Pane1s.I1 Black Law Journal 3 (1973): 80-95. 81Prohibitionof Group-Based Stereotypes in Jury Selection Procedures.11 Villanova Law Review 25 (1960): 339-363.

"The Recall Problem: Why Houston Runs Through the Entire Voter List.11 Center for Jury Studies Newsletter 1, No. 1: 6. "Report of the Committee on the Operation of the Jury System of the Judicial Conference of the United States." 42 Federal Rules of Decision (April 1976): 353. Report of the President's Comnission on Registration and Voting Washington, D.C.: Government Printing Office,

"Representative Cross-Section Standard: Another Sixth Amendment Fundamental Right .I1 Loyol a Law Review 21 (1975): 995-1003. Simon, R.3. The Jury: Its Role in American Society. Lexington, Mass.: Lexington Books, 1980. "Sixth Amendment Right to a Fair Cross Section of the Community--A Change in Emphasis." Missouri Law Review 41 (1976): 446-457. Solomon, M. Management of the Jury System: Chicago: American Bar Association, 1915. Sperlich, P. and M.L. Jaspovice. "Methods for the Analysis of Jury Panel Selections: Testing for Discrimination in a Series of Panels." Hastings Quarterly Law Review 6 (1979): 787-852. Stanley, A.J. Jr. "Federal Jury Selection and Service Before and After 1968.11 Federal Rules of Decision 66 (1975): 375-382. Summer, F.A. Voter Registration Lists: Do They Yield a Jury Representative of the Community?" University of Michigan- Journal of Law Reform 5 (1972): 385-407. Summers, M.R. "A Comparative Study of the Quality of Federal and State Jurors." Wisconsin Bar Bulletin 34 (1961): 35-42. "Taylor v. Louisiana: The Jury Cross-Section Crosses the State Line." Connecticut-Reviw 7 (1975): 508-528.

34 'Underrepresentation of Economic Groups on Federal Juries. Boston University Law Review 57 (1977): 198-224.

United States Bureau of Census. Voting and Registration in the Election of November 1972." Current Population Repoh. Series P-20, No. 253. Washington, D.C.: Government Printing Office, 1973. United States Congress, Senate. Committee on the Judiciary. "Federal Jury Selection.: 90th Congress, 1st Session,'u 1967: 43. United States Congress, Senate. Congressional Recwd. "Use of Voter Registration Lists for Jury Selection," by EdwarT M. Kennedy, 94th Congress, 1st Session; April 15, 1975: 55985. Van Dyke, 3. "The American Jury." The Center Magazin'e- 10, No. 3 (1977): 36-48. Van Dyke, J. Jury Selection Procedures: Our Uncertain Commitment to Representative Panels. Cambridge, Mass.: Bal l~ingerPublishing Co., 1977. Zeigler, D.H. "Young Adults As P. Cognizable Group in Jury Selection." Michiqan Law Review 76 (1978): 1045-1 100.

Zeisel, H. and S.S. Diamond. "Jury Selection in the Mitchell-Stans Conspiracy Trial." American Bar Foundation Research Journal 1976: 151-1 74.

35 Standard 3: RANDOM SELECTION PROCEDURES RANDOM SELECTION PROCEDURES SHOULD BE USED THROUGHOUT THE JUROR SELECTION PROCESS. ANY METHOD MAY BE USED, MANUAL OR AUTOMTED, THAT PROVIDES EACH ELIGIBLE AND AVAILABLE PERSON WITH AN EQUAL PROBABILITY

OF SELECTION.

RANDOk SELECTION PROCEDURES SHOULD BE EMPLOYED IN

(i) SELECTING PERSONS TO BE SUMMONED FOR JURY SERVICE;

(ii) ASSIGNING PROSPECTIVE JURORS TO PANELS; AND

(iii)CALLING PROSPECTIVE JURORS FOR VOIR DIRE. DEPARTURES FROM THE PRINCIPLE OF RANDOM SELECTION ARE APPROPRIATE

TO EXCLUDE PERSONS INELIGIBLE FOR SERVICE IN ACCORDANCE WITH

STANDARD 4;

TO EXCUSE OR DEFER PROSPECTIVE JURORS IN ACCORDANCE WITH

STANDARD 6; TO REMOVE PROSPECTIVE JURORS FOR CAUSE OR IF CHALLENGED PEREMPTORILY IN ACCqRDANCE WITH STANDARDS 8 AND 9; AND TO PROVIDE ALL PROSPECTIVE JURORS WITH AN OPPORTUNITY TO BE CALLED FOR JURY SERVICE AND TO BE ASSIGNED TO A PANEL IN ACCORDANCE WITH STANDARD 13.

COMMENTARY Paragraph (a) General Principle In order to ensure that the representativeness provided by a broadly based jury source list is not inadvertently dimi'rrished or consciously altered, this standard calls for the use of random select'on procedures at all appropriate stages of the juror selection procass.] The standard makes clear that in order for selection procedures to be truly random, each name must have "the same chance as every other name of being

36 chosen."Z This may be accomplished through a number of techn such as the use of a random number table or computer rogram, or automated "random start/f ixed interval" procedure? or blindly picking slips of paper or capsules containing a name or number from a box or drum. In developing the selection process, care should be taken to avoid a system that may be 'nominally random and at the same time open to man i pu 1 at ion or un i n t en t i ona 1 but systemat i c b i as. 'I5 Consider the jurisdiction where voter registration name cards are drawn at random by hand from filing cabinets. The jury commissioner cannot see the name or any other identifying information on the card, so he or she does not know whom he or she is drawing, and theoretically he or she cannot discriminate. However, the filing cabinets are organized by voter precincts and various ethnic groups tend to be concentrated in certain precincts. Omission of a file cabinet from the selection process therefore may exclude a substantial number of minority residents.6 Paragraph (b) Applicable Stages Random selection prucidures are particularly appropriate at three points in the jury selection process: the identification of names of the persons to be summoned for jury duty; assignment of those persons to pacels; and the determination of the order in which prospective jurors are considered for empanelment during voir dire. Randomization procedures may be repeated at each of these stages. For example, the individuals who have been randomly selected to be summoned could be assigned to panels in the order in which their ames are drawn from a drum on the first day of their term of ~ervice.~An equally effective method for maintaining randomness is to keep the names of those to be summoned in the order in which they were picked from the so rce list or master list until a jury has been selected from each panel.! The clerk or jury commissioner can simply begin at the top of the list of summoned jurors and assign the first set of names to panel one, the next set to panel two and so on until the necessary number of panels have been formed. Under either method, the prospective jurors should be advised during the initial orientation that they have been selected for jury service and assigned to panels in a manner designed to maximize representativeness and that it is essential that they sit in the assigned order when they are called to a courtrotjm. Paragraph (c) Exceptions The standard lists four instances in which random selection procedures are not appropriate. The first three are when an individual's eligibility, availability for service, or impartiality in a particular case is at issue. Clearly, a rational non-random decision must be made in each of these areas to ensure the integrity, quality, and efficient operation of the jury system. It has been suggested that permitting

" defer a1 of jury service interferes with the random character of the jury p001.~ However, if the number of persons who may be deferred to a particular date is limited to a small percent of the total number of prospective jurors reporting, both the representativeness of the jury pool and the g dwill generated by permitting postponement of service can be mai ntai ned. 98 The fourth instance listed in the standard addresses a possible side effect of a completely random selection. Unless there is an opportunity for all persons on a list to be selected before a name can be drawn a second time, some individuals will be called upon to serve several times while others will not be called at all. To overcome this problem, a Ilrandomization without replacement'' system can be used. Under such a system, the entire jury source list (or master list in those jurisdictions which draw a master list from the jury source list) is exhausted before a name can be drawn a second time. Similarly, every person in the juror pool would be sent to a courtroom for voir dire before an individua returned to the pool after jury selection can be sent a second time. 11

Using the procedwes outlined above, in conjunction with other practices recommended elsewhere in this volume, should ensure that all cognizable groups are represented in the pools from which juries are selected, in a fair and r sonable relationship to the number of such persons in the community>9 and that the experience of serving on a jury is shared by as high a proportion of the eligible population as is possible.

SUGGESTED STEPS FOR IMPLEMENTATION 1. Determine whether current selection procedures are consistent with the standard. 2. If they are not, review relevant statutes and court rules to determine whether they permit implementation of the recommended procedures. 3. Initiate appropriate legislation or rule changes if those provisions do not permit use of the recommended procedures.

RELATED STANDARDS ABA, Criminal Justice Standards 15-2.1 (a) MA, Trial Courts 2.61 NAC, Courts: Silent NCCUSL, Uniform Jury Selection and Service Act Section 1 NCCUSL, Uniform Rules of Criminal Procedure: Si lent NDAA, National Prosecution Standards 17.2 (A)

I FOOTNOTES

1. See American Bar Association CommissiCommissionon StanaaStanaardslY -ds onI JudicJudicial ia1 AdmiAdminmration, nmr.ation, Standards RelatinqRelatin to TriaTrial Courts, 06 2.612.6 (Approvedroved Draft 1976);197'6); Americahn American Bar Association, Sta I the Administrationtrati on - of Criminal Justice: Trial by Jury 5 15-2.1-d15-2.q 7Draft, 1978);'-- see alsoa- 1so National Conference of Commissioners on UniformUn iform StateStaIt ;e Laws,Law'S, Uniformform JuryJu SelectionSe 1ec t ion I and Service Act, 5 1 (1971); NatNational ional DisDistrictt AttornAttorneyeY Association,Associati on, National Prosecution Standards,Standards 5 17.2 (A) (1976);1976); M. SolSolomon, omon , Management of the Jury System, 16 (1975)Chereinafter197 5 ) C h erei na fter citedc ited as So 1omon]. 2. Solomon, supra note 1. 3. For a discussion of the use of random number tables and an example. see 3 Center for Jury Studies Newsletter No. 4, pp. 6-7 (1981) (hereinafter cited as Newsletter). 4. When the random-start/fixed-interval method is used, names on the source list are numbered in sequence. The number of names to be selected from the source list is divided into the total number on the list; the result is called an "interval." Then a random number is selected between one and the interval number; this is the startifig number (i.e., random-start) corresponding to the first name of the subset. The interval number is then added successively to the starting number and so on to determine other names in the subset. It should be noted that when the interval selected is larger than the occurrence of a particular cognizable group in the source list, the possibility exists that the group may be underrepresented in the names selected.

5. Solomon, supra note 1 (emphasis in the original). 6. -Id. Other examples of nominally random but biased selection procedures include selecting on the basis of weight (since women generally weigh less than men, the sample drawn will be skewed); on the basis of the first letter of occupation; or on the basis of the early arrival at the courthouse. For a further discussion of random selection procedures, see Newsletter, supra note 3, at 4-7.

7. Under the struck jury system recomnended in Standard 9(g), it would not be necessary to randomly select the members of the panel who would be seated initially in the jury box or the replacements for any prospective jurors who are peremptorily challenged or removed for cause. 8. Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice. A Guide to Jury System Management, Washington, D.C.: U.S. Department of Justice, 1915, 2-9.

9. Center for Jury Studies, Methodology Manual fc? Jury Systems, 4-6 (1979) .

39 10. The Center for Jury Studies suggests that no more than 10 to 15 percent of a jury pool should be individuals whose jtiry service has been postponed from an earlier date. -Id. 11. Newsletter, supra note 3, at 5. For a more detailed discuss on of randomization without replacement, see the commentary to Standard 13: Juror Use. 12. Ouren v. Missouri, 439 U.S. 357, 364 (1979).

_. . 81 BL I OGRAPHY RANDOFi SELECTION

Alker, H., Jr., Hosticka, C. and M. Mitchell. I'Jury Selection As a Biased Social Process." Law and Society Review 11 (1976): 9-41. Alker, H., Jr. ''Procedural and Social Biases in the Jury Selection Process." Justice System Journal 3 (1978): 220-241. "Alphabetical Bias." Center for Jury Studies Mewsletter 1, No. 6 (1979): 5-6. American Bar Association Standards on the Administration of Criminal Justice: Trial by J ury. (2d Ed . Approved Draft) New York: American Bar Associa+i"nY" ."I., IQ'QId,". "Arkansas' Key-Man Jury Selection Procedures: Opportunity for Discrimination." Arkansas Law Review 30 (1977): 527-536. Ashby, J.B. "Juror Selection and the Sixth Amendment Right to an Impartial Jury." Creighton Law Review 11 (1978): 1137-1 168. "Attica Jury Pools and the Irrtent Requirement of the Equal Protection Clause." Buffalo Law Review 24 (1975): 347-368. Cannito, J.A. "Case for Limited Use of Polls in the Jury Selection Process." Rutgers Journal of Computers, Technology, and the Law 7 (1979): 111-134. /$ Cartwright, R.E.. "Jury Selection." -Trial 13 (1977): 28-31 . "Case Against the Use of Public Opinion Polls As an Aid in Jury Selection." Rutqers Journal of Computers, Technology, and the Law 6 (1978): 177-195. Center for Jury Studies. Methodology Manual for Jury Systems. McLean, Va.: _Center for Jury Studies, 1980. "Challenging the Juror Selection System in New York." Albany Law Review - 36 (1972): 305-329. Cleary, J.C. "Jury Selection in a Federal Criminal Case." Practical Lawyer 26 (1980): 37-47. 8Tornputers and Scientific Jury Selection: A Calcuated Risk." University of Detroit Journal of Urban Law 55 (1978): 343-370. "Constitutional Law-Criminal Law--Jury Selection." New York Law Forum 21 (1976): 505-514. \

41 Daughtrey, M.C. "Cross Sectionalism in Jury Selection Procedures After Taylor v. Louisiana." Tennessee Law Review 43 (1975): 1-107. Davis, M.D. "Game Theory Approach to Jury Selection." -Trial 12 (1976): 47-49. I'Discriminatory Jury Selection: Reversible Error Regardless of Defendant's Own Race." University of hiami Law Review 27 (1972): 238-242. Dogin, H.S. and D.I. Tevelin. "Jury Systems of the Eighties: Toward A Fairer Cross-Section and Increased Efficiency." University of Toledo Law Review 11 (1980): 939-956. Draper, J.N. "Validity of Requirement or Practice of Selecting Prospective Jurors Exclusively From List of Registered Voters." Arizona Law Review 3d (1980): 869-955. Vlrivers Licenses by States." Center for Jury Studies Newsletter 2, No. 1 (1980): 7. iJEconomicDiscrimination in Jury Selection," Law and Social Order (1970): 474-491. "The Election and Jury Duty." Center for Jury Studies Newsletter 2, No. 6 (1980): 1. National Center for State Courts. Facets of the Jury System: A Survey. Denver: National Center for State Courts, 19/6. "Fair Di s=tFibution of Jury Service." Center for Jury Studies Newsletter 2, NO. 6 (1980): 4-5. "Federal Courts-Juror Selection--Underrepresentation of Young Adults on Juror Source Lists.J1 Wayne Law Review 19 (1973): 1287-1298. Finkelstein, M. "The Application of Statistical Decision Theory to Jury Discrimination Cases." Harvard law Review 80 (1966): 338-376. Gelfand. A.E. and J.E. Davis. "Jury List in Connecticut: Is the * Voter Registration List Truiy Representative?" Connecticut Bar Journal 52 (1978): 449-474. Gewin, W.P. "An Analysis of Jury Selection Decisions: Foster v, Sparks.4' Federal Reporter 506 (Second Edition) 805 (1975): 81 l-83/. L-. Gewin, W.P. "The Jury Selection and Service Act of 1968: Implemen- tation in the Fifth Circuit Court of Appeals." Mercer Law Review 20 (1969): 349-385. Hawrish, E. and E. Tate. NOeterminants of Jury Selection.ii Saskatchewan Law Review 39 (1974-1975): 285-292.

42 "HOW to Pick Jurors from Multiple Lists." Criminal Justice Newsletter 8, No. 24 (1977): 6. "The Jury Selection and Service Act--The Cross-Section Principle as a Constitutional Right and the Use of Voter Registration Lists as an Administrative Techniaue to Insure a Defendant Due Process Under the Law." St. Mary's Law Journal 4 (1972): 470-479. "Juries: The Ordeal of Serving." -Time (February 7, 1969): 35. '18;ury Selection and the Equal Protection Clause." UCLA-Alaska Law Review ' 2 (1973): 141-156.

"Jury Selection in Missouri.'' Journal of the Missouri Bar 27 (1971): 398-410.

"Jury Selection Procedures: A Reform." Suffolk University Law Review 6 (19721: 865-896.

"Juror Selection Process." Suffolk UnSversity Law Review 6 (1972): 1124-1 131 . Kadane, 3. and J. Lehoczky. "Random Juror Selection from Multiple Lists." Operations Research 24 (1976): 207-2'19.

Kairys, 0. "Juror Selection: The Law, a hatherriatical Method of Analysis, and a Case Study." American Crimit:al Law Review 10 (1972): 7 7 1-806.

Kairys, D.; Kadane, J. and J. Lehoczky. "Jtiry Representativeness: A Mandate for Multiple Source Lists." California Law Review 65 (1977): 776-827 . Kennedy, T.F. Jr. Yonstitutional Trends of Systematic Exclusion in Grand and Petit Juries." National Journal of Criminal Defense 3 (1977): 2 77-288 . "Key-Man System of State Jury Selection as a Source of Violation of the Fourteenth Amendment." Dickinson Law Review 77 (1972): 117438.

Koskoff, M.P. and B.J. Hodgson. "Jury Selection: Everybody into the Pool: The Case for Supplementing the Voter List." Connecticut Bar Journal 52 (1978): 475-502.

Law Enforcement Assistance Administration, Nationa? Institute of Law Enforcement and Criminal Justice. The Use of Multiple Lists for Jury Selection, A Report to the Superior Court of San Diego County. Washington:, D.C.: Government Printing Office, 1978.

Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice. A Guide to Juror Usaqe. Washington, D.C.: U.S. Department of Justice, 1974.

43 Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice. A Guide to Jury System Management. Washington, D.C.: U.S. Department of Justice, 1975. Levine, A.G. and C. Schweber-Koren. @'Jury Selection in Erie County: Changing a Sexist System." Law and Society Review 11 (1976): 43-55. Macauley, W. and E. Heubel. "Achieving Representative Juries: A System that Works.Il Judicature 65 (1981) 126-135. Mackoff, B.S. "Jury Selection for the Seventies." Judicature 55 (1977): 100-104. MacPhai 1, J.A. "Jury of Peers?" Pennsylvania Bar Association Quarterly 42 (1971): 412-419. Martin, M. llAlaskalsJury System" Alaska Court System Newsletter 26 (February 1980): 26-27. "The McDuffie Trial." Center for Jury Studies Newsletter 2, No. 4 (1980): 2. McKusick, V. and D. Boxer. "Uniform Jury Selection and Sewice Act." Harvard Journal of Legislation 8 (1971): 280-309. Michael, M. and J.V. Rowan. "Challenge to Jury Composition in North Carolina." North Carolina Central Law Journal 7 (1975): 1-24. Miller, H.G. "Forty-four Common Blunders of Jury Selection.'' -Law Notes 15 (1979): 91-95. "Multiple Source Lists." Center for Jury Studies Newsletter 2, No. 1 (1980): 3-5. National Jury Project. The Jury System: New Methods for Reducinq Prejudice. Berkeley, Calif .: National Jury Project, 1975. National Jury Project. Jurywork: Systematic Techniques. Berkeley, Calif .: National Jury Project, 1979. "Pauper--Short-Changed at the Jury Box." West Virginia Law Review 74 (1972): 392-401. Potash, D. '@Mandatory Inclusion of Racial Minorities on Jury Panels." Black Law Journal 3 (1973): 80-95. 'Prohibition of Group-Based Stereotypes in Jury Selection Proced~res.~~ Villanova Law Review 25 (1980): 339-363. A Proposed Method for Adding Holders of Drivers Licenses As A Source List for Creation of the District of Columbia District Court's Master Jury Wheel. Washington, D.C.: Resource Planning Corporation (1975).

44 "The Recall Problem: Why Houston Runs Through the Entire Voter List." Center for Jury Studies Newsletter I, No. 1 (1979): 6. U8Reportof the Committee on the Operation of the Jury System of the Judicial Conference of' the United States." 42 Federal Rules of Decision (April 1976): 353. Report of the President's Comnission on Registration and Voting +Po ulation. Washington, D.C.: Government Printing Office, "Representative Cross-Section Standard: Another Sixth Amendment Fundamental Right." Loyola Law Review 21 (1975): 995-1003. Simon, R.J. The Jury: Its Role in American Society. Lexington, Mass.: Lexington Books, 1980. "bixth Amendment Right to a Fair Cross Section of the Community--A Change in Emphasis." Missouri Law Review 41 (1976): 446-457. Solomon, M. Management of the Jury System. Chicago: American Bar Assoc i at i on, '3 975. Sperlich, P. and M.L. Jaspovice. "Methods for the Analysis of Jury Panel Selections: Testing for Discrimination in a Series of Panels." Hastings Quarterly Law Review 6 (1979): 787-852. Stanley, A.J. Jr. "Federal Jury Selection and Service Before and After 1968." Federal Rules of liecision 66 (1975): 375-382.

- Summer, F.A. "Voter Registration Lists: Do They Yield a Jury Representative of the University of Michigan Journal of Law Reform 5 (1972): 385-407. Sumers, M.R. "A Comparative Study of the Quality of Federal and State Jurors." Wisconsin Bar Bulletin 34 (1961): 35-42. "Taylor v. Louisiana: The Jury Cross-Section Crosses the State Line." Connecticut Law Review 7 (1975): 508-528. Yhderrepresentation of Economic Groups on Federal Juries." Boston - University Law Review 57 (1977): 198-224. United States Bureau of Census. Voting and Registration in the Election of November 1972." Current Population Reports. Series P-20, No. 253. Washington, D.C.: Government Printing Office, 1973. United States Congress, Senate. Committee on the Judiciary. "Federal Jury Selection: 90th Congress, 1st Session," 1967: 43. United States Congress, Senate. Congressional Record. "Use of Voter Registration Lists for Jury Selection," by Edward M. Kennedy 94th Congress, Tst Session; April 15, 1975: 55985. Van Dyke, 3. "The American Jury." The Center Magazine 10, No. 3 (1977): 36-48.

Zeigler, D.H. "Young Adults As A Cognizable Group in Jury Selection." Michigan Law Review 76 (1978): 1045-1100. Zeisel, H. and S.S. Diamond, "Jury Selection in the Mitchell-Stans Conspiracy Trial." American Bar Foundation Research Journal 1976: 151-1 74. Standard 4: ELIGIBILITY FOR JURY SERVICE ALL PERSONS SHOULD BE ELIGIBLE FOR JURY SERVICE EXCEPT THOSE WHO

(a) ARE LESS THAN EIGHTEEN YEARS OF AGE, OR

(b) ARE NOT CITIZEhS OF THE UNITED STATES, OR

(d) ARE NOT ABLE TU COMMUNICATE IN THE ENGLISH LANGUAGE, OR (e) HAVE BEEN CONVICTED OF A FELONY AND HAVE NOT HAD THEIR CIVIL RIGHTS RESTORED.

COMMENTARY Generally 7 This standard is designed to extend the privilege and responsibilities of jury service to as broad a segment of the population as is possible. The imposition of myriad eligibility requirements not only adversely affects the inclusiveness of the jury selection process, but may also increase the cost of administering the jury system. Hence, the qualifications for jury service listed in the standard are limited to those five that are essential to maintaining the integrity of the judici a1 process,

This standard recognizes further, that vague or discriminatory eligibility criteria for jury service can substantially diminish the representativeness achieved through the use of a broadly based juror source list and random jury selection procedures. In the past, subjective riteria such as being ‘‘of sound mind and good moral character,11f have been justified by the need to ensure that potentiiil juror are competent to decide the factual questions presented to them.$ The chairperson of the federal judiciary’s Committee on the Operation of the Jury System, Judge Irving R. Kaufman, refuted this justification on the basis that long experience with subjective requirements such as ‘intelligence’ and ‘common sense’ has demonstrated beyond any doubt that these vague terms provide a fertile ground for discrimination and arbitrariness, even when the jury officials act in good faith.... They have nothing to do with

47 'intelligence,' 'comnon sense,' or what is more important, ability to understand the issues in a trial. And they are discrirninalory--usual ly against the poor. The end result of subjective tests is not to secure inore intelligen jurors, but more homogeneous jurors.... s Accordingly, the limitations on eligibilit included in the standard are easily determinable on an objective basis. 2y Paragraph (a) Age Requirement

The first limitation on eligibility is t at only persons age 18 and over should be permitted to serve on a jury.e Although any demarcation on the basis of age is arbitrary, age 18 appears to be the most logical starting point for eligibility for jury service because it is he age at which individuals become eligible t vote in federal electionsk and is the age of majorit in most states.? Currently 44 states require citizens to be at 7east 18 years of age in order to be eligible for jury service; the remaining 6 states set higher age requirernentsO8 Although 21 states prohibit or automatically excuse persons beyond a certain age (generally 65 or 70) .from jury ser~ice,~such a blanket exclusion unnecessarily precludes many older Americans able and willing to partkipate in the jury process from doing so. Consequently, no maximum age limit is recommended. Paraqraph (b) Citizenship Requirement

The second limitation is that a person must he a citizen of the United States in order to serve as a juror.10 This requirement is already imposed by most states either by law or in fact through reliance upon th voter list as the primary source for names of potential Jury service, together with voting and holding elective office, are nearly the only privileges/responsibilities that may be exercised clusive1y.by citizens. Although non-citizens may serve as attorneys,?$ hold government jobs, l3and undertake other important tasks and positions of trust in our society, jury service, voting, and holding elective office have been considered key decision-making duties that should be reserved for those with the commitment to the American political and judicial systems represented by citizenship. The restriction of jury service to citizens may affect the degree to which the pool of prospective jurors fairly reflects a cross section of the community in jurisdictions with a large resident alien population. Not to impose this restriction, however, would substantially diminish the significance of citizenship. Indeed, the desire to participate in the fundamental judgments made through the election and jury processes may serve as one of the primary incentives for attaining citizenship.

48 Paragraph (c) Residency Requirement The third restriction is that all prospective jurors must be residents of the jurisdiction in which they have been called to serve. In accordance with the statutes f most states, the standard recommends no minimum period of residence.lS The imposition of minimum periods of residence in a jurisdiction have been premised, in part, on the desire to ensure %ome substantial nexus between a juror and the community whose sense of justice the jury as a whole is expected to ref1e~t.I~~~In view of the highly mobile nature of our society and the corresponding reduction in regional differences, however, this rationale no longer appears supportable, especially in the face its adverse impact on the inclusiveness of the jury selection process.pg Moreover, unnecessarily lengthy periods of reside y have been ruled unconstitutiona prerequisites for votingYvr/and receiving pub1 ic assistance,1 gasand as one commentator has suggested [although] no court has yet struck down a [period of] residency requirement for jury service, [n]o persuasive reasoning has been offered to justify a continuing residence for jury service when it is unconstitutional for virtually all other governmental Punctions....Persons new to a community are just as much a part of it as long-time resident and have a valid point of view on its activities. ?9

Accordingly, the term resident is intended to refer to all persons living in the jurisdiction. It includes in addition to domiciliaries of the jurisdiction, students attending 1oca1 universities and mi 1i tary personnel and their dependents living in the community, even though they may be domiciled elsewhere. In many areas, such persons constitute a significant se ment of the population that should not be excluded from the jury box. 28

Paragraph (d) Communication Requirement Fourth is the requirement that potential jurors be able to communicate in the English language.21 Because of the his ry of misuse that accompanied 1 iteracy prerequisites for voting,@ any provision regarding knowledge of the English language must be carefully framed. Therefore, to minimize the opportunities for bias and discrimination in th jury selection process, the andard does not use the words "to write"53 or "to understand" English. 3i In addition, it is phrased so as neither to proscribe nor to require eligibility for blind individuals able to read Braille or deaf persons able to communicate through signing. The law and practice in this area are in a state of change. It is not yet possible to specify a generally applicable rule or procedure that safeguards the rights of blind or deaf individuals and accommodates their special needs, but does not disturb the trial and deliberation process. Standard 8 makes clear, however, thzt a prospective juror who cannot read, or see, or hear, may be removed

49 for cause in a particular case when that ability is essential for the fair determination of the case at issue.. Paragraph (e) Conviction of a Felony/Restoration of Civil Rights The final restriction excludes indivi als convicted of a felony who have not had their civil rights restorfg.gg Most states currently exclude felons from serving on a jury. Many felons "might well harbor a continuing ressntment against 'the system' that punished Cthemll1f, and an equally unthinking bias in favor of the defendant on trial. Moreover, the presence on a jury of convicted felons who have not had their civil rights restored through the applicable state procedure tends to weaken respect for the judicial system. This limitation on eligibility, does not extend to a person accused of committing a crime. Although arguments similar those outlined above have been made in favor of such an exclusion, $8 automatic disqualification of individuals subject to a pending prosecution impinges on the presumption of innocence upon which the system of criminal justice is built.

SUGGESTED STEPS FOR IMPLEMENTATION 1. Review the provisions governing eligibility for jury service. 2. Initiate appropriate legislative or administrative changes if those provisions are inconsistent with the standard. 3. Interpret any subjective criteria in a manner consistent with the objective requirements of the standard-for example, a statutory requirement of ''good moral character" may be interpreted to mean no felony conviction or the restoration of civil rights following such a conviction.

RELATED STANDARUS ABA, Criminal Justice Standards 15-2.1 (c) ABA, Trial Courts 2.11 NAC,- Courts: Si lent NCCUSL, Uniform Jury Selection and Service Act Section 8(b) NCCUSL, Uniform Rules of Criminal Procedure: Silent NDAA, National Prosecution Standards 17.2(B) (1isted as Exemptions and Excusal s)

FOOTNOTES 1. See, e.q., Iowa Code Ann. $607.1 (1975); Mass. Gen. Laws Ann. ch. 34, $4 (Supp. 1972); Okla. Stat. s38-28 (Cum. Supp. 1980); R.I. Gen. Laws $9-9-23 (Cum. Supp. 1980); South Carolina Code 914-7-140 (1977).

50 2. -See Rabinowitz v. United States 366 F.2d 34, 92 (5th Cir. 1966) (Coleman, 3. concurring in part, dissenting in part). 3. Subcommittee on Improvements in Judiciary Machinery of the Senate Judiciary Comnittee, Hearinqs, Federal Jury Selection, 255 90th Cong. 1st Sess. (March 21, 1967-July 20, 196/) . Lhereinatter 4. Accord, Rabinowitz v. United States, 366 F.2d 34, 51 (5th Cir. 1966); American Bar Association, Standards Relating to the Administration of Criminal Justice: Trial by Jury, 19 (2 d Ed. Approved Draft 19/8) thereinafter cited as ABAJ; Kaufman statement in Hearings, supra note 3. 5. Accord, ABA, id. Standard 15-2.1; American Bar Association Commission, StandFds Relating to Trial Courts, Standard 2.11 [hereinafter cited as ABA ComnissionJ; I-ederaT Jury Selection and Service Act of 1968, 28 U.S.C. §7865(b)(l) [hereinafter cited as Federal Jury ' Act]; National Conference of Commissioners on Uniform State Laws, Uniform Jury Selection and Service Act, §8(b)(l) (1971) [hereinafter cited as Uniform Jury ActJ. 6. U.S. Const., Amendment XXVI. 7. H. Beaser, The Legal Status of Runaway Children 51-54 (1975). 8. J. Van Dyke, Jury Selection Procedures, Appendix A (1977); Center for Jury Studies Newsletter 1, no. 5 (Sept. 1979). 9. -Id. 10. Accord, ABA, supra note 4, at Standard 15-2.1; ABA Commission, supra note 5; Federal Jury Act, supra note 5; Uniform Jury Act, supra note 5. 11. Van Dyke, supra note 8, at 131. 12. In re Griffith, 413 U.S. 717 (1973). 13. Sugarman v. Dougall, 413 U.S. 634 (1973); People v. Rodriguez, 35 Cal . App. 3d 900, 11 1 Cal . Rptr. 238 (1973). 14. About a quarter of the states still require a minimum period of residence in order to be eligible to serve on a jury. In 1977, such requirements ranged from 38 days to two years. Van Dyke, supra note 8, at 1. 15. United States House of Representatives, "Report on the Jury Selection and Service Act of 1968 (P.L. 90-274)," in United States Congressional and Administrative News, 90th Congress, 2d Session, 1796 (1968). 16. Van Dyke, supra note 8, at 72; -see F1. Solomon, Management of the Jury System, 11 (1975). 17. Dunn v. Blumstein, 405 U.S. 330 (1972).

51 18. Shapiro v. Thompson, 394 U.S. 618 (1969); Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974). 19. Van Dyke, supra note 8, at 72. 20. See Peters v. Kiff, 407 U.S. 493, 503-504 (1972). It should be noted that- implementation of the term of service recomnended in Standard 6 and the excuse and deferral policies set forth in Standard 8 should substantially alleviate scheduling problems due to student vacations and military duty requirements. 21. The Task Force recognizes that the English language requirement would not apply in Puerto Rico, where the legal language is Spanish. 22. Van Dyke, supra note 8, at 132. 23. Federal Jury Act, supra note 5. 24. Federal Jury Act, supra note 5; Uniform Jury Act, supra note 5. 25. See Federal Jury Act, supra note 5. Restoration of civil rights refers to the process for reinstating those rights and privileges automatically lost by an individual upon conviction of a felony, such as the right to vote or to hold public office. See, e.g., Arizona Rules of Criminal Procedure 29. 26. Van Dyke, supra note 8, at Appendix C. 27. Rubio v. Superior Court of San Joaquin, 24 Cal. 3d 93, 593 P.2d 595, 154 Cal. Rptr. 734 (1979). 28. ABA, supra note 4, at Standard 15-2.1; ABA Commission, supra note 5; Federal Jury Act, supra note 5.

.. 5 BIBLIOGRAPHY EL IGI BI L ITY

American Bar Association Standards on the Administration of Criminal Justice: Trial by Jury 15-2.1 (2d Ed. Approved Draft). Chicago: American Bar Association, 1978. Beaser, H. The Legal Status of Runaway Children. Washington, D.C.: Office of Youth Development, 1975: 51-54. Carpenter, J.T. "Report to the Section on Practice and Procedure on Passage of the Juror Qualification and Selection Bill (Act. No. 594, Regular Session, 1978) .'I Alabama Lawyer 39 (1978): 331-338. Center for Jury Studies. Methodoloqy Manual for Jury Systems. McLean, VA: Center for Jury Studies, 1980. Flango, E. llWould Jurors Do a Better Job if They Could Take Notes?" Judicature 63, No. 9 (1980): 436-443.

Kasunic, DIE. "One Big Idea for Small Courts," Judges' Journal 18 (1979): 44-49.

"List Coverage and Yields." Center for Jury Studies Newsletter 3, No. 2 (1981): 2.

McKusick, V. and D. Boxer. Ylniform Jury Selection and Service Act." Harvard Journal of Leqislation 8 (1971): 280-309.

..-- . National Conference of Metropolitan Courts. Final Report on the 'ury d Admi n istrati on Project, 197 3 . National District Attorneys Association. National Prosecution Standards 17.2. Chicago: National District Attorneys Association, 1977. "New Jury Administration Legis1ation." Pennsylvania Judiciary -News 3, No. 9 (September 1980); 1,3. "One-Step Summoning.' Center for Jury Studies Newsletter 1, No, 2 (1979): 3. - Pabst, W.R. Jr., et al. "The hyth of the Unwilling Juror.Il Judicature 60 '11976): 164-171. Richest, J. P. "A New Verdict on Juror Willingnessll. Judicature 60 (1977): 497-501. Simon, R.J. The Jury: Its Role in American Society. Lexington, Mass.: Lexington Books, 1980. Solomon, M. Management of the Jury System. Chicago: American Bar Association, 19/5. "State Programs Underway.Il Center for Jury Studies Newsletter 6, No. 1 (7979): 7-8. United States House of Representatives. "Report on the Jury Selection and Service Act of 1968 (P.O. 90-274)1'. United States and Administrative News. 90th Congress, ?d S Vanderbilt, A. Minimum Standards of Judicial Administration. Law Center of New York University, 1949. Van .

Standard 5: TERM OF AND AVAILABILITY FOR JURY SERVICE THE TIME THAT PERSONS ARE CALLED UPON TO PERFORM JURY SERVICE AND TO BE AVAILABLE THEREFOR, SHOULD BE THE SHORTEST PERIOD CONSISTENT WITH THE

NEEDS OF JUSTICE. (a) A TERM OF SERVICE OF ONE DAY OR THE COMPLETION OF ONE TRIAL, WHICHEVER IS LONGER, IS RECOMMENDED. HOWEVER, A TERM OF ONE WEEK OR THE COMPLETION OF ONE TRIAL, WHICHEVER IS LONGER, IS ACCEPTABLE. (b) PERSONS SHOULD NOT BE REQUIRED TO MAINTAIN A STATUS OF AVAILABILITY

FGR JURY SERVICE FOR LONGER THAN TWO WEEKS EXCEPT-IN AREAS WITH FEW'

JURY TRIALS LJHEN IT MAY BE APPROPRIATE FOR PERSONS TO BE AVAILABLE FOR SERVICE OVER A LONGER PERIOD OF TIME.

COMMENTARY Paraqraph (a) Term of Jury Service

This standard recommends that jurisdictions reduce to the shortest extent possible both the amount of time during which persons are required to remain available for jury duty and the time spent at the courthouse. The standard specifically encourages the adoption of a one-day or one-trial jury term. Under the one-day or one-trial term, an individual's term of service is completed upon serving either for the duration of orte trial or for one day if he or she is not selected to serve as a juror. Those individuals who either are challenged at voir dire or are not selected for a voir dire panel are dismissed at the end of their first day. When the voir dire process for a particular trial cannot be completed in one day, the members of the panel who have not been removed for cause may be required to return on succeeding days until the jury has been selected. Although a few courts excuse prospective jurors after one voir dire, most courts bring them back to the jury pool and reuse them on other panels for the remainder of the day. At least thirty-nine jurisdictions have adopted a one-day or one-trial term. In jurisdictions where one day or one trial is not feasible, the standard indicates that reducing the term of actual service to one week is acceptable. It is intended that under a one week term, jurors would complete the last trial assigned even if the trial continues past the one-week term.

55 The length of the jury term has a substantial impact on several aspects, of jury management. host important is the direct correlation between the length of term and the representativeness and inclusiveness of th,e jury panel. The standard recognizes that reducing the term of jury,service is essential to achieving a representative and inclusive jury! Long terms of service disrupt domestic schedules, personal plans, and business activities thereby discouraging many prospective jurors from want4ng to serve. The economic hardship and extreme inconvenience created by lengthy terms lead to an increase in the number of requests to be excused from jury duty. Imposition of a strict excuse policy is impractical under such circumstances, and the resulting high excusal rate reduces the potential yield of jurors and diminishes the representativeness and inclusiveness of the jury panel. A shortened term would minimize or practically eliminate the inconvenience and hardship presented by jucy duty and thus would justify: the application of a strict excuse policy. Restricting excuses to only those cases in which a continuing hardship can be demonstrated has the effe t of increasing the number of citizens available for jury servi~e.~As a result of this increase, the jury panel becomes more representative and inclusive of the community from which it is drawn. A one-day or one-trial term would further increase inclusiveness and representativeness because is requires a substantially greater number of citizens to serve as jurors.

In addition to diminishing representativeness and inclusiveness, lengthy terms of jury service when combined with inefficient use of prospective jurors, lead to frustration on the part of jurors and dissatisfaction with the jury system in particular and with the judicial system in general. A shortened jury term encourages more efficient use of jurors, which in turn reduces the amount of time they spend waiting to be used. This recognizes that citizens are making an important contribution and that their time is valuable. As a result, juror dissatisfaction is minimized and the willingness of individuals to serve when summoned is increased. Furthermore, improving individuals' attitudes toward jury service and the judicial system has the corollary effect of reducing requests for excuse from service and thereby increasing representativeness and inclusiveness of jury panel s. ', It should be emphasized that a reduction in the ter of service can increase jury costs because of the additional number of individuals who must be summoned. By adopting efficient management techniques, however, these additional cos s can be limited and overall jury system costs may actually be reduced.b Specifically, courts are urged to use computerized selection of names and preparation of summonses and to combissftheir qualifying and summoning process, and to use first class mail in order to offset the cost of sumnoning more individual^.^ Also, because summoning an excessive number of prospective jurors can result in a waste of jurors' time and the courts' money, courts should establish an accurate assessment of the pattern of demand for jury trials in or er to predict accurately the number of jurors needed for court each day. 8 Courts are encouraged to institute telephone call-in systems to inform

56 jurors whetber they are needed, and if so, when they should report to the courthouse. This procedure results in substantial savings to the court in juror fees, assists in ensuring that the court has an adequate number of jurors on hand, and utilizes the prospective jurors' time more efficiently by permitting them to continue their routine schedules when their presence is not required for jury serviceO7 Finally, courts are urged to reuse challenged juror in successive voir dires in order to achieve an efficient jury pool,a and to limit the compensation which persons reporting to the courthouse receive for the first day of jury service to a nominal amount in recognition of their out-of-pocket expenses (a reasonable fee should be paid for each succeeding day they rep~rt).~Any added costs that remain after these steps have been taken are more than balanced by the increase in the representativeness of the jury pool and the significant decrease of the burden imposed on individuals called for jury service. Paragraph (b) Availability for Service

It is recognized that a jury term requiring an individual to remain available for service for several weeks or months may cause considerable hardship and inconvenience even though the time actually served may be fairly short. Havilsg to remain available for a protracted period of time creates uncertainty and disrupts business and personal affairs. The standard attempts to alleviate such problems by specifically recommending that jurisdictions set a maximum of two weeks on the time persons may be required to remain available for jury service. It acknowledges, however, that an exception to this maximum may be necessary in rural areas with few jury trials. Even when this exception applies, it is intended that actual service should nevertheless be limited to, at most, a term of one week or the completion of the last trial assigned during that week.

SUGGESTED STEPS FOR IMPLEMENTATION 1. Review existing statutes and/or court rules regarding the term of jury service.

2. Initiate appropriate statutory and administrative changes if those provisions are inconsistent with the standard. 3. Implement appropriate management techniques to accompany a reduced tera of service such as but not limited to the following:

(i) Computerize selection of names from source list. (ii) Combine qual ification and summoning process. (iii) Computerize preparation of the summons. (iv) Use first class mail. (v) Establish monitoring procedures in order to accurately predict juror demand. (vi) Instal1 telephone call-in systems. (vii) Establish procedures to monitor juror use. 4. Provide a clear explanation of the term of service and period of availability in the initial notice sent to prospective jurors and in the orientation presentation.

RELATED STANDARDS ABA, Criminal Justice Standards: Si lent ABU, Trial Courts 2.63 NAC, Courts: Silent NCCUSL, Uniform Jury Selection and Service Act Section 15 NCCSUL, Uniform Rules of Criminal Procedure: Silent NDAA, National Prosecution Standards: Si lent

FOOTlvOTES 1. Courts in Wayne County (Detroit), Michigan, reported that after adoption of one-day/one-trial term excuses dropped to only 1.3 ercent of those called. J. Canham, "One-Day One-Trial,' 16 Judges Journa Y 34, 37 (1977) [hereinafter cited as Canham). 2. Statistics from A1 legheny County (Pittsburgh), Pennsylvania revealed that during the first year of the one-day/one-trial term more than three times as many individuals experienced jury duty than in the previous year. "One Oay/One-Trial," Center for Jury Studies Newsletter 2, No. 1 (1978) . 3. See Center for Jury Studies, Methodoloqy Manual for Jury Systems 6-5 (198mhereinafter cited as Methodology Manual 3. 4. Methodology Manual, id:, at 6-5 to 6-6; K. Carlson, A. Holper, & D. Whitcomb, An Exe Service: The Misleading Marketing of 'Modern Jury Management Systems, 45 M-issouri taw Review 23s (19m. 5. Methodology Manual, supra note 3, at 6-5. 6. -Id . 7. Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, A Guide to Juror Usage, 6-7 (1974). 8. "One-Day/One-Trial,81 Center for Jury Studies Newsletter 2, No. 1, (1979) . BIBLIOGRAPHY TERN OF SERVICE

Canham, J.M. "One Day One Trial." Judges' Journal 16 (1977): 34-51. Carlson, K., -et al. One-Day/One-Trial Jury System. Washington, D.C.: Department of Justice, 1977. Center for Jury Studies, Methodology Manual for Jury Systems. McLean, Va.: Center for Jury Studies, 1980.

Graham, h.H. and R.S. Pope, "One Day/One Trial or a One Week Term of Jury Service: The Misleading Marketing of Modern Jury Management Systems." Missouri Law Review 45 (1980): 255-280.

Kant, W.C. "Jury Waiting Time Can Be Eliminated.Il Judicature 55 (1971): 116-117.

Kasunic, D.E. "One Big Idea for Small Courts.Il Judges Journal 18 (1979): 44-49. Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice. A Guide to Juror Usaqe. Washington, D.C.: U.S. Government Printing Office, 1974.

"One-Day/One-Trial .I' Center for Jury Studies Newsletter 2, No. 1 (January 1979) 2-4. Van Dyke, 3. Jury Selection Procedures: Our Uncertain Comitment to Representative Panels. Cambridge, Mass.: Ballinger Publishing co., 1977. Zeisel, H. ttForeword." Law and Contemporary Problems 43 No. 4 (1980). See also bibliography in Standards 10: Administration of Jury Operations and Standard 13: Juror Use. Standard 6: EXEMPTION, EXCUSE, AND DEFERRAL (a) ALL AUTOMATIC EXCUSES OR EXEMPTIONS FROM JURY SERVICE SHOULD BE

ELIMINATED.

(b) ELIGIBLE PERSOEvS WHO ARE SUMMONED MAY BE EXCUSED FROM JURY SERVICE

ONLY IF:

(i) THEIR ABILITY TO RECEIVE AND EVALUATE INFORMTION IS SO

IMPAIRED THAT THEY ARE UNABLE TO PERFORM THEIR DUTIES AS

JURORS AND THEY ARE EXCUSED FOR THIS REASON BY A JUDGE; OR

(ii) THEY REQUEST TO BE EXCUSED BECAUSE THEIR SERVICE WOULD BE A CONTINUING HARDSHIP TO THEM OR TO MEMBERS OF THE PUBLIC, OR THEY HAVE BEEN CALLED FOR JURY SERVICE DURING THE TWO YEARS

PRECEDING THEIR SUMMONS, AND THEY ARE EXCUSED BY A JUDGE OR

DULY AUTHORIZED COURT OFFICIAL. (c) DEFERRALS OF JURY SERVICE FOR REASONABLY SHORT PERIODS OF TIME MAY BE PERMITTED BY A JUDGE OR DULY AUTHORIZED COURT OFFICIAL.

(d) REQUESTS FOR EXCUSES AND DEFERRALS AND THEIR DISPOSITION SHOULD BE

WRITTEN OR OTHERWISE MADE OF RECORD. SPECIFIC UNIFORM GUIDELINES FOR DETERMINING SUCH REQUESTS SHOULD BE ADOPTED BY THE COURT.

COMMENTARY .- Generally -

The United States Supreme Court has held representative cross-section of a community is of the sixth amendment guaranty of trial by an exclusion of a substantial portion of the comm 3-t:=?fom Jury service through excuses or exemptions seriously a1ters the representativeness and inclusiveness of a jury panel.2 Representative juries will be attained only if the source list is representative and if as many people as possible on that list actually appear on jury panels and are

60 chosen to sit as jurors. This standard acknowledges that a drastic reduction in the number of individuals relieved from jury duty through excuses and exemptions is mandatory if the goal of representativeness and inclusiveness is to be achieved. It should be noted that the standard is intended to address excuses from and deferrals of jury service at the jury pool stage only. Requests to be excused from a particular jury because of the possibility of a lengthy trial should be treated as challenges for cause. Paragraph (a) Exemptions Many states exempt individuals who fall into certain occupational categories or, upon request, automatically excuse other claskes of individuals, such as the elderly or mothers caring for young children, In many areas, this practice has resulted in the absence of a significant portion of the community from the pool of prospective jurors. The absexe of such individuals is especially noteworthy in those states that automatically eliminate from jury lists the names of those persons who fall into exempt or excused categories despite the fact that exemptions and excuses generally are considered to be voluntary in natureg3 Even when names are not systematically eliminated, the mere availability of an exemption or automatic excuse contributes substantially to diminishing representativeness because of the likelihood that many people w'll take advantage of avoiding jury service if given the opportunity. 1 The difficulty of securing a representative cross section of the community is further increased where certain persons, such as physicians, attorneys, government service workers, accountants, and clergymen, are exempted from jury service.5 These broad categorical exceptions not only reduce the inclusiveness and representativeness of a jury panel, but also place a disproportionate burden on those who are not exempt. Recognizing these effects, the United States Supreme Court has struck down jury selection practices that have the consequence of systematical1 y exc 1 ud i ng ''cogn i zab 1 e groups. 'I6 Relying upon the principle that jury service is an obligation and privilege of citizenship from which no eligible citizen should be exempt, the standard recommends that automatic excuses or statutory group exemptions be eliminateda7 Deferral of jury service accommodates the public-necessity rationale upon which most exemptions and automatic excises were originally premised, while enabling a broader spectrum of the comnunity to serve as jurors. Considerable support exists for this recommendation. A total of twenty states and a few localities have eliminated all group exemptions from jury duty. Several other states provide for only a few exemptions such as for members of the legal profession or the armed services.8

61 Paragraph (b) Excuses It is contemplated that adoption of a strict excuse policy will reduce the number of unnecessary excuses granted and thus prevent the representativeness and inclusiveness of the jury from being diminished at the excuse stage of the jury selection process. Consequently, the standard recommends that individuals be permitted to be excused in only two instances. The first is when an individual is so mentally ill or mentally retarded that he or she is unable tc receive and assess the evidence and arguments and participate in the deliberation with other jury members. The grounds for the excuse are phrased in functional terms rather than relying on broad diagnostic labels, since it is the ef ect of the disability rather than its cause which is significant.% The court may release an individual from jury duty under paragraph (b)(i) on its own motion. To require the mentally disabled indivddual to request an excuse makes little sense. Because of the discretion and sensitivity required and to prevent abuse, the decision to grant or deny an excuse on this basis should be made by a judge rather than administrative personnel. .I The second instance in which an excuse may be granted is when an individual requests to be released from jury service and demonstrates that he or she served as a member of a venire within the past 24 months, or that jury service would cause genuine personal hardship either to the individual requesting the excuse or to members of the public whom that individual serves. The prior-service provision is to spread jury service more equitably over the population of eligible persons. The provision for hardship excuses is intended to provide courts with the necessary f lex4 bi 1 i ty to accommodate the exceptional cases in which a person is unable to serve for the limited term specified in Standard 5 because of severe, chronic physical illness or incapacity, or essential military or other public duties. The experience of jurisdictions that have reduced their term of service and adopted a stringent excuse policy indicates that most current requests for a hardship excuse can be handled by scheduling the individual's jury service to a more convenient date and by fairly compensating citizens serving on jury duty.10 Economic hardship is not included as a ground for excuse because of the shortened term of service and the liberal deferral policy recommended by these standards. However, members of jury panels may be removed for cause when the anticipated length of a trial would create such an economic hardship tha they would be unable to participate fully in the proceedings. tl

Paragraph (c) Deferral - As indicated, the standard recommends that all requests for an excuse that do not meet the above criteria should be accommodated by deferring an individual's jury service. In such instances, jury service should be rescheduled imnediately for a specific date when the individual will be able to serve. Many courts do not permit any deferral of jury service. Prospective jurors are given a choice

62 between serving or being excused altogether. Such rigidity may create additional hardship and resentment for those citizens wishing to serve, and results in diminished representativeness when citizens choose not to serve. Permitting jury service to be deferred and rescheduled at a later date increases the overall representativeness and inclusiveness of the jury pool while decreasing the hardship of jury service. In order to facilitate the attainment of these goals, procedures for obtaining a deferment should be relatively simple and informal. Care must be taken, however, to ensure that the standard's purpose of increasing representativeness and inclusiveness is not defeated through abuse of the deferment policy. Paragraph (d) Procedural Safeguards To avert charges of arbitrary or capricious action, the standard specifies that requests for an excuse should be made either in writing or, ifmade orally, reduced to writing for the court's records. Such records are essential for operating a fair and efficient deferral program nd for monitoring the effect of the excuse and deferral process.f2 Requests should be considered on a case-by-case basis by a judge or duly authorized court official to ensure that sufficient justification for excuse exists. Recognizing the need for consistency, the standard requires the creation and adoption of a specific and uniform written policy detailing what constitutes hardship, specifying the manner in which the hardship is to be demonstrated, and imposing limitations on the number of deferments allowed per individual. Few courts have uniform guidelines with specific criteria to govern the grant'ng of excuses. As a result, many permit excuses on an ad hoc basis. The uniform application of a strict, written policy will preclude the granting of arbitrary and inequitable excuses from jury service. It will also provide a safeguard against the granting of excessive excuses, thereby protecting the representative character of the jury pool. To further enhance consistency, one individual should have the responsibility for administering such a policy.

SUGGESTED STEPS FOR IMPLEMENTATION 1. Review existing statutes and policies regards'ng exemptions, excuses, and deferments. 2. Initiate appropriate legislative or administrative changes if those provisions are inconsistent with the standard. 3. Establish a written excuse policy with guidelines enumerating the specific criteria for granting excuses and deferments, the type of proof required and the number of deferments allowed per individual.

4. Require that requests for excusals and deferments be made in writing, or reduced to writing promptly if handled by telephone.

63 5. Review current compensation policy and initiate appropriate changes if inconsistent with Standard 15. 6, Take appropriate steps to reduce the term of jury service to the shortest possible length of time. (See Standard 4.) 7. Handle requests for deferral prior to the reporting date in order to reduce administrative workload during juror enrollment and to know the approximate number of jurors expected to report. 8. Reschedule jury service for a specific date and send reminders to those individuals whose service has been postponed for more than a month. 90 Monitor the excuse and deferral procedures to make certain that they are conducted fairly and efficiently.

RELATED STANDARDS ABA, Criminal Justice standards 15-2.l(c),(d) ABA, Trial Courts 2.62 NAC, Courts: Silent NCCUSL, Uniform Jury Selection and Service Act Section 10, 11 NCCUSL, Uniform Rules of Criminal Procedure: Si lent NDAA, National Prosecution Standards 17.2 (6: 3,4,5,8)

FOOTNOTES 1. Taylor ve Louisiana, 419 U.S. 522, 530 (1975). 2. The Center for Jury Studies has reported that the percentage of those excused varies from 10 to 40 percent of those sumnoned to jury duty; the median range is 25%. Center for Jury Studies, Methodology Manual for Jury Systems 4-4 (1979) [hereinafter cited as Methodology Manual 1. 3. A. Vanderbilt, Minimum Standards of Judicial Administration 171 (1949) [hereinafter cited as Vanderbi itj. 4. J. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels lT9 (1977) Lh ereinafter cited as Van Dykej. 50 See Vanderbilt, su ra note 3, at 181; see also Van Dyke, su ra note 4, am26; see Metho&y Manual, supra nmt4-4. ("e&ions bear witness ... to the inventiveness and ingenuity of the state legislatures and to the pressures exerted by the various groups that have obtained exemptions.Il); accord M. Solomon, [hereinafter cited as Solomon]. Management of the Jury System 12 1975).

64 6. See Duren v. Missouri, 439 U.S. 357 (1979); Taylor v. Louisiana, 419 U.S. 522 (1975). 7. -See National Conference of Conmissioners on Uniform State Laws, Uniform Jury Selection and Service Act, Commentary to Section 10 (1971). 8. -See 3 Center for Jury Studies Newsletter, 7 (March, 1981). 9. This functional approach is consistent with recent legislation and recommendations. See, e.g. The Developmental Disabilities and Bill of Rights Act, 42 U.S.C. Section 6001(7) (Cum. Supp. 1978); Mental Health Law Project, "Legal Issues fn State Mental Health Care: Proposals for Change," Mental Disabi 1ity Law Reporter (Special Reprint 1979); American Bar Association Commission on the Mentally Disabled, Prohibiting Discrimination Against Developmentally Disabled Persons (1978) . 10. See Solomon, supra note 5, at 20-21; see also J. Canham, "One Day/One Triav 16 Judges' Journal 34 (1977); seexaxd 15: Juror Compensation. 11. See Standard 8: Removal From the Jury Panel for Cause. 12. See Standard 10: Jury System Administration. BIBLIOGRAPHY EXEMPTIONS, EXCUSES 81 DEFERRAL

-American Bar Association Standards on the Administration of Criminal Justice: Trial by Jury (2d ed. Approved Draft) Chicago: American Bar Association, 1978. Center for Jury Studies. Methodology Manual for Jury Systems. McLean, VA.: Center for Jury Studies, 1980. Flango, E. "Would Jurors Do a Better Job if They Could Take Notes?" Judicature 63 (1980): 436-443. Kasunic, D. "One Big Idea for Small Courts," Judges' Journal 18 (1979): 44-49. National Conference of Metropolitan Courts. Final Report on the Jury Administration Project. National District Attorneys Association. National Prosecution Standards 17.2. Chicago: National District Attorneys Association, 1977.

"New Jury Administration Legi sl at i on. I' Pennsyl vani a Judici ary -flews 3 No. 9 (September 1980): 1. Pabst, W.R., Jr., et al. "The Myth of the Unwilling Juror." Judicature 60 (1976): 164-rj?T- Richert, J.P. "A New Verdict on Juror Willingness." Judicature 60 (1977): 497-501. Solomon, M. Management of the Jury System. Chicago: American Bar Association, 1975 . "State Programs Underway." Center for Jury Studies Newsletter 6, No. 1 (January, 1979): 7-8. Vanderbilt, A. Minimum Standards of Judicial Administration. Law Center of New York University, 1949. Van Dyke, J. -Jury Selection Procedures: Our Uncertain Commitment to Representative Panels. Camb ridge, Mass.: Ballinger Publishing Co., 1977.

66 Y

Part 6: Standards Relating to Selection of a Particular Jury

Standara 7: VOIR OIHE Standara 8: REMOVAL FROM THE JURY PANEL FOR CAUSE Standard 9: PEREWTORY CHALLENGES PART B: STANDARDS RELATING TO SELECTION OF A PARTICULAR JURY Introduct i on

The three standards in this section address the procedures for selecting a jury that is able and willing to hear a case fairly and imparti a1 ly. The recomended procedures are designed to f aci 1itate selection of an unbiased juror in an efficient and fair manner and to safeguard the guarantee of representativeness without interfering with - the legitimate role of the peremptory challenge or intruding upon its .- peremptory nature. Standard 7, entitled "Voir Dire'', recommends that counsel receive basic background information regarding the panel of prospective jurors prior to voir dire. It sanctions the direct questioning of panel members by counsel, but makes it clear that the trial judge is responsible for conducting the primary voir dire . examination and for ensuring that any subsequent examination of the prqspective jurors does not exceed the limited purpose of voir dire. Standard 8 sets forth'the principles for determining when a juror should be removed for cause. It specifies that such determinations may be made either on a motion by counsel or on the judge's own initiative. Standard 9 addresses the issues surrounding peremptory chal lenges. It urges that peremptory challenges be limited to a number no larger than necessary to provide reasonable assurance of obtaining an unbiased jury, and contains explicit recommendations within the scope of current practice regarding the number of peremptory challenges that should be permitted in most cases. In addition, it strongly encourages the adoption of a "struck jury system'' under which all peremptory challenges are exercised following the completion of the voir dire examination. As noted in the commentary to these standards, several aspects of the voir dire process have been subject to intense scrutiny and criticism over the past few years. The recommendations in this section recognize voir dire as a fundamenta'l.part of the trial process, i\nd attempt to address the problems which- have been identified without altering its purpose or basic character.