Resources on the Sixth Amendment right to an impartial and representative jury.
Assessment Tools Cases Statutes Reports and Studies
Law Review Articles News Articles Other Legal Sources Videos
ASSESSMENT TOOLS
The Center for Jury Studies: This tool can be used to look at state jury systems
Assessing and Achieving Jury Pool Representativeness, By Judge William Caprathe (ret.), Paula Hannaford-Agor, Stephanie McCoy Loquvam, and Shari Seidman Diamond.Judges’ Journal • Vol. 55 No. 2, 2016.
CASES
Flowers v. Mississippi, 588 U.S___(2019) (Successful challenge of racially motivated strikes by the prosecution, based on a pattern of conduct over the course of 6 trials. In Sept. 2020 the state dropped the charges against Flowers.)
Foster v. Chatman, 578 US___(2016) (Successful challenge of racially motivated strikes by the prosecution, relying on after discovered evidence of prosecution team notes)
Miller-El v. Dretke, 545 U.S. 231 (2005)
Miller-El v. Cockrell, 537 U.S. 322 (2003)
J.E.B. v. Alabama, 511 U.S. 127 (1994) (Prohibiting the exercise of peremptory strikes on the basis of gender)
Georgia v. McCollum, 505 U.S. 42 (1992) (Holding the Constitution prohibits the defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges.)
Batson v. Kentucky, 476 U.S. 79 (1986) (The exercise of racially discriminatory peremptory challenges violates the Equal Protection Clause of the 14th Amendment)
Duren v. Missouri, 439 U.S. 357, 364 (1979) (No distinctive group may be systematically excluded from jury service)
Castaneda v. Partida, 430 U. S. 482 (1977) (Addressing the underrepresentation of Mexican-Americans on grand jury panels)
Taylor v. Louisiana, 419 U.S. 522 (1975) (A jury selected from a fair cross section of the community is "an essential component" of the Sixth Amendment's impartial jury guarantee.)
Peters v. Kiff, 407 U.S. 493 (1972) ("When any large and 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 its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.”)
Glasser v. United States, 315 U. S. 60, 85-86 (1942) (The equal protection clause requires that “the jury ‘be a body truly representative of the community . . ., and not the organ of any special group or class.’")
Smith v. Texas, 311 U. S. 128 (1940) ("It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.")
STATUTES
REPORTS AND STUDIES
Inequitable and Undemocratic: A Research Brief on Jury Exclusion in Massachusetts and a Multipronged Approach to Dismantle It (Katy Naples-Mitchell and Haruka Margaret Braun, Jury Selection Working Group of the Roundtable on Racial Disparities in Massachusetts Criminal Courts, 2023)
Race and the Jury (EJI, 2021).
Batson Reform: State by State, Berkeley Law (web resource).
Rigging the jury: How each state reduces jury diversity by excluding people with criminal records (Prison Policy Initiative, February 2021).
Time to Reflect: Has the research changed regarding the importance of jury size? (Erica J. Boyce, National Center for State Courts, Center for Jury Studies, 2021).
Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors (Berkeley Law, Death Penalty Clinic, June 2020).
Motion: Prosecutors excluded black jurors in seven death-penalty cases (September 2018).
On Racial Diversity and Group Decision-Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations (Samual, R. Sommers, Journal of Personality and Social Psychology, 2006).
Report on Jury Selection Study (Barbara O’Brien & Catherine M. Grosso, December 2011).
Illegal Racial Discrimination in Jury Selection: A Continuing Legacy (Equal Justice Initiative, 2010).
LAW REVIEW ARTICLES
Offit, Anna, Benevolent Exclusion (2020). Wash. L. Rev. (2021 Forthcoming), SMU Dedman School of Law Legal Studies Research Paper No. 490.
Rose, Jasmine Gonzales, Color-Blind But Not Color-Deaf: Accent Discrimination in Jury Selection, 44 N.Y.U Rev. L. & Soc. Change 309 (2020).
Yokum, David V. and Robertson, Christopher T. and Palmer, Matt, The Inability to Self-Diagnose Bias (July 18, 2019). 96 Denver Law Review 869 (2019).
Richard L. Jolly, The New Impartial Jury Mandate, 117 MICH. L. REV. 713 (2019).
Thomas W. Frampton, The Jim Crow Jury, 71 Vanderbilt Law Review 1593 (2018).
Grosso, Catherine M. and O'Brien, Barbara, A Call to Criminal Courts: Record Rules for Batson (2017). Kentucky Law Journal, Vol. 105, 2017.
Nina W. Chernoff, No Records, No Right: Discovery & the Fair Cross-Section Guarantee, 101 Iowa L. Rev. 1719 (2016).
Cynthia Lee, A New Approach to Voir Dire on Racial Bias, 5 U.C. IRVINE L. REV. 843 (2015).
Anna Roberts, Asymmetry as Fairness: Reversing a Peremptory Trend, 92 Wash. U. L. Rev. 1503 (2015).
O'Brien, Barbara and Grosso, Catherine M., Beyond Batson's Scrutiny: A Preliminary Look at Racial Disparities in Prosecutorial Preemptory Strikes Following the Passage of the North Carolina Racial Justice Act (June 9, 2013). UC Davis Law Review, Vol. 46, 2013, MSU Legal Studies Research Paper No. 11-11.
Marder, Nancy S., "The Changing Composition of the American Jury," 125th Anniversary Materials (2013).
The Impact of Jury Race in Criminal Trials, Shamena Anwar, Patrick Bayer, and Randi Hjalmarsson, 127 Q.J. Econ. 1017,1021,1032 (2012).
Jeffrey Bellin and Junichi P. Semitsu, Widening Batson’s Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075 (2011).
Sanjay K. Chhablani*, Re-Framing the 'Fair Cross-Section' Requirement, 13 U. Pa. J. Const. L. 931 (
Jasmine B. Gonzales Rose, The Exclusion of Non-English Speaking Jurors: Remedying a Century of Denial of the Sixth Amendment in the Federal Courts of Puerto Rico, 46 HARV. C.R.-C. L. L. REv. 497, 498 (2011).
Paula Hannaford-Agor, Systematic Negligence in Jury Operations: Why the Definition of Systematic Exclusion in Fair Cross Section Claims Must Be Expanded, Drake Law Review, Vol. 59, pp. 761, 2011.
Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. (2010).
Dale Larson, Fair and Implicitly Impartial Jury: An Argument for Administering the Implicit Association Test During Voir Dire, 3 DePaul J. for Soc. Just. 139 (2010).
Multiple Effects of Racial Composition on Jury Deliberations, Samuel Sommers, J. Personality and Social Psychology, 2006, Vol. 90, No. 4, 597– 612 (2006).
Race, Diversity, and Jury Composition: Battering and Bolstering Legitimacy, Lesia Ellis and Shari Siedman Diamond, 78 Chi.-Kent L. Rev. 1033 (2003).
NEWS ARTICLES
NYCLU Lawsuit Challenges Exclusion of People with Felonies from Manhattan Jury Service, New York Civil Liberties Union, December 8, 2022.
New Colorado court rulings push back against racial bias in jury selection, By Michael Karlik, The Gazette, October 17, 2022.
Minnesota jurors must speak English — some worry that's a proxy for race in jury selection, By Tom Crann and Megan Burks / MPR News, David Mayberry, West Central Tribune, December 9, 2021.
SF welcomes pilot program that increases pay to low-income jurors, By Bay City News, San Francisco Examiner, October 13, 2021.
Next Pre-Trial Question for Jurors: Are You Vaccinated? Bloomberg Law, May 2021.
AZ Supreme Court to end peremptory challenges to potential jurors, By Paul Davenport, Associated Press, 2021.
Why is diversity so important? Read Orrick’s amicus brief on jurors and #BLM, By Alison Frankel, Reuters, August 4, 2020.
What is the Impact of Racially Diverse Juries?, By Michael Tarm, The Appeal, March 15, 2020.
As Jury Attendance Declines, Lackawanna Judges Can Nix Peremptory Challenges. Will Others Follow?, By Max Mitchell, Law.com, November 19, 2020.
Resumption of jury trials in D.C. Superior Court remains uncertain as victims, families long for justice, By Keith Alexander, The Washington Post, October 23, 2020.
California Adopts New Laws to Fight Racism in Jury Selection, By Kyle C. Barry, The Appeal, September 30, 2020.
Judge Declines to Halt State's First COVID-19 Trial After Jury Selection Challenge, By Charles Toutant, Law.com, September 28, 2020.
After 6 Murder Trials and Nearly 24 Years, Charges Dropped Against Curtis Flowers, By Nicholas Bogel-Burroughs, The New York Times, September 4, 2020.
There’s overwhelming evidence that the criminal justice system is racist. Here’s the proof., By Radley Balko, The Washington Post, June 10, 2020.
Washington Supreme Court is First in Nation to Adopt Rule to Reduce Implicit Racial Bias in Jury Selection, ACLU, April 9, 2018.
Something has gone wrong with jury selection in Mississippi, and the Fifth Circuit is to blame, By By Ian Millhiser, Thinkprogress, April 5, 2018.
The truth about the US jury system, By David Anderson and Jessica Orwig, Business Insider, February 27, 2018.
This is How Prosecutors (Still) Keep Black People Off Juries, By Michael Mechanic, Mother Jones, November 5, 2015.
Exclusion of Blacks From Juries Raises Renewed Scrutiny, By Adam Liptak, The New York Times, August 16, 2015.
Black jurors more likely to be struck from Caddo juries, By Alexandria Burris, The Shreveport Times, August 17, 2015.
Why Is It So Easy for Prosecutors to Strike Black Jurors?, By Gilad Edelman, The New Yorker, June 5, 2015.
OTHER LEGAL SOURCES
Washington General Rule 37 (In 2018, Washington’s Supreme Court adopted General Rule 37, which designates a list of reasons for a peremptory strike that judges must treat as presumptively invalid because they have been “associated with improper discrimination in jury selection.")
VIDEOS, WEBINARS, PODCASTS
Unconscious Bias
This video is used with the express permission of the United States District Court for the Western District of Washington.
The video was created by a committee of judges and attorneys and will be presented to jurors in every case with the intent of highlighting and combating the problems presented by unconscious bias. (March 2017).
Patrick Bayer on Impact of Race on Juries in Two Florida Counties
Juries formed from all-white jury pools in Florida convicted black defendants 16 percent more often than white defendants, a gap that was nearly eliminated when at least one member of the jury pool was black, according to a Duke University-led study. (April 2012).
The big problem with how we pick juries
Juries: Last Week Tonight with John Oliver (HBO)
(warning: explicit language)
John Oliver takes a look at why people of color are routinely excluded from becoming jurors, who their absence impacts, and what we can do to create a fairer system.
Illegal Racial Discrimination in Jury Selection
Equal Justice Initiative video on the origins of racial discrimination in juries.
Twenty Million Angry Men: A Conversation about the Importance of Including People with Felony Convictions in Our Jury System
Offered by the Harvard Radcliffe Institute in collaboration with the Institute to End Mass Incarceration at Harvard Law School, this program explores questions of jury service, civic participation in the criminal legal system, and the importance of such participation by people with prior convictions. (June 2021)
More Perfect Podcast
"At the trial of James Batson in 1982, the prosecution eliminated all the black jurors from the jury pool. Batson objected, setting off a complicated discussion about jury selection that would make its way all the way up to the Supreme Court. On this episode of More Perfect, the Supreme Court ruling that was supposed to prevent race-based jury selection, but may have only made the problem worse." For more information, click here.