Race in the Jury Box: Affirmative Action in Jury Selection

Chapter 5

125 Chapter 5 THE SIXTH AMENDMENT AND THE RACIALLY MIXED JURY A ffirmative action in jury selection is unlike previous efforts that deliberately limited opportunities for blacks, women, and other racial and ethnic minorities for jury service. Today’s courts are attempting to establish racial and gender ratios, to set varying equilibriums, in composing juries—to explicitly increase minority representation in jury pools, on panels and venires, and even in jury boxes that approximates or sometimes surpasses their proportion in the local community. Racially diverse and balanced juries nonetheless have a checkered history. Despite their slowly growing recognition today, the nation’s founding fathers did not share a similar vision concerning racial diversity or an equitable balance of jurors by race, though they did consider the guarantee of an independent and impartial jury to be a fundamental right (Meyer 1994, 256). In the drafting of the Constitution in 1787, for instance, these legislators provided for the guarantee of trial by jury for all crimes, except impeachment (Van Dyke 1977, 7). Today this guarantee is extended by the Sixth Amendment of the Bill of Rights which provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. The Sixth Amendment ideally envisions the jury as a microcosm of the community, providing the accused the guarantee of trial by an unbiased jury. This ideal of an impartial decision-making body to make legally binding decisions is nonetheless the reference point against which inequitable methods for selecting jurors have been rationalized and legitimized. Yet, in order to fully understand the significance of the Sixth Amendment, its effects on the possibility for the creation of a racially mixed jury, and the legality and practicality of applying affirmative action in jury selection, the following concepts need to be 126 RACE IN THE JURY BOX clearly defined and examined: (1) impartiality; (2) a jury of one’s peers; and (3) a fair cross section of the community. These three concepts overlap in many respects and are closely entwined with one another. At the same time, they are categorically and diametrically opposed to each other (Massaro 1986, 542). For a “jury of one’s peers” may neither necessarily represent a fair cross section of the local community nor be impartial. Similarly, an impartial jury may not include “peers,” or may not be representative of the general populace in the jurisdiction. As a jury in highly sensitive and publicized trials is often exposed to some prejudicial materials, though such a jury could represent a fair cross section of the community, the members may not be “impartial,” and the defendant may thus be deprived of receiving a fair trial (Abramson 1994, 17–18). Though all three terms represent important concepts in understanding the value and importance of the Sixth Amendment for the impanelment of criminal juries and the administration of a criminal jury trial, few studies have examined the implications of these constitutional concepts and the feasibility of applying affirmative action in jury selection. Past studies have also failed to critically evaluate the legality and applicability of affirmative mechanisms for creating racially diverse juries. And little research has assessed whether or not such raceconscious , affirmative methods may do violence to the constitutional ideals of a fair trial and an impartial jury in ensuring a racially heterogeneous jury. To fill in the missing spaces of the literature, we examine these three constitutional concepts derived from the Sixth Amendment, assessing how these concepts are closely entwined with affirmative requirements to ensure a racially diverse jury. In doing so, this chapter explores the essential balancing of these concepts in composing a racially mixed jury and conducting a fair trial. IMPARTIALITY The Sixth Amendment explicitly guarantees the right to an “impartial jury” in criminal cases. One legal scholar contends that the guarantee of trial “by an impartial jury” may be the most important constitutional standard governing a fair trial (Van Dyke 1977, 45–46). While close attention was given to the right to a jury trial at the time the Constitution was drafted, there...