Jury Selection in the Weeds: Whither the Democratic Shore?

This Article reports on four federal jury challenges in which the trial judge or defendants retained the author to provide research on jury selection plans. The research shows a persistent and substantial loss of representation for African Americans and Hispanics on federal juries, even though no intentional discrimination took place. Problems with undeliverable jury summonses, as well as failure to respond to summonses, were the main causes of departures from the ideal of cross-sectional jury selection. However, a cramped understanding of what it takes for a defendant to prove that minority jurors were systematically excluded, as required by Duren v. Missouri, kept three of the four judges in our challenges from responding to the problems.

This Article argues for a legal change in the Duren test so as to enable federal courts to construct representative jury wheels.