There May Be More Viability – or at Least More Impact – in Your Fair Cross-Section Challenge than You Think.

May 10, 2016
By Hanging Out with Carl Gunn


  • A defendant has a constitutional and statutory right to a jury drawn from “a fair cross-section of the community” and can challenge a grand jury or trial jury if there is “systemic exclusion” of a “distinctive group” in the community from the pool the jury is drawn from.
  • The Ninth Circuit recently overruled prior case law allowing consideration of only “absolute disparity” and adopted an approach which considers “comparative disparity” as well as other forms of analysis.
  • Fair cross-section challenges may have a broad systemic impact of changing jury selection practices even if you don’t win the challenge in your particular case.



The right to a jury “drawn from a fair cross-section of the community” is recognized in both constitutional case law and the Jury Selection and Service Act.  See Taylor v. Louisiana, 419 U.S. 522, 527 (1975); 28 U.S.C. § 1861 et seq.  A defendant has standing to challenge his indictment grand jury or trial jury if the pool of jurors from which his grand jury or trial jury is drawn does not satisfy this “fair cross-section” requirement.  He must make a prima facie showing

(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

United States v. Hernandez-Estrada, 749 F.3d 1154, 1159 (9th Cir. 2014) (en banc) (quoting United States v. Miller, 771 F.2d 1219, 1228 (9th Cir. 1985) and Duren v. Missouri, 439 U.S. 357, 364 (1979)).  The burden then shifts to the government to show that “a significant state interest [is] manifestly and primarily advanced” by the juror selection method challenged.  Duren v. Missouri, 439 U.S. at 367.

Despite the theoretical right to raise such challenges, many of us, if not most, have viewed the chance of success as comparable to Don Quixote’s chance of success against windmills.  But see, e.g., Duren v. Missouri, supra; Garcia-Dorantes v. Warren, 801 F.3d 584 (6th Cir. 2015).  I offer this post to breathe a little more hope into this uphill battle.

To begin, it’s important to know there’s been a recent development in the Ninth Circuit case law on this issue that makes it easier to raise such challenges.  Until recently, the Ninth Circuit required fair cross-section challenges to rely on what the case law has labeled “absolute disparities,” meaning “the difference between the percentage of the distinctive group in the community and the percentage of that group in the jury pool,” Hernandez-Estrada, 749 F.3d at 1160 (quoting United States v. Rodriguez-Lara, 421 F.3d 932, 943 (9th Cir. 2005)).  The case law further suggested there had to be an absolute disparity of at least 7.7% – with that odd number presumably not being the exact line – for a fair cross-section challenge to succeed.  See Rodriguez-Lara, 421 F.3d at 944 n.10 (collecting cases including case in which absolute disparity of 7.7% found insufficient).  This meant that in some instances, there could never be a fair cross-section challenge, no matter how egregious and blatant the exclusion from the juror pool.  As illustrated by some examples given in the Hernandez-Estrada case:

[W]e have specifically highlighted the fact that if a minority group makes up less than 7.7% of the population in the jurisdiction in question, that group could never be underrepresented in the jury pool, even if none of its members wound up on the qualified jury wheel.  (Citation omitted.)  For example, African Americans constituted 5.2% of the population of the Southern District [of California] in 2009.  Therefore, under the absolute disparity test, there could be no successful jury challenge in the Southern District for African Americans.  As of the last census, the District of Montana did not have any minority group that exceeded 7.7% of its population.  (Footnote omitted.)

Hernandez-Estrada, 749 F.3d at 1161-62 (emphasis in original).

In part because of this, the court expanded the potential methods of analysis for a fair cross-section challenge.  Sitting en banc, the court surveyed various other methods of analysis, including (1) the “comparative disparity test,” which focuses on the absolute disparity as a percentage of the percentage of the distinctive group in the population, see Hernandez-Estrada, 749 F.3d at 1162; (2) a statistical analysis of standard deviation, which the court described as “the ‘measure of the predicted fluctuations from the expected value,’” id. at 1163 (quoting Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977)); and (3) the “disparity-of-risk test,” which “measures ‘the likelihood that the difference between a group’s representation in the jury pool and its population in the community will result in a significant risk that the jury will not fairly represent the group.’” Hernandez-Estrada, 749 F.3d at 1163 (quoting Commonwealth v. Arriaga, 781 N.E.2d 1253, 1265 (Mass. 2003)).  The court then overruled its previous holdings that only the absolute disparity test could be used and summarized the approach to be taken in future cases as follows:

After surveying the case law and alternative methods of analysis, and bearing in mind our own past criticism of our exclusive reliance on the absolute disparity test, we conclude that it is appropriate to abandon the absolute disparity approach.  Accordingly, we overrule the requirement . . . that the absolute disparity test be the exclusive analytical measure employed in fair cross-section challenges.

     However, we do not prescribe an alternative exclusive analysis to be applied in every case.  The Supreme Court has declined to specify “the method or test courts must use to measure the representation of distinctive groups in jury pools.” Berghuis [v. Smith], 559 U.S. [314,] 329 [(2010)].  We follow its lead and also decline to confine district courts to a particular analytical method.  As our discussion has illustrated, the appropriate test or tests to employ will largely depend on the particular circumstances of each case.  Instead, we hold that courts may use one or more of a variety of statistical methods to respond to the evidence presented.  Allowing courts and defendants to use a more robust set of analytical tools will ensure more accurate, and narrowly tailored, responses to individual Duren challenges, which we can then assess on a fully developed record specific to the circumstances presented.  (Footnote omitted.)

Hernandez-Estrada, 749 F.3d at 1164-65.

There’s benefits beyond the chance of winning on the issue in your particular case, moreover.  District courts can change and improve their selection criteria even if the criteria don’t rise to the level of a Sixth Amendment violation, and even litigation which ultimately fails can lead to change.  One of our former Central District DFPD’s, Craig Wilke, had precisely that sort of impact when he aggressively litigated a fair cross-section challenge to the Central District’s reliance on voter registration records in one of his post-FPD cases a couple of years back.  Though he ultimately lost the battle in his individual case, albeit under the pre-Hernandez-Estrada case law, he won the war.  Our understanding is the Central District now uses Department of Motor Vehicles records, which creates a far more representative jury pool than voter registration records.  So it’s worth litigating and exposing the effects of less broad selection criteria even if it doesn’t lead to relief in your particular case.