Lead Opinion
This case presents the question whether defendant was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community. A fair-cross-section claim under the Sixth Amendment requires a defendant to make a prima facie case as set forth by the United States Supreme Court in Duren v Missouri.
(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*582 the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.[2]
The Court of Appeals concluded that defendant had satisfied the three Duren prongs, establishing a violation of his right to an impartial jury drawn from a fair cross section of the community, and granted defendant a new trial. We conclude that the Court of Appeals erred because defendant failed to show under the second prong that the representation of African-Americans in venires from which juries were selected was not fair and reasonable in relation to the number of African-Americans in the community. The Court of Appeals erred in evaluating the second prong in two significant ways.
First, the Court of Appeals wrongly relied on misleading representation data by considering the representation of African-Americans only in defendant’s venire when addressing whether representation was fair and reasonable. Duren explicitly requires courts to consider the representation of a distinct group in venires. The use of this inadequate sample from only defendant’s venire caused the tests evaluating the degree of any underrepresentation to produce skewed and exaggerated results.
Second, the Court of Appeals misapplied our decision in People v Smith.
We hold that when applying all the relevant tests for evaluating the representation data, a court must examine the composition of jury pools or venires over time using the most reliable data available to determine whether representation of a distinct group is fair and reasonable.
A jury convicted defendant of first-degree criminal sexual conduct, MCL 750.520b(l)(e), armed robbery, MCL 750.529, and possession of marijuana, MCL 333.7403(2)(d). The victim testified that when she attempted to buy crack cocaine from defendant, he put a gun to her head and demanded her money. He then ordered her to perform oral sex on him, taking her car keys and telling her that he would not let her leave until she did so. When the police apprehended defendant, he had marijuana in his possession.
After the jury was selected, but before it was sworn, defendant made a timely objection to the racial composition of his jury venire. The trial court noted that it observed one African-American and one Latino in defendant’s 45-person venire, but decided to reserve its ruling on the objection until a hearing the following day.
At the hearing, the jury clerk testified in regard to the procedure for composing jury pools and venires. According to the jury clerk, the Secretary of State provides the court a list of all the residents of Kent County who are at least 18 years of age and have a valid driver’s license or valid state identification. From that list, a computer program randomly selects residents to be sent jury questionnaires. The program then randomly selects jurors to be summoned using the names of those who responded to the jury questionnaire and had not been disqualified or opted out of jury service because of age.
Defendant, relying on the results of the voluntary surveys, argued that the disparity of African-Americans appearing for jury duty compared to the African-American population of the county showed that the current jury-selection method did not include a fair cross section of the community. The trial court ultimately denied defendant’s challenge to his venire, ruling that because the jury-selection system was race neutral, the underrepresentation of African-Americans was a function of the voluntary failure of those individuals to participate.
Regarding the third prong, the prosecution admitted that the jury-selection process disproportionately selected jurors from certain zip codes.
On remand, the trial court
The trial court found that Kent County, in an effort to save money spent on software fees, switched in April 2001 from using a vendor’s software for summoning jurors to software developed by its information technology department. Rather than drawing from the entire database
For the week that defendant’s jury was selected, the court summoned 293 people for jury service. The court specifically summoned 183 of the 293 for January 28, 2002, when defendant’s jury was picked. Of the 183 people summoned, 132 appeared and 45 of them were randomly placed in defendant’s venire. As noted, the court used voluntary surveys to identify the gender and race of those appearing for jury duty. All 132 potential jurors who appeared on January 28 responded to the voluntary survey, with one individual specifying African-American and one individual specifying multiracial.
Two statistical experts testified at the hearings. First, Dr. Chidi Chidi testified as a statistical expert for defendant. He analyzed the voluntary surveys that potential jurors who appeared completed from 2001 to 2004. Relying on the results of the voluntary surveys, Dr. Chidi concluded that the standard-deviation and comparative-
Given its disapproval of Dr. Chidi’s testimony, and pursuant to MRE 706,
From court records, Dr. Stephenson identified the number of jurors summoned from each zip code for each month from January 2002 through March 2002. Dr. Stephenson then used those records and the census data for racial population in each zip code to estimate that, as a result of the zip-code bias, only 163 of the 3,898 summonses (4.17 percent) sent out from January through March 2002 went to African-Americans. If 8.25 percent of the summonses sent out during that period had gone to African-Americans, then 322 African-Americans would have been sent them.
Considering only defendant’s venire, Dr. Stephenson calculated that the absolute disparity
Dr. Stephenson also considered the standard-deviation test,
Examining the larger three-month sample, Dr. Stephenson performed further calculations using the binomial results to find that there was essentially “no chance” that the reduced numbers of African-Americans in jury pools between January and March 2002 occurred as a result of random chance. Further, a venire selected during the time the zip-code problem occurred was approximately four times more likely to contain no more than one African-American than if this problem had not been present. He concluded that if the estimates matched actual practice, “a systematic bias did exist in the selection of individuals summoned for jury duly... [that] inevitably led to the under representation” of African-Americans in the jury pools from January through March 2002.
In a written opinion, the trial court ruled that defendant was not entitled to a new trial because he had failed to satisfy Duren’’s second and third prongs. Addressing whether the representation of African-Americans was fair and reasonable, the trial court reasoned that there was no proof of actual underrepresentation in the group of individuals that the computer program identified and to whom jury questionnaires were sent because the Secretary of State database does not identify race.
The trial court also concluded that there was no systematic exclusion under Duren’s third prong because there was no evidence that the defective computer setting had any bias. Rather, it simply randomly reduced the number of individuals whom jurors were selected from. Therefore, the end result — that these individuals were taken disproportionately from certain zip codes — was not inherent in the court’s jury-selection processes.
On defendant’s second appeal, the Court of Appeals concluded in an authored opinion that defendant had established a violation of the Sixth Amendment’s fair-cross-section requirement and reversed and remanded the case for a new trial.
Next, the panel addressed the comparative-disparity test and acknowledged the difficulties in applying this test to a group that makes up a small percentage of the population.
Addressing the third prong from Duren, the panel held that the underrepresentation was caused by the systematic exclusion of African-Americans.
The prosecution sought leave to appeal in this Court, which we granted.
Whether defendant was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community is a constitutional question that we review de novo.
III. ANALYSIS
A. FAIR-CROSS-SECTION JURISPRUDENCE
The Sixth Amendment of the United States Constitution guarantees a defendant the right to be tried by an impartial jury drawn from a fair cross section of the community.
In Duren, the United States Supreme Court set forth
(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.[48]
The defendant in Duren successfully argued that the underrepresentation of women in jury venires violated the fair-cross-section requirement. Regarding the first prong, there was no dispute that women were a distinct group in the community.
B. APPLICATION OF THE DUREN TEST
1. WHETHER A DISTINCT GROUP IS ALLEGED TO HAVE BEEN EXCLUDED
There is no dispute that African-Americans, the group alleged to be excluded, are a distinct group in the community for the purposes of determining whether there is a violation of the Sixth Amendment’s fair-cross-section requirement.
2. WHETHER REPRESENTATION IS FAIR AND REASONABLE
The second prong requires defendant to show that “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[.]”
But in order to properly consider the results of the relevant tests, we must answer the questions we posed in our grant order to identify what data to input into the tests. Specifically, we asked the parties to brief whether in evaluating the second prong, “courts may choose to examine only the composition of the defendant’s particular jury venire, or whether courts must always examine the composition of broader pools or arrays of prospective jurors” and “whether a defendant’s claim of such underrepresentation must always be supported by hard data, or whether statistical estimates are permissible . . . .”
We hold that when applying the relevant statistical tests, a court must examine the composition of jury pools and venires over time using the most reliable data
In addition, evaluating the representation of a distinct group in venires over time requires using the most reliable data available to input into the relevant tests. In this case, hard data regarding the race of those sent questionnaires or appearing for jury service are not available for two primary reasons. First, the Secretary of State did not include the racial identity of individuals in the potential-juror database that was provided to Kent County, and thus the court’s computer program did not include a record of the race of the individuals who were selected. Second, the voluntary surveys that the court made available to potential jurors who appeared for jury service, which included a section in which those persons could identify their race, were plagued by wildly inconsistent participation and therefore do not provide a meaningful data set.
The circuit court did keep records of the zip code of each person sent a jury summons. Reviewing and using those records for the period from January through March 2002, Dr. Stephenson, a statistical expert, was able to estimate, using the racial makeup of each zip code from the census data, the number of African-
Dr. Stephenson estimated that 4.17 percent of the summonses issued were sent to African-Americans from January through March 2002. Given that the census data reflects that the jury-age population of African-Americans in the community is 8.25 percent, it is clear that African-Americans were underrepresented. The pertinent question then is whether this underrepresentation in the composition of jury pools and venires during this time was nonetheless fair and reasonable.
a. ABSOLUTE-DISPARITY TEST
The absolute-disparity test is the most widely applied test and is used by the majority of jurisdictions to evaluate whether the representation of a distinct group was fair and reasonable.
The absolute-disparity test, however, is often criticized because it makes it difficult, if not impossible, for a defendant to make this showing if the distinct group has a small population in the community.
b. COMPARATIVE-DISPARITY TEST
Some courts have used the comparative-disparity test, which measures “the decreased likelihood that members of an underrepresented group will be called for jury service . . . .”
The Court of Appeals, after disfavoring the result of the absolute-disparity test because the percentage of the distinct group in the relevant community was low, effectively established a bright-line rule favoring the
The Court of Appeals further erred when it considered the 73.1 percent result of the comparative-disparity test for only defendant’s venire. Using the proper data from Dr. Stephenson’s three-month examination of venires, the comparative disparity was 49.45 percent.
In United States v Rogers, a 30.96 percent comparative disparity was deemed significant by an Eighth Circuit panel, but this determination was made in dicta as the panel was bound by earlier Eighth Circuit precedent regarding the particular jury system under review.
c. STANDARD-DEVIATION TEST
The standard-deviation test, also known as the statistical-significance test, calculates the probability that the observed underrepresentation of the distinct group was the result of chance.
Further, Dr. Stephenson concluded that it was inappropriate to apply the standard-deviation test in this case because the normal approximation was not valid. He did, however, apply a related test to determine that the extent of underrepresentation from January through March 2002 was not the result of random chance. Nonetheless, all we garner from the result is just that — the underrepresentation was not a random occurrence. The mere fact that the underrepresentation
d. DISPARITY-OF-RISK TEST
Another test that is sometimes discussed is the disparity-of-risk test.
Unlike the absolute-disparity test and the comparative-disparity test, courts have not considered the appropriate threshold under which the disparity of risk should be deemed fair and reasonable. We believe the normative line should be drawn at 50 percent.
Given the results of the foregoing tests, defendant has failed to show that the representation of African-Americans in the venires at issue was not fair and reasonable. Instead, the results of the absolute-disparity test, comparative-disparity test, and disparity-of-risk test all support the opposite conclusion: that the representation of African-Americans was fair and reasonable. Accordingly, we conclude that defendant did not make out a prima facie case for his Sixth Amendment fair-cross-section claims. Notwithstanding our conclusion on this determinative issue, we will address the third prong in order to consider the argument that a defendant who shows systematic exclusion under the third prong is entitled to make a lesser showing under the second prong.
3. WHETHER UNDERREPRESENTATION RESULTS FROM SYSTEMATIC EXCLUSION
The third Duren prong requires a defendant to show that “this underrepresentation is due to systematic exclusion of the group in the jury-selection process.”
The evidence here shows that a computer programming error in the computer software used to randomly select potential jurors from the Secretary of State database of names of eligible jurors in Kent County truncated that database of names from 453,414 eligible jurors to 118,169. The smaller list of names was used to randomly select potential jurors. This list, however, disproportionately included more individuals in certain zip codes and fewer from other zip codes. The underrepresented zip codes on the whole had higher concentrations of African-Americans. Thus, the computer program error, which was the cause of the systematic exclusion, was one that was “inherent” in the computer program, which was “the particular jury-selection process utilized” to select potential jurors for service.
It is irrelevant for the purpose of this analysis that the computer error was not intentional and was corrected upon its discovery because under the third prong “systematic disproportion itself demonstrates an infringement of the defendant’s interest in a jury chosen from a fair community cross section.”
In Hubbard, a panel of our Court of Appeals addressed a fair-cross-section claim and held that the threshold for underrepresentation is lower when the underrepresentation is “the result of circumstances less benign than random selection. . . .”
In lowering the threshold of the second prong in circumstances in which the level of disparity was the result of nonbenign circumstances, the Hubbard panel erroneously assumed that the underrepresentation contemplated by the second Duren prong depends in part on the reason for the underrepresentation. The reason for the underrepresentation is the basis of the third prong, and the only issue in the second prong is whether the degree of underrepresentation is acceptable. In
Additionally, Hubbard’s rationale for adopting the approach set forth in United States v Osorio
IV CONCLUSION
This case presented the issue whether defendant was denied his Sixth Amendment right to an impartial jury
Notes
Duren v Missouri,
2 Id. at 364.
People v Smith,
The terms “venire,” “jury pool,” “jury panel,” and “array” are sometimes used interchangeably. See Black’s Law Dictionary (9th ed) (defining “venire” as “ [a] panel of persons selected for jury duty and from among whom the jurors are to he chosen. — Also termed array; jury panel; jury pool”). Because of this, our references to “venire” are to the group of potential jurors in the courtroom from which a defendant’s petit jury are selected and our references to “jury pool” are to the group of people summoned to appear for jury duty on a particular day.
The dissent believes that this opinion engages in unnecessary error correcting. For obvious reasons, we disagree that addressing a published Court of Appeals opinion that misapplied constitutional principles, United States Supreme Court precedent, and our precedent is unnecessary.
Before the court went off the record, an exchange between defense counsel and the trial court showed confusion about whether the individual that the trial court had identified as an African-American member of defendant’s venire was actually defendant’s step-father.
See MCL 600.1307a (addressing grounds for disqualification and exemption from jury service).
The results, which were contained in a document entitled “Jury Community Representation Survey Compilation,” reflect that on January 7, 160 of 169 of those appearing responded, with 2 individuals indicating that they were African-American and 2 indicating that they were multiracial; on January 9, 3 of the 77 potential jurors appearing responded, with none indicating that he or she was African-American; on January 14, 130 of the 140 potential jurors appearing responded, with 2 indicating that they were African-American and 2 indicating that they were multiracial; on January 22, 16 of the 18 potential .jurors appearing responded, with none indicating that he or she was African-American and 1 indicating that he or she was multiracial; and, on January 23, 52 of the 54 potential jurors appearing responded, with 1 indicating that he or she was African-American.
People v Bryant, unpublished opinion per curiam of the Court of Appeals, issued March 16, 2004 (Docket No. 241442) (Bryant I).
Id. at 2-4.
People v Hubbard (After Remand),
Bryant I, unpub op at 4.
Id.
Id.
Id. at 5. The Court of Appeals rejected defendant’s remaining issues on appeal. Id. at 5-7. Judge Borrello concurred with the majority on these issues, but dissented with regard to defendant’s fair-cross-section claim because he believed that the evidence established sufficient under-representation and that the computer error excluding zip codes having larger minority populations constituted systematic exclusion of African-Americans from the venire. Id. at 2 (Borrello, J., concurring in part and dissenting in part).
This case was reassigned to Judge Dennis Kolenda on remand because Judge David Soet, who had presided over defendant’s trial, had retired.
The frequency with which prospective jurors from certain zip codes were sent jury questionnaires prompted an investigation, which resulted in discovery of the programming error in June 2002, four months after defendant’s trial.
As noted in the summary of the jury clerk’s testimony, this database included the names and addresses of people shown to have a Michigan driver’s license or Michigan personal identification card with an address in Kent County.
The trial court found that the there was no evidence that the underrepresentation of certain zip codes was anything other than the “result of a random draw.” There is some evidence, however, that reflects that the original database from the Secretary of State grouped the names by zip code. This discrepancy does not affect our analysis because we conclude in either event that the underrepresentation was inherent in the jury system and thus constituted a systematic exclusion within the meaning of Duren’s third prong.
Kent County corrected the error the following month by again hiring an outside vendor and changing the computer program it used.
Defendant summarizes Dr. Chidi’s testimony in his brief and asserts without any meaningful analysis that the trial court wrongly rejected the testimony. Our review of the record does not suggest that the trial court’s rejection of his testimony amounted to clear error, MCR 2.613(C). Accordingly, we will not consider Dr. Chidi’s testimony in our analysis.
MRE 706 permits a court to appoint an expert witness on its own motion.
The absolute-disparity test measures the portion of the overall population of a distinct group that has been excluded by subtracting the
The comparative-disparity test measures the decreased likelihood that members of an underrepresented group will be called for jury service and is calculated by dividing the result of the absolute-disparity test by the percentage of the distinct group in the overall population of the community. See part 111(B)(2)(b) of this opinion.
The standard-deviation test measures the probability that the degree of underrepresentation could be the result of random chance. See part 111(B)(2)(c) of this opinion.
The standard-deviation test uses a normal approximation of a binomial random variable. Dr. Stephenson indicated that the sample size was not large enough for the test given the proportion of African-Americans in the community.
This analogous test used the “exact” binomial distribution.
The trial court only considered this group of individuals, not the resulting pools, because the pools were affected by considerations for which the court was not responsible such as racial disparities in whether the questionnaire was delivered, response rates, disqualifications, hardships, and people who failed to appear.
Smith,
People v Bryant,
Id. at 267.
Id. at 269.
Id. at 269-270.
Id. at 270-271. On this point, the panel relied on United States v Rogers,
Bryant II,
Id. at 272-273.
Id. at 274.
Id. at 273-275.
Id. at 275-276.
People v Bryant,
The parties shall include among the issues to be briefed: (1) whether, in evaluating whether a distinctive group has been sufficiently underrepresented under Duren v Missouri,439 US 357 (1979), so as to violate the Sixth Amendment’s fair cross-section requirement, courts may choose to examine only the composition of the defendant’s particular jury venire, or whether courts must always examine the composition of broader pools or arrays of*595 prospective jurors; (2) whether a defendant’s claim of such under-representation must always be supported by hard data, or whether statistical estimates are permissible and, if so, under what circumstances; and (3) whether any underrepresentation of African-Americans in the defendant’s venire, or in Kent County jury pools between 2001 and 2002, was the result of systematic exclusion under the third prong of Duren. [Jd.]
See People v Armstrong,
Id.
Berghuis v Smith,
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 defence. [US Const, Am VI.]
Although the text of the Sixth Amendment only provides in reference to a jury “the right to... an impartial jury,” the United States Supreme Court
Taylor,
Id. at 523, 525.
Id. at 524.
Id. at 531. In reaching its decision, the Court emphasized that it was not imposing a requirement “that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.” Id. at 538.
48 Duren,
Id.
Id. at 362, 364.
Id. at 366. The Court, without naming its calculation, applied the absolute-disparity test by comparing the difference between the percentage of the distinct group in the population and the percentage of the distinct group appearing in venires.
Id.
See, e.g., United States v Carmichael,
Duren,
Smith,
See Berghuis,
Smith,
Id.
Bryant III,
Duren,
Id. at 366 (emphasis added). In particular, Duren considered the venires used for nearly a year as a part of its reasoning for concluding that the second prong was satisfied by the defendant’s statistical presentation. Id. at 362-363, 365-366.
Id. at 366 (emphasis added).
See United States v Miller, 771 F2d 1219, 1228 (CA 9, 1985) (stating in a discussion of Duren’a second prong that “[i]t appears to us that the Supreme Court’s use of the plural in setting up the Duren test is a clear indication that a violation of the fair cross-section requirement cannot be premised upon proof of underrepresentation in a single jury”); United States v Allen,
Despite our straightforward reading of Duren and this supporting authority in her dissent Justice Marilyn Kelly disagrees that the second prong requires a pattern of underrepresentation over time. She does so while choosing not to address the language in Duren that compels this treatment of the second prong. She also attempts to critique some of our supporting caselaw by ignoring that those same cases explicitly support our reading of Duren’s second prong. Moreover, some of the cases she cites do not even contain a substantive discussion of the second prong, while no case that she cites actually concludes that the second prong may be satisfied by a showing of underrepresentation in only a particular defendant’s venire.
In addition, contrary to Justice Kelly’s suggestion, our approach does not ignore defendant’s venire under the second prong. Instead, we merely follow Duren by including it in the data set of venires used to calculate the degree of underrepresentation. See Duren,
When only a particular defendant’s venire is examined, the results may look more or less significant depending on the actual composition of the individual venire compared to the broader picture. But it is only by considering the broader picture that a court can evaluate whether the representation of a distinct group was fair and reasonable.
We note that Dr. Stephenson’s estimate is more relevant than the results of the voluntary survey in determining whether the body of potential African-American jurors as a whole was underrepresented because it actually looked at who was chosen to receive summonses rather than who decided to appear for service on a given day.
See Delgado v Dennehy,
See Royal,
See id. at 7; see also Note, Re-justifying the fair cross section requirement: Equal representation and enfranchisement in the American criminal jury, 116 Yale L J 1568, 1596 (2007).
See United States v Ashley,
Smith,
If the jurisdiction is 99% African American and venires are 49% African American, then defendants would be virtually assured of having African Americans on their petit juries, despite the 50% absolute disparity. If, on the other hand, the overall population is 50% African American and venires are 0% African American, then the odds of having an African American petit juror would drop from near-certainty to total impossibility. The fact that the absolute disparity test cannot distinguish between these radically different scenarios indicates that it does not measure defendants’ probabilistic injuries. [Commentary, Jury poker: A statistical analysis of the fair cross-section requirement, 8 Ohio St J Crim L 533, 545 (2011).]
See, e.g., Thomas, 159 F3d at 1151 (addressing an absolute disparity of approximately 5 percent); United States v Suttiswad, 696 F2d 645, 649
8.25 percent minus 4.17 percent is 4.08 percent.
Smith,
United States v Shinault,
Id. Unlike the absolute-disparity test, the United States Supreme Court has never applied the comparative-disparity test in practice.
Smith,
Yet the comparative disparity test lacks the absolute disparity test’s awareness of what fraction of the total [population] has been tampered with. For example, when all African Americans are absent from venires, the result is the highest possible comparative disparity score, 100%. But that figure is useless unless one also accounts for how many African Americans are in the overall population. If the total population is majority African American, then the observed underrepresentation would reduce the odds of drawing an African American juryperson from near certainty to total impossibility. If, on the other hand, African Americans comprise just 0.1% of the total population, then the likelihood of drawing an African American would not have significantly declined. Thus, despite its support among prominent commentators, the comparative disparity test, like the absolute disparity test, simply does not measure the probabilistic injuries generated by fair cross-section violations. [Jury poker, 8 Ohio St J Crim L at 545-546.]
Smith,
The absolute-disparity result of 4.08 percent divided by the 8.25 percent African-American population figure yields a result of 49.45 percent.
See Orange,
United States v Rogers,
Id. at 775.
Ramseur v Beyer, 983 F2d 1215, 1232 (CA 3, 1992).
See Weaver,
See Jury poker, 8 Ohio St J Crim L at 549-550.
Jefferson v Morgan, 962 F2d 1185, 1189 (CA 6, 1992).
See Castaneda v Partida,
Smith,
As one commentator stated:
[T]he question answered by [the standard-deviation test], while an interesting one, is not the appropriate one for a fair cross-section analysis. The probability that the composition of a jury wheel arose by random selection from the community is not directly related to the defendant’s chances of drawing a jury of a certain composition. [Measuring underrepresentation, 103 Yale L J at 1928.]
See Jefferson, 962 F2d at 1189 (setting forth that “in the context of racial discrimination claims, the larger the number of standard deviations, the more likely the observed result is the product of discrimination rather than chance”).
See Jury poker, 8 Ohio St J Crim L at 550.
Justice Marilyn Kelly’s dissent views this treatment of the standard-deviation test as inconsistent with our criticism of the Court of Appeals. Yet she does not contest that the standard-deviation test has nothing to do with measuring whether the representation is fair and reasonable. Thus, it is not that the standard-deviation test merely has flaws like the other tests; it is that it is irrelevant to the consideration of the second prong. Therefore, unlike the other tests, it cannot logically inform our evaluation.
Although occasionally discussed, it appears that no court has applied it.
Commonwealth v Arriaga, 438 Mass 556, 566-567;
The analysis focuses on the effects of the jury-selection system, not the effects of peremptory or for-cause strikes because the effects of these strikes on a defendant’s jury are resolved under an equal-protection analysis. See Batson v Kentucky,
See Jury poker, 8 Ohio St J Crim L at 537 n 25. This test employs the binomial theorem to obtain the necessary probabilities for comparison. The binomial theorem in this situation expresses as a percentage the difference between what would be the expected normal distribution of a distinct group in 12-person juries assuming that representation in the jury pool is the same as in the community and the actual distribution of a group in 12-person juries assuming that the distinct group is underrepresented in the jury pool. The following results were computed using a binomial calculator available at Texas A&M University Department of Statistics chttp:// www.stat.tamu.edu/~west/applets/binomialdemo.html> (accessed June 26, 2012), with “n” representing the number of jurors drawn, “p” representing the probability of success in choosing a juror from the distinct group in one drawing, “x” representing the possible number of jurors from that group on the jury, and “Prob (x)” representing the probability of that number resulting. The results show the probabilities for an expected number of members of the distinct group in a 12-person jury if the drawing were fully representative (p = 0.0825) and the probabilities for an expected number of members of the distinct group in a 12-person jury given the known degree of underrepresentation in this case (p = 0.0417):
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See Arriaga, 438 Mass at 566; United States v Green,
See Williams v Florida,
Smith,
See Re-justifying the fair cross section requirement, 116 Yale L J at 1597 (stating that underrepresentation of what already is a small group does not “appreciably impact the defendant’s ‘fair possibility’ of a representative jury”).
We consider the disparity between the ideal risk and the actual risk for having no African-Americans on a randomly selected 12-person jury because it is the largest disparity. Thus, it represents where the under-representation most affected the expectations of a particular result. See Jury poker, 8 Ohio St J Crim L at 540 n 28.
In any randomly drawn 12-person jury drawn from a pool exactly proportionate to Kent County’s African-American population as a whole (8.25 percent), a defendant can expect no African-Americans on the jury 35.59 percent of the time. This is called the “ideal risk” because it measures the probability of a particular result without underrepresentation. However, when randomly drawing from the disproportionate jury pool that occurred in this case (4.17 percent African-American), the probability of a 12-person jury containing no African-Americans rises to 59.98 percent. This is called the “actual risk” because it measures the probability of a particular result given the actual underrepresentation. With a 4.17 percent representation rate, a defendant would expect to have no African-Americans on a 12-person jury 59.98 percent of the time. The disparity-of-risk test, thus, calculates the difference between the ideal risk (35.39 percent) and the actual risk (59.98 percent), resulting in a disparity of risk of 24.39 percent.
See id. at 541-542 (proposing a 50 percent threshold).
See id. (stating that such a line “parallel[s] the commonplace legal rule that claimants are entitled to no relief when they fail to show it is more likely than not that they have been wronged”). We also note that defendant’s risk disparity of roughly 24 percent even falls below the 37 percent threshold proposed by the author who first introduced this test. Measuring underrepresentation, 103 Yale L J at 1936-1937. We do not adopt the 37 percent threshold because there is no normative rationale for doing so.
Although the dissenting justices question our use of the disparity-of-risk test, they notably make no substantive critique of the test itself.
Duren,
Id. at 366.
Id. at 359, 366.
Id. at 368 n 26 (emphasis added).
Because defendant presented direct evidence of a systematic exclusion, we need not address whether statistics alone may establish that underrepresentation was the result of a systematic exclusion inherent in the jury-selection process.
Hubbard,
Hubbard,
Id. at 481. Although not addressed by the panel in Hubbard, given that the minority population in Hubbard was 7.4 percent, the comparative disparity ranged from 44.6 percent to 55.4 percent.
Osorio,
In Smith, we disapproved the concurring opinion’s endorsement of Hubbard, hut declined to reach the issue because it was unnecessary to resolve the case. Smith,
Concurrence Opinion
(concurring). I join in the majority opinion, which reasonably applies the test governing the Sixth Amendment’s “fair cross section” requirement, as articulated by the United States Supreme Court in Duren v Missouri,
The Sixth Amendment guarantees criminal defendants the right to a trial “by an impartial jury . ...” In Taylor v Louisiana,
Defendants are not entitled to a jury of any particular composition, but the jury wheels, pools of names, panels, or*620 venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof. [Id. at 538 (citations omitted).]
Under the “fair cross section” analysis, it is unnecessary for a defendant to show that the lack of “reasonable representation” of a “distinctive” group is the result of discrimination in the jury-selection system, as would be required under the Equal Protection Clause of the Fourteenth Amendment. See, e.g., Castaneda v Partida,
In Duren, the Supreme Court set forth a three-part test to evaluate “fair cross section” challenges. Specifically, in order to establish a prima facie case, a defendant must show
*621 (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. [Id. at 364.]
The dispositive question in this case concerns the second part of Duren’s test — i.e., whether the representation of African-Americans in venires from which juries were selected in Kent County during the period in which defendant was tried and convicted is “fair and reasonable in relation to the number of such persons in the community.” Id.
To determine whether representation is “fair and reasonable” under the Duren test, courts have applied yet more tests. In People v Smith,
We thus consider all these approaches to measuring whether representation was fair and reasonable, and conclude that no individual method should be used exclusive of the others. Accordingly, we adopt a case-by-case approach. Provided that the parties proffer sufficient evidence, courts should consider the results of all the tests in determining whether representation was fair and reasonable. [Id. at 204.]
After a decision on habeas corpus review by the United States Court of Appeals for the Sixth Circuit asserting that Smith constituted an “unreasonable” application of “clearly established federal law,” Smith v
Given this state of the law, I join the majority opinion because it engages in a reasoned application of the relevant decisions of the United States Supreme Court and this Court. Consistently with the approach outlined in our decision in Smith, the majority opinion considers the results of all three tests for which the parties have proffered evidence in determining whether the representation of African-Americans, the “distinctive” group in question, was “fair and reasonable” in Kent County venires. Specifically, the majority opinion considers the results of the “absolute disparity” and the “comparative disparity” tests, as well as those of an additional test, the “disparity of risk” test,
That said, the fact that both sides have sought reasonably and in good faith to apply Duren underscores questions concerning Duren’s test itself. These largely arise from the sense that in applying Duren, this Court seems to me engaged more in the judicial equivalent of a Rorschach test, an essentially standardless inquiry in which judicial conclusions are indicative more of personal judgments concerning the “fairness and reasonableness” of the Kent County venire than in the application of any discernible constitutional command.
In particular, I am concerned about the statistical tests used to determine whether Duren’s second part has been satisfied. The limitations of these tests have been widely noted, see, e.g., Berghuis,
However, perhaps an even more fundamental question is also raised here — why certain statistical tests and not others? The United States Supreme Court has acknowledged that the three tests described in Smith are each imperfect, Berghuis,
These and related questions concern the meaning of Smith’s directive that courts must “consider all. . . approaches to measuring whether representation was fair and reasonable . . . Smith,
That is, even if I could clearly answer each of the aforementioned questions, and knew which tests to “consider” and how to give legal import to their results, it still would be difficult to apply Duren because the ultimate constitutional standard to which it is directed remains unclear. I know what the constitutional standard in “fair cross section” cases is not. It is not an equal-protection standard under which any “underrep
Thus, some amount of “underrepresentation” is “fair and reasonable” and some amount is not, and the courts are to choose where the line is to be drawn. The problem is not that judges are ill equipped to determine what is “fair and reasonable,” as such inquiries are made daily by judges in other constitutional contexts. In the context of the Duren test, however, there is no agreed-upon standard or “ideal” by which to measure the constitutional mandate of an “impartial jury” at the venire stage. The United States Supreme Court has stated that proportionality constitutes one relevant measure, but that it is also not required in order to satisfy the Constitution, which leads to uncertainty
In the end, many trial and appellate judges have reviewed this case, and the question whether the venire here was “fair and reasonable” has closely divided them in favor of a negative response. While I have no doubt that each of these judges has addressed the question in this case “fairly and reasonably,” and in accordance with his or her own best understanding of Duren, there seems to be little in the way of a coherent constitutional standard that distinguishes between “systematic exclu
The majority opinion does not analyze the results of the “standard deviation” test because the only expert whom the trial court found credible, Dr. Paul Stephenson, testified that the test was “not appropriate” in the present circumstances.
While these questions may seem a mere quibble to some, when judges are free to pick and choose among disparate tests, pointing to disparate constitutional conclusions, defendants and communities that are not significantly disparate may end up being treated in a disparate manner as a function of the judicial decision-making involved in: (a) choosing appropriate tests; (b) evaluating or considering such tests; and (c) reconciling such tests when they produce conflicting results.
See also Duren,
A defendant is thus placed in a strange position: he is entitled to a jury drawn from a fair cross section specifically because it increases the odds that different groups and perspectives will be represented in the jury pool, which in turn helps ensure that the panel is impartial; when actually seating a jury, however, he may not take those same characteristics into account. He may not base his peremptory strikes on the very same proxy for viewpoints that the Court has already used to justify the cross-section requirement, even if his efforts are designed to bring about the exact benefit that the cross-section requirement provides. An attempt to support the cross-section requirement on impartiality grounds thus runs headlong into the rule that race or gender may not be used as a substitute for inclinations, biases, or possible votes.
As did Justice Stewart, I also recognize that both this Court and the United States Supreme Court are quite possibly faced here with “the task of trying to define what may be indefinable.” Jacobellis,
Dissenting Opinion
(dissenting). I respectfully dissent because I do not think that the Court of Appeals clearly erred by concluding that defendant is entitled to a new trial under the unique facts presented in this case.
I agree with Justice MARILYN KELLY that courts have not always applied Duren v Missouri,
As I explained in People v Smith,
The majority’s decision to hastily adopt the “disparity of risk” test has also given me pause, when, as Justice KELLY aptly observes, the test was not addressed by the lower courts, was not briefed or argued to this Court, and, as the majority concedes, has not been endorsed by any court in the country. Thus, because the substantive merits of the disparity-of-risk test and the majority’s 50 percent threshold
Accordingly, I respectfully dissent.
Indeed, aside from the fact that the issue was not raised or argued by the parties in this case, given the majority’s conclusion that defendant’s risk disparity falls below even the threshold proposed by the author first introducing the disparity of risk test, see ante at 615 n 102, I question whether it is necessary to adopt a higher threshold in this case.
Dissenting Opinion
(dissenting). I concur with the majority that defendant satisfied the first and third prongs of the test for a fair-cross-section violation of the
The Court of Appeals used existing law and, for the most part, applied it properly. The majority opinion imputes error where there is none. Worse, it sua sponte introduces a “disparity of risk” test not accepted by any court in the country. The analysis the majority has set forth today neither improves nor clarifies this area of the law.
The majority concludes that the Court of Appeals erred in two ways when evaluating the second prong of Duren. First, it considered the representation of African-Americans only in defendant’s venire, not in multiple venires over time. Second, it misapplied our decision in People v Smith
I generally agree with the majority that, under Duren, courts must consider the composition of venires
Some of the authority the majority relies on undermines its conclusion. For example, if a distinctive group is not underrepresented in a defendant’s particular venire, there is no cognizable Sixth Amendment claim. Thus, a distinctive group’s underrepresentation in a defendant’s particular venire is a necessary component of a Sixth Amendment claim. Accordingly, the composition of a defendant’s particular venire must be examined at some point in the Duren analysis. Yet the majority’s approach effectively ignores it.
Other cases that the majority cites do not conclusively demonstrate that the composition of multiple venires over time must be considered under the second Duren prong rather than the third. To the contrary, these cases seem to stand for the uncontroversial proposition that a defendant must show underrepresentation in multiple venires over time to satisfy the Duren test generally.
Thus, the Court of Appeals did not err by using the comparative disparity in defendant’s venire — 73.1 percent — when applying the second prong of Duren
The majority’s second criticism of the Court of Appeals’ opinion is that it supposedly established “a bright-line rule favoring the comparative-disparity test” and disregarded the results of the other tests.
The Court of Appeals did consider the results of both the absolute-disparity test and the standard-deviation test, but found both unhelpful to resolving defendant’s appeal.
When discussing the results of the standard-deviation test, the majority makes precisely the same error that it accuses the Court of Appeals of making. It notes the flaws in the standard-deviation test and decides to “afford the result of this test no weight.”
Finally, I cannot agree with the majority’s importation of a fourth test — its disparity-of-risk test — into this appeal. First, no party or amicus curiae mentioned the disparity-of-risk test, let alone requested that we adopt it. Thus, the test was not properly considered by the
I believe that my analysis dispels the majority’s findings of error by the Court of Appeals and demonstrates that the Court of Appeals correctly analyzed this case. The majority’s sole remaining basis for reversing the Court of Appeals’ judgment is its disagreement with that court’s reliance on People v Hubbard (After Remand.j.
Under Hubbard, a court may consider the reason for a systematic exclusion when deciding whether representation of the distinctive group was fair and reasonable. If a jury-selection process systematically excludes a distinctive group on the basis of nonbenign factors, a court may give a defendant the benefit of the doubt on underrepresentation.
Accordingly, I would follow Hubbard, as Justice CAVANAGH advocated in his concurring opinion in Smith.
Because defendant established that systematic exclusion occurred and “the showing of underrepresentation is close,”
Finally, we must not lose sight of the fact that the right at issue here — the right to a jury trial — is the cornerstone of the American justice system.
For these reasons, I believe that the Court of Appeals correctly reversed defendant’s convictions and remanded for a new trial. I would affirm its judgment.
Duren v Missouri,
It is also altogether unnecessary. The error in the jury-selection process at issue here occurred between June 2001 and August 2002 as a result of a computer programming error. Accordingly, the number of cases raising this issue that remain in the appellate pipeline is likely low. The majority’s decision today is dressed-up error correction, pure and simple.
People v Smith,
Ante at 582-583.
People v Bryant,
The majority asserts that its approach takes defendant’s venire into account by “including it in the data set of venires used to calculate the degree of underrepresentation.” Ante at 601 n 63. But disparity in the composition of a defendant’s particular venire must be shown in order to demonstrate that the defendant was harmed because a constitutional violation actually occurred. Accordingly, the disparity in that particular venire must be considered independently, not simply lumped in with statistics concerning other venires.
See, e.g., United States v Miller, 771 F2d 1219, 1228 (CA 9, 1985) (“[A] violation of the fair cross-section requirement cannot be premised upon
See ante at 600, quoting Duren,
State v Bowman, 349 NC 459, 469;
Ante at 602.
Duren,
Other courts also examine the disparity between the racial composition of the community and the composition of the defendant’s venire when applying the second Duren prong. See, e.g., State v Hester,
In any event, for reasons explained later in this opinion, I conclude that defendant established a Sixth Amendment fair-cross-section violation even if I use the three-month comparative disparity of 49.4 percent.
Ante at 606-607.
See Bryant,
Ante at 611.
Bryant,
Because the propriety of this test is not properly before us, I decline the majority’s invitation to indulge in a substantive critique of it. See ante at 37 n 103.
Hubbard,
Id. at 478, 481.
United States v Biaggi, 909 F2d 662, 678 (CA 2, 1990).
United States v Osorio,
Ante at 618.
United States v Rioux,
Smith,
Id. at 224.
Hubbard,
Smith,
“Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” Blakely v Washington,
“Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” Duncan v Louisiana,