101 Iowa L. Rev. 1719 (2016)

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Abstract

Every criminal defendant has the right to a jury selected from a “fair cross-section” of the community—a pool of people reflecting the community’s racial and ethnic makeup. Yet there is substantial evidence that juries in state courts across the country do not reflect a fair cross-section of their communities, in violation of the Sixth Amendment and federal and state statutes. This Article exposes and analyzes one cause of racially unrepresentative juries: state courts’ failure to grant criminal defendants access to jury selection records.

Jury selection records are critical because fair cross-section violations are frequently hidden from view. For example, a computer error caused the federal jury selection system in Connecticut to read the “d” in Hartford to mean “deceased,” and accordingly failed to call anyone from Hartford for jury service. This hidden error eliminated 63% of eligible African-Americans from the jury system and thereby produced a racially unrepresentative jury pool in violation of the fair cross-section guarantee. The flaw went undetected until a federal defendant obtained access to jury records under federal law. Yet under Connecticut law, a state defendant in that district would be prohibited from accessing the records that revealed the error. As a result of state laws like Connecticut’s, defendants are often denied access to the information they need to discover violations of the fair cross-section right.

This Article provides the first scholarship analyzing the role of access to records in constitutional and statutory fair cross-section doctrine. It reveals the way in which the celebrated constitutional and statutory right to an impartial jury depends entirely on the ostensibly minor decision to grant or deny criminal defendants access to jury selection records.

 This Article begins by illustrating why fair cross-section violations are both invisible and harmful, and describes how federal law has responded by guaranteeing federal defendants a right to discovery. It uses an original 50- state survey to reveal that, in contrast to the federal system, the majority of states keep the door to the fair cross-section right locked by denying defendants access to the discovery key. In fact, 39 of the 50 states fail to provide access to the one set of records that defendants must have in order to enforce the right. This Article analyzes and critiques state court doctrine that elevates administrative concerns over the fair cross-section right, and concludes by proposing solutions that could accommodate courts’ concerns without jeopardizing the fair cross-section guarantee.