December 2013 Vol. 112 No. 3 THE REVIEW

Can We Calculate Fairness and Reasonableness? Determining What Satisfies the Fair Cross-Section Requirement of the Sixth Amendment

Colleen P. Fitzharris

The Impartial Jury Clause of the Sixth Amendment requires that the venire from which the state and the defendant draw a twelve-person petit jury be a fair cross-section of the community. The Supreme Court announced a three-prong test in Duren v. Missouri to help courts determine whether there has been a Sixth Amendment violation: (1) whether a distinctive group in the community was excluded; (2) whether the venire was not a fair and reasonable representation of the county population as a whole; and (3) whether that underrepresentation was the result of systematic exclusion. When evaluating the second prong, courts routinely turn to statistical measurements. The four statistical tests that courts have used, including the disparity-of-risk test that the Michigan Supreme Court recently employed in People v. Bryant, fall short of adequately addressing the second prong. This Note proposes two solutions. First, courts should consider the comparative-disparity-of-risk test, borrowed from the medical malpractice loss-of-chance doctrine, as the best measure of whether underrepresentative venires are not fair and reasonable in relation to the community. Second, judges should consider whether a distinctive group in the community has systematically been excluded before turning to the question of whether an underrepresentative venire is fair and reasonable in a given community. After considering whether a distinctive group has been excluded, courts may employ the statistical tests as part of their analysis but should not use thresholds to determine what is fair and reasonable.

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