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Measure
3.2.3: Representativeness of Final Juror Pool
This
measure considers the representativeness of the final juror pool. It
involves collecting demographic data by questionnaire on all persons
reporting for jury duty during a specified period of time. The questionnaire
data are compared to the demographic characteristics of the jurisdiction’s
population to determine the extent of representativeness.
Planning/Preparation.
The census publications or data obtained for Measure
3.2.1 also should contain the demographic data needed for this
measurement.
The
assistance of an individual familiar with demographic studies would be
helpful for this measure. A local college or university likely has a faculty
member with such qualifications. The added credibility brought to the
examination by such a person could prove helpful if the jury system is ever
challenged for selecting prospective jurors who are not representative of
the population.
Data
Collection. A
questionnaire should be distributed to all persons serving, whether they are
selected as a trial juror or not. Questionnaires should be used for several
days or weeks scattered over a month. At least 200 questionnaires should be
used. Excellent response rates can be obtained by asking people to complete
the questionnaires before they leave the court. However, this necessitates
using a short, quickly completed form.
Data
Analysis and Report Preparation.
Analysis consists of comparing the demographic characteristics of the
population (obtained during the planning/preparation stage to the tabulated
data obtained from the jurors. If the population is 30 percent black and the
tabulated data indicates that 30 percent of those reporting to the
courthouse are black, those reporting perfectly represent the population and
there is no disparity between the population and prospective jurors for this
particular demographic characteristic. Unfortunately, a difference or
disparity usually exists. The two measures of the disparity generally used
to measure the difference between the pool or panels (often called the
venire) and the population are the absolute and comparative disparity.13
These measures are defined as follows:
-
Absolute
disparity: This index measures representativeness as the difference between
the proportions of the population and the source list of prospective jurors
that are in the category of interest. If the 18 and over population is 30
percent black and the venire is 20 percent, the absolute disparity is 10
percent, or the difference between these two numbers. A criticism of this
measure is that it is not sensitive to the relative size of the disparity.
That is, a venire that contained no blacks drawn from a population that is
10 percent black would have the same absolute disparity as the 30 percent/20
percent disparity mentioned above. The former situation is much more serious
than the latter, which is acceptable in many courts.
-
Comparative
disparity: This measure compensates for the limitation in the concept of
absolute disparity by relating disparity to the size of the underrepresented
group in the population. Using an example similar to the one above, if the
venire is 20 percent black and the population is 30 percent, the comparative
disparity is 33 percent [(30-20)/30=.33]. A venire with the same
absolute disparity (one that contained no blacks in a community that is 10
percent black) would produce a comparative disparity of 100 percent
[(10-0)/10=1.0]. Thus, the comparative disparity more properly reflects the
difference in these two situations. Comparative disparity is the percentage
by which the probability of serving is reduced for people in the category
being examined. (Note that this underrepresentation is positive while an
overrepresentation is negative—a point which often causes confusion.)
Kairys
et al., while admitting that no clear standard values exist based on case
law, suggests a maximum comparative disparity of 15 percent.14
An article surveying California case law as of 1987 cites absolute disparity
as low as 1.8 percent and comparative disparity of 43 percent and above as
significant.15
The
significance of the results should be based on all of the following:
-
The
findings of the State’s appellate courts in representativeness challenges.
-
The
level of the disparity (great disparities require greater actions by the
court).
-
The
alternatives available through other lists and the feasibility of merging or
using these lists.
Finally,
regardless of the exact numerical degree of disparity, there is a need to
determine how and why the final juror pool is unrepresentative. What are the
likely reasons for the disparity? Are out-of-date, invalid, or unreliable
sources being relied on in the selection process? Does the
unrepresentativeness arise from different attrition rates for jurors from
different social groups? What policy changes might be necessary to remedy
the situation? By addressing these questions, the court can use Measure
3.2.3 for basic self-improvement.
____________________________________
13 D.Kairys, J.B. Kadane, and
J.P. Lehoczky, "Jury Representation, A Mandate for Multiple Source
Lists," California Law Review 65 (1977):776-827.
14 See note 13.
15 Menaster, Spooner, and Greenberg,
"Getting a Fair Cross-Section of the Community," Forum
(1989):14-21.
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