Standard 3.2 parallels the American Bar Association’s Standards Relating to Juror Use and Management (1993). These standards emphasize that "the opportunity for jury service should not be denied or limited on the basis of race, national origin, gender, age, religious belief, income, occupation, or any other factor that discriminates against a cognizable group in the jurisdiction" served by the court. Procedures designed to achieve representativeness include combining regularly maintained lists of registered voters and licensed drivers and using random selection procedures at each step of the jury selection process.

Measurement Overview. As noted in the introduction to this performance area, courts cannot guarantee that juries reach equitable decisions. Nor can they guarantee that the individuals chosen through voir dire to sit at trial are representative of the community from which they were chosen. Courts, however, can provide a significant measure of fairness and equality by ensuring that the methods employed to compile source lists and to draw the venire are representative of the total adult population of the jurisdiction. Thus, all those individuals qualified to serve on a jury should have equal opportunity to be considered and selected. This will help ensure that all parties and the public are confident that jurors are drawn from a representative pool.

Standard 3.2 parallels the emphasis on broad participation in and representation on juries found in the standards on juror use and management that have been adopted by the major national court organizations including the American Bar Association (ABA) and by many of the States.² These standards emphasize that jury duty should not be denied or limited on the basis of any factor discriminating against a "cognizable group" in the jurisdiction served by the court. Such a group can be "an economical, occupational, social, religious, racial, political, or geographic group in the community such as physicians, blacks, Protestants, or welfare recipients." Procedures designed to achieve representativeness in juries are included in ABA Standard 2. This standard encourages maximizing representativeness and inclusiveness of the jury source list by combining regularly maintained lists of residents, if any single list is found lacking. ABA Standard 3 encourages the use of random selection procedures at each step of the jury selection process.

There are three measures associated with Standard 3.2. The measures focus on jury representativeness, considered by many courts to be the most crucial indicator of quality. However, the measures are presented here in a sequence that parallels the developmental nature of the jury selection process—compilation of the source list, design and application of random selection procedures, and selection of the juror pool.

Measure 3.2.1 focuses on the inclusiveness of the source list. Inclusiveness is measured by comparing the number of names on the source list with the number of age-eligible persons in the population of the jurisdiction.³ If the census or other demographic source indicates that the jurisdiction contains 100,000 persons over the age of 17 (assuming the statutory minimum age is 18) and the source list is the voter list containing 80,000 names, the inclusiveness of the voter list is 80 percent. Though not ensuring representativeness, high levels of inclusiveness provide reasonable representativeness. Theoretically, if inclusiveness is 100 percent, representativeness is achieved. Inclusiveness is an excellent first measure because it is subject to straightforward calculation and because it provides the first indication of compliance with this standard. It is possible that a small list with low inclusiveness could represent the population, particularly if the population is very homogeneous. However, many persons would not be available to be selected for jury service if the inclusiveness were low. In the interest of equality and fairness and the desirability of broad citizen participation, the inclusiveness should be as great as possible. The greater the inclusiveness, the greater the sharing of responsibility and burden of jury service. Thus, inclusiveness has a dimension beyond representativeness, that of citizen participation in the administration of justice.

Measure 3.2.2 focuses on the use of random selection procedures. For years the jury system was marked by the appearance of individuals hand selected from certain strata of the population. Discrimination, intentional or not, was usually the result. Verdicts reflected the community standards of these strata, and the viewpoints of juries rarely reflected those of the entire community. It was only in 1975 that the U.S. Supreme Court held that women could not be excluded simply because they are women.⁴ With the previous measure emphasizing the use of a broadly inclusive list, the advantages of such a list are lost if the selection of names from this list is not random. The ABA standards call for randomness at each stage of the juror selection process while recognizing that certain practices are nonrandom but nonetheless permissible. Employing these standards eliminates all other nonrandom procedures.

The permitted nonrandom procedures given in Standard 3 of Standards Relating to Juror Use and Management are as follows:

This measure compares the number of names on a court’s juror source list(s) with the number of age-eligible persons in the jurisdiction’s population. The more closely the numbers match, the better the court is performing on this measure.

Planning/Preparation. The U.S. Department of Commerce, Bureau of the Census, publishes the population statistics of all counties in the County and City Data Book.⁶ More detailed data for each State can be found in General Population Characteristics, also available from the Bureau of the Census.⁷ (The latter is PC 80–1–BXX where XX is the State volume number.) This volume contains the age, race, gender, and national origin composition of each county as reported by the census every 10 years. Extrapolations of these data for the period between the census years are prepared by the Bureau of the Census and by local units of government such as planning commissions. In addition, a Census Data Center in each State (usually at one of the major universities) provides access to and assistance with census data and other statistics or data sources.

The eligible population for these calculations are citizens 18 years old and over, or whatever age stratification is defined for the State. Excuses granted for the elderly do not reduce the eligible limits unless individuals over a certain age are prohibited from serving on jury duty. Courts may wish to adjust the eligible population by excluding those who are hospitalized or incarcerated, or who are nonresidents (e.g., military personnel). However, these adjustments are usually beyond the accuracy of the measurement.

Data Collection. The source list may be one or more combined lists from which names are selected. Typical lists are the voters list, the drivers list, the merged voters and drivers list, or other single or merged lists. The size of the source list is determined by summing the number of names on the list(s).

Inclusiveness is measured by dividing the size of the list by the size of the eligible population. For instance, if the size of the source list is 1,439,066 and the size of the eligible population is 1,541,050, the calculation of inclusiveness would be .9338 or 93.4 percent.

Data Analysis and Report Preparation. An absolute standard of inclusiveness has not been adopted. ABA’s Standards Relating to Juror Use and Management states that courts should determine inclusiveness and evaluate if improvement is needed. The national rate of voter registration and the percentage of drivers (including only those persons over 18 years of age), 64.3 and 86.6 percent, respectively, in 1986, suggest some guidelines.⁸

A problem with all lists is the inclusion of noneligible persons, which gives a false sense of inclusiveness. The drivers list may include out-of-State residents or persons under the age of 18. Merged lists may contain persons who appear on both original lists and were not recognized as duplicates.⁹ Inclusiveness in excess of 100 percent is often seen with merged lists due to these situations. The extent of the inflation can be estimated from the response to the first mailing sent to the names selected and from those found to be disqualified for reasons such as noncitizenship or nonresidence. The level of undeliverables is also a measure of how up-to-date and inclusive the list may be. High levels of nonresponse should be pursued not only to establish system integrity (i.e., are citizens recalcitrant or simply not there?) but to further refine the inclusiveness measure. While questioning the inclusiveness measure in these courts, they do attest to the good faith effort to broaden the coverage to the maximum extent possible.

A standard of 85 percent inclusiveness has been suggested for any list, which would require a good single source list or the merging of several lists.¹⁰ Although an 85 percent inclusive list could completely exclude a minority that constituted 15 percent of the population, such a result is highly unlikely.

This measurement of inclusiveness is considered a useful first indication of jury list adequacy. Comparisons by county within a State, the trend over years, or the change when new lists are compiled can provide a valuable benchmark to understanding the jury system. Courts with inclusiveness values less than 85 percent should examine their levels of representativeness as discussed in Measure 3.2.3.

This measure determines whether a court is using random selection to select prospective jurors from the juror source list(s). Data are obtained by comparing actual prospective juror panels with those that would be expected if random selection was used.

Planning/Preparation. Although courts may say that all names are considered for selection, some statutes, rules, or jury plans specify that strata be observed. In such cases, courts draw names to represent each strata equally or to represent each strata according to some ratio. For instance, some jurisdictions draw by district strata so that the number of names selected from each district is in proportion to the population of the district as compared with the population of the whole jurisdiction. If the source list equally represented each district, a random selection would equally represent each district, to within a small margin of error. These stratified selections are intended to overcome any unequal representation in the source list or lists. However, before applying such techniques, courts should ensure that they are allowed by some authority.

Measures of randomness can be very complex.¹¹ For this measurement, it is recommended that courts compare several observations with expected values. Although deviations from expectations are in some cases proof of randomness, persistent patterns of nonexpected results should require investigation. For instance:

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: