Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Confusing It with Equal Protection

Nina W. Chernoff

Volume 64, Issue 1, 141-200

This Article exposes a surprising doctrinal distortion that has unfolded since the Supreme Court first established the Sixth Amendment standard for the right to a jury selected from a fair cross-section of the community. A significant number of courts are erroneously applying the test for a violation of the Fourteenth Amendment’s equal protection guarantee to Sixth Amendment claims. As a result, criminal defendants are being deprived of the unique Sixth Amendment fair cross-section right, which encompasses more than just protection from discrimination.

Under the Sixth Amendment, a defendant need not allege that any state actor discriminated in the jury selection process. Instead, a defendant can establish a prima facie violation by showing that the underrepresentation of a distinctive group in the jury pool is inherent in the selection process, whether by accident or design. The equal protection clause, in contrast, demands evidence of discriminatory intent.

This Article reveals that at least ten federal circuits and nineteen states have erroneously denied defendants’ Sixth Amendment claims for failure to satisfy the Fourteenth Amendment’s discrimination requirement. This Article also uses an original survey of federal and state cases to explore the potential scope of the problem. In over one-third of the relevant cases, courts denied defendants’ fair cross-section claims for failing to meet equal protection standards.

In contrast to scholarship arguing that the underpinnings of the fair cross-section standard need to be revisited, this Article asserts that the key to enforcing the cross-section guarantee is not to change the standard, but to apply it consistently with the Sixth Amendment and Supreme Court doctrine.

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