ZAHRA, J.
This case presents the question whether defendant was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community. A fair-cross-section claim under the Sixth Amendment requires a defendant to make a prima facie case as set forth by the United States Supreme Court in Duren v. Missouri.
The Court of Appeals concluded that defendant had satisfied the three Duren prongs, establishing a violation of his right to an impartial jury drawn from a fair cross section of the community, and granted defendant a new trial. We conclude that the Court of Appeals erred because defendant failed to show under the second prong that the representation of African-Americans in venires from which juries were selected was not fair and reasonable in relation to the number of African-Americans in the community. The Court of Appeals erred in evaluating the second prong in two significant ways.
Second, the Court of Appeals misapplied our decision in People v. Smith.
We hold that when applying all the relevant tests for evaluating the representation data, a court must examine the composition of jury pools or venires over time using the most reliable data available to determine whether representation of a distinct group is fair and reasonable.
A jury convicted defendant of first-degree criminal sexual conduct, MCL 750.520b(1)(e), armed robbery, MCL 750.529, and possession of marijuana, MCL 333.7403(2)(d). The victim testified that when she attempted to buy crack cocaine from defendant, he put a gun to her head and demanded her money. He then ordered her to perform oral sex on him, taking her car keys and telling her that he would not let her leave until she did so.
After the jury was selected, but before it was sworn, defendant made a timely objection to the racial composition of his jury venire. The trial court noted that it observed one African-American and one Latino in defendant's 45-person venire, but decided to reserve its ruling on the objection until a hearing the following day.
At the hearing, the jury clerk testified in regard to the procedure for composing jury pools and venires. According to the jury clerk, the Secretary of State provides the court a list of all the residents of Kent County who are at least 18 years of age and have a valid driver's license or valid state identification. From that list, a computer program randomly selects residents to be sent jury questionnaires. The program then randomly selects jurors to be summoned using the names of those who responded to the jury questionnaire and had not been disqualified or opted out of jury service because of age.
The jury clerk testified that the Secretary of State database does not include the race of the individuals listed and that the computer program does not account for race when selecting jurors. For the date defendant's jury was selected, January 28, 2002, only 132 of the 182 people who had been randomly selected by the computer program and issued jury summonses appeared for service. By the jury clerk's visual inspection, only one was African-American. Of the 132 appearing, the computer program randomly selected 45 people for defendant's venire. The jury clerk also submitted to the trial court the results of voluntary surveys taken by some of those actually appearing for jury duty on given days in January 2002.
Defendant, relying on the results of the voluntary surveys, argued that the disparity of African-Americans appearing for jury duty compared to the African-American population of the county showed that the current jury-selection method did not include a fair cross section of the community. The trial court ultimately denied defendant's challenge to his venire, ruling that because the jury-selection system was race neutral, the underrepresentation of African-Americans was a function of the voluntary failure of those individuals to participate.
Following his conviction and sentencing, defendant appealed. The Court of Appeals majority affirmed in part, but remanded the case to the trial court for an evidentiary hearing regarding defendant's claim that his venire did not reflect a fair
Regarding the third prong, the prosecution admitted that the jury-selection process disproportionately selected jurors from certain zip codes.
On remand, the trial court
The trial court found that Kent County, in an effort to save money spent on software fees, switched in April 2001 from using a vendor's software for summoning jurors to software developed by its information technology department. Rather than drawing from the entire database
For the week that defendant's jury was selected, the court summoned 293 people for jury service. The court specifically summoned 183 of the 293 for January 28, 2002, when defendant's jury was picked. Of the 183 people summoned, 132 appeared and 45 of them were randomly placed in defendant's venire. As noted, the court used voluntary surveys to identify the gender and race of those appearing for jury duty. All 132 potential jurors who appeared on January 28 responded to the voluntary survey, with one individual specifying African-American and one individual specifying multiracial.
Two statistical experts testified at the hearings. First, Dr. Chidi Chidi testified as a statistical expert for defendant. He analyzed the voluntary surveys that potential jurors who appeared completed from 2001 to 2004. Relying on the results of the voluntary surveys, Dr. Chidi concluded that the standard-deviation and comparative-disparity tests proved that there had been systematic exclusion of African-Americans from jury duty. The trial court, however, rejected Dr. Chidi's testimony, finding that Dr. Chidi showed personal bias and a failure to understand basic statistics because he had analyzed only those individuals who opted to answer the voluntary survey after appearing for jury duty.
Given its disapproval of Dr. Chidi's testimony, and pursuant to MRE 706,
From court records, Dr. Stephenson identified the number of jurors summoned from each zip code for each month from January 2002 through March 2002. Dr. Stephenson then used those records and the census data for racial population in each zip code to estimate that, as a result of the zip-code bias, only 163 of the 3,898 summonses (4.17 percent) sent out from
Considering only defendant's venire, Dr. Stephenson calculated that the absolute disparity
Dr. Stephenson also considered the standard-deviation test,
Examining the larger three-month sample, Dr. Stephenson performed further calculations using the binomial results to find that there was essentially "no chance" that the reduced numbers of African-Americans in jury pools between January and March 2002 occurred as a result of random chance. Further, a venire selected during the time the zip-code problem occurred was approximately four times more likely to contain no more than one African-American than if this problem had not been present. He concluded that if the estimates matched actual practice, "a systematic bias did exist in the selection of individuals summoned for jury duty ... [that] inevitably led to the under representation" of African-Americans in the jury pools from January through March 2002.
The trial court also concluded that there was no systematic exclusion under Duren's third prong because there was no evidence that the defective computer setting had any bias. Rather, it simply randomly reduced the number of individuals whom jurors were selected from. Therefore, the end result — that these individuals were taken disproportionately from certain zip codes-was not inherent in the court's jury-selection processes.
On defendant's second appeal, the Court of Appeals concluded in an authored opinion that defendant had established a violation of the Sixth Amendment's fair-cross-section requirement and reversed and remanded the case for a new trial.
First, relying on Dr. Stephenson's calculations for only defendant's venire, the panel stated that the absolute disparity was 6.03 percent. Although acknowledging that such a result does not indicate substantial underrepresentation, the panel declined to find the absolute-disparity test controlling because it viewed it as an ineffective measure of acceptable disparity in circumstances, like this one, in which the group in question makes up a small percentage of the total population.
Next, the panel addressed the comparative-disparity test and acknowledged the
In addition, the panel briefly addressed the standard-deviation test. It concluded that because Dr. Stephenson testified that the test was not appropriate because the normal approximation was not valid and no court has accepted the standard-deviation analysis as determinative in this type of challenge, it had little value here.
Addressing the third prong from Duren, the panel held that the underrepresentation was caused by the systematic exclusion of African-Americans.
The prosecution sought leave to appeal in this Court, which we granted.
Whether defendant was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community is a constitutional question that we review de novo.
The Sixth Amendment of the United States Constitution guarantees a defendant the right to be tried by an impartial jury drawn from a fair cross section of the community.
The defendant in Duren successfully argued that the underrepresentation of women in jury venires violated the fair-cross-section requirement. Regarding the first prong, there was no dispute that women were a distinct group in the community.
Regarding the third prong, the Court concluded that the underrepresentation was a result of the systematic exclusion of the group in the jury-selection process. Specifically, the defendant's statistics, evidence that the selection scheme automatically exempted women from jury service upon their request, and evidence that a large discrepancy had occurred in every weekly venire for almost a year established "that the cause of the underrepresentation was systematic — that is, inherent in the particular jury-selection process utilized."
There is no dispute that African-Americans, the group alleged to be excluded, are a distinct group in the community for the purposes of determining whether there is a violation of the Sixth Amendment's fair-cross-section requirement.
The second prong requires defendant to show that "representation of this group in venires from which juries are selected is not fair and reasonable in relation to the
But in order to properly consider the results of the relevant tests, we must answer the questions we posed in our grant order to identify what data to input into the tests. Specifically, we asked the parties to brief whether in evaluating the second prong, "courts may choose to examine only the composition of the defendant's particular jury venire, or whether courts must always examine the composition of broader pools or arrays of prospective jurors" and "whether a defendant's claim of such underrepresentation must always be supported by hard data, or whether statistical estimates are permissible...."
We hold that when applying the relevant statistical tests, a court must examine the composition of jury pools and venires over time using the most reliable data available to determine whether representation is fair and reasonable. Our reading of Duren compels this conclusion. Specifically, Duren sets forth that the second prong is used to evaluate "representation of [the distinct] group in venires from which juries are selected...."
Consequently, the Court of Appeals wrongly considered the results of the tests from a data set that included only defendant's venire. Relying solely on the composition of defendant's venire resulted in misleading and exaggerated results.
In addition, evaluating the representation of a distinct group in venires over time requires using the most reliable data available to input into the relevant tests. In this case, hard data regarding the race of those sent questionnaires or appearing for jury service are not available for two primary reasons. First, the Secretary of State did not include the racial identity of individuals in the potential-juror database that was provided to Kent County, and thus the court's computer program did not include a record of the race of the individuals who were selected. Second, the voluntary surveys that the court made available to potential jurors who appeared for jury service, which included a section in which those persons could identify their race, were plagued by wildly inconsistent participation and therefore do not provide a meaningful data set.
The circuit court did keep records of the zip code of each person sent a jury summons. Reviewing and using those records for the period from January through March 2002, Dr. Stephenson, a statistical expert, was able to estimate, using the racial makeup of each zip code from the census data, the number of African-Americans who had been summoned for jury service from January through March 2002. Given the available zip-code data and the limitations regarding the other potential data sources, it is appropriate to evaluate venire composition using Dr. Stephenson's statistical estimate.
Dr. Stephenson estimated that 4.17 percent of the summonses issued were sent to African-Americans from January through March 2002. Given that the census data reflects that the jury-age population of African-Americans in the community is 8.25 percent, it is clear that African-Americans were underrepresented. The pertinent question then is whether this underrepresentation in the composition of jury pools and venires during this time was nonetheless fair and reasonable.
The absolute-disparity test is the most widely applied test and is used by the majority of jurisdictions to evaluate whether the representation of a distinct group was fair and reasonable.
Given that the Kent County African-American jury-age population figure is 8.25 percent and the percentage of African-Americans sent jury summonses from January through March 2002 was 4.17 percent, the absolute disparity is 4.08 percent.
Some courts have used the comparative-disparity test, which measures "the decreased likelihood that members of an underrepresented group will be called for jury service...."
The Court of Appeals, after disfavoring the result of the absolute-disparity test because the percentage of the distinct group in the relevant community was low, effectively established a bright-line rule favoring the comparative-disparity test when the population of the distinct group is small. This holding directly contradicts the case-by-case approach set forth in Smith.
The Court of Appeals further erred when it considered the 73.1 percent result of the comparative-disparity test for only defendant's venire. Using the proper data from Dr. Stephenson's three-month examination of venires, the comparative-disparity
In United States v. Rogers, a 30.96 percent comparative disparity was deemed significant by an Eighth Circuit panel, but this determination was made in dicta as the panel was bound by earlier Eighth Circuit precedent regarding the particular jury system under review.
The standard-deviation test, also known as the statistical-significance test, calculates the probability that the observed underrepresentation of the distinct group was the result of chance.
It is unsurprising that no court has ever accepted the result of this test alone as determinative in this type of challenge because the test in effect has nothing to do with the evaluation of the second prong. That is, whether the degree of underrepresentation is statistically significant and not the result of chance does not inform whether the level of representation is fair and reasonable.
Further, Dr. Stephenson concluded that it was inappropriate to apply the standard-deviation test in this case because the normal approximation was not valid. He did, however, apply a related test to determine that the extent of underrepresentation from January through March 2002 was not the result of random chance. Nonetheless, all we garner from the result is just that — the underrepresentation was not a random occurrence. The mere fact that the under-representation was not the result of random chance does not establish that it was not fair and reasonable. Thus, we afford the result of this test no weight.
Another test that is sometimes discussed is the disparity-of-risk test.
Although this test is not new, the primary reason for its disfavor is because it has yet to garner approval from any court.
Unlike the absolute-disparity test and the comparative-disparity test, courts have not considered the appropriate threshold under which the disparity of risk should be deemed fair and reasonable. We believe the normative line should be drawn at 50 percent.
Given the results of the foregoing tests, defendant has failed to show that the representation of African-Americans in the venires at issue was not fair and reasonable. Instead, the results of the absolute-disparity test, comparative-disparity test, and disparity-of-risk test all support the opposite conclusion: that the representation of African-Americans was fair and reasonable. Accordingly, we conclude that defendant did not make out a prima facie case for his Sixth Amendment fair-cross-section claims. Notwithstanding our conclusion on this determinative issue, we will address the third prong in order to consider the argument that a defendant who shows systematic exclusion under the third prong is entitled to make a lesser showing under the second prong.
The third Duren prong requires a defendant to show that "this underrepresentation is due to systematic exclusion of the group in the jury-selection process."
The evidence here shows that a computer programming error in the computer software used to randomly select potential jurors from the Secretary of State database of names of eligible jurors in Kent County truncated that database of names from 453,414 eligible jurors to 118,169. The smaller list of names was used to randomly select potential jurors. This list, however, disproportionately included more individuals in certain zip codes and fewer from other zip codes. The underrepresented zip codes on the whole had higher concentrations of African-Americans. Thus, the computer program error, which was the cause of the systematic exclusion, was one that was "inherent" in the computer program, which was "the particular jury-selection process utilized" to select potential jurors for service.
It is irrelevant for the purpose of this analysis that the computer error was not intentional and was corrected upon its discovery because under the third prong "systematic disproportion itself demonstrates an infringement of the defendant's interest in a jury chosen from a fair community cross section."
In lowering the threshold of the second prong in circumstances in which the level of disparity was the result of nonbenign circumstances, the Hubbard panel erroneously assumed that the underrepresentation contemplated by the second Duren prong depends in part on the reason for the underrepresentation. The reason for the underrepresentation is the basis of the third prong, and the only issue in the second prong is whether the degree of underrepresentation is acceptable. In other words, Duren requires satisfaction of three distinct prongs. An approach that arbitrarily gives a defendant the benefit of the doubt on the second prong vitiates the three-part analysis. Even if a defendant can show underrepresentation that was systematic, a defendant must show that the extent of any underrepresentation was not fair and reasonable. Moreover, it would be inconsistent to conclude that a certain level of underrepresentation that would otherwise be fair and reasonable absent systematic exclusion is suddenly not fair and reasonable because the cause of the underrepresentation is nonbenign.
Additionally, Hubbard's rationale for adopting the approach set forth in United States v. Osorio
This case presented the issue whether defendant was denied his Sixth Amendment
YOUNG, C.J., and MARKMAN and MARY BETH KELLY, JJ., concurred with ZAHRA, J.
MARKMAN, J. (concurring).
I join in the majority opinion, which reasonably applies the test governing the Sixth Amendment's "fair cross section" requirement, as articulated by the United States Supreme Court in Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). I write separately only because I have questions concerning both Duren's test and the constitutional standard toward which this test is directed.
The Sixth Amendment guarantees criminal defendants the right to a trial "by an impartial jury...." In Taylor v. Louisiana, 419 U.S. 522, 526, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Supreme Court determined that "the presence of a fair cross section of the community on venires, panels, or lists from which petit juries are drawn is essential to the fulfillment" of this constitutional guarantee. The "fair cross section" requirement is satisfied as long as "distinctive" groups are reasonably represented on the jury venire; however, it does not entitle a defendant to a jury whose composition is proportional to that group's presence within the community from which the venire is chosen. As Taylor emphasized:
Under the "fair cross section" analysis, it is unnecessary for a defendant to show that the lack of "reasonable representation" of a "distinctive" group is the result of discrimination in the jury-selection system, as would be required under the Equal Protection Clause of the Fourteenth Amendment. See, e.g., Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). Rather, in "fair-cross-section cases, systematic disproportion itself demonstrates an infringement of the defendant's interest in a jury chosen from a fair community cross section." Duren, 439 U.S. at 368 n. 26, 99 S.Ct. 664 (emphasis added). So the critical constitutional inquiry appears to be directed toward the extent or magnitude of the "systematic disproportion." While "proportional" representation of "distinctive" groups is not required, what constitutes "proportional" representation must nonetheless be constantly borne in mind so that the level of "disproportion" can be calculated because, at some uncertain point, a level of "disproportion" that is apparently constitutionally acceptable is transformed into a level of "disproportion" that breaches the Sixth Amendment. And it is the responsibility of this Court to determine on a "case by case" basis when that point of transformation occurs, principally through the application of myriad statistical tests, some of which have been given the explicit imprimatur of the United States Supreme Court and others of which have not, but at the same time have not been repudiated, in light of the apparent nonexclusivity of the approved tests.
The dispositive question in this case concerns the second part of Duren's test — i.e., whether the representation of African-Americans in venires from which juries were selected in Kent County during the period in which defendant was tried and convicted is "fair and reasonable in relation to the number of such persons in the community." Id.
To determine whether representation is "fair and reasonable" under the Duren test, courts have applied yet more tests. In People v. Smith, 463 Mich. 199, 615 N.W.2d 1 (2000), this Court discussed three statistical tests that have been used to measure whether representation of a "distinctive" group in the jury pool is "fair and reasonable": the "absolute disparity" test, the "comparative disparity" test, and the "standard deviation" test. Recognizing that all three tests are imperfect and susceptible to criticisms, Smith held:
After a decision on habeas corpus review by the United States Court of Appeals for the Sixth Circuit asserting that Smith constituted an "unreasonable" application of "clearly established federal law," Smith v. Berghuis, 543 F.3d 326, 329, 334 (C.A.6, 2008), the United States Supreme Court unanimously reversed the Sixth Circuit, holding that "neither Duren nor any other decision of this Court specifies the method or test courts must use to measure the representation of distinctive groups in jury pools." Berghuis v. Smith, 559 U.S. ___, ___, 130 S.Ct. 1382, 1393, 176 L.Ed.2d 249 (2010). Noting that "[e]ach test is imperfect," the Supreme Court declined "to take sides today on the method or methods by which underrepresentation is appropriately measured." Id. at ___, 130 S.Ct. at 1393-1394.
Given this state of the law, I join the majority opinion because it engages in a reasoned application of the relevant decisions of the United States Supreme Court and this Court. Consistently with the approach outlined in our decision in Smith, the majority opinion considers the results of all three tests for which the parties have proffered evidence in determining whether the representation of African-Americans, the "distinctive" group in question, was "fair and reasonable" in Kent County venires. Specifically, the majority opinion considers the results of the "absolute disparity" and the "comparative disparity" tests, as well as those of an additional test, the "disparity of risk" test,
That said, the fact that both sides have sought reasonably and in good faith to apply Duren underscores questions concerning Duren's test itself. These largely arise from the sense that in applying Duren, this Court seems to me engaged more in the judicial equivalent of a Rorschach test, an essentially standardless inquiry in which judicial conclusions are indicative more of personal judgments concerning the "fairness and reasonableness" of the Kent County venire than in the application of any discernible constitutional command.
In particular, I am concerned about the statistical tests used to determine whether Duren's second part has been satisfied. The limitations of these tests have been widely noted, see, e.g., Berghuis, 559 U.S. at ___, 130 S.Ct. at 1393; ante at 136; post at 150, and need not be revisited here. It suffices to say that when, as here, members of the "distinctive" group comprise only a relatively small percentage of the community's jury-eligible population, one test arguably makes it difficult for a defendant to ever satisfy the requisite showing of "underrepresentation," another arguably exaggerates this "underrepresentation," and the third appears to be generally disfavored because it does not constitute an appropriate measure of anything obviously relevant to a determination whether the level of representation on the venires was "fair and reasonable." In light of these deficiencies, how do the results of these tests, either considered individually or collectively, usefully illuminate whether representation was "fair and reasonable"? How do the bench and bar draw a meaningful legal conclusion from the application of these tests to the available statistical data? How rational, and how flexible, are the statistical thresholds that have been established by some courts in distinguishing between "underrepresentations" that are compatible with a "fair cross section," and those that are not? To what extent, if any, may these thresholds be raised or lowered, as a function of the nature or the degree of any "systematic exclusion" under the third part of Duren, or must these parts be analyzed entirely discretely? To what extent, if any, should these thresholds be raised or lowered by Fourteenth Amendment considerations of discriminatory purpose or intention, or are those considerations simply irrelevant to the "fair and reasonable" analysis under the Sixth Amendment? To what extent are these thresholds emblematic of what the dissent in Duren predicted would become a mere "constitutional numbers game," Duren, 439 U.S. at 375, 99 S.Ct. 664 (Rehnquist, J., dissenting), or do these effectively communicate some independent reality as to what is required by the Constitution? Existing statistical tests and thresholds certainly provide one means by
However, perhaps an even more fundamental question is also raised here — why certain statistical tests and not others? The United States Supreme Court has acknowledged that the three tests described in Smith are each imperfect, Berghuis, 559 U.S. at ___, 130 S.Ct. at 1393, and has declined "to take sides today on the method or methods by which underrepresentation is appropriately measured," id. at ___, 130 S.Ct. at 1393-1394. Doubtless, there is no end to statistical tests by which a court might seek to compare various-sized populations of "distinctive" groups within a community and their representation on venires. Equally doubtless, as evidenced in this very case, tests can be devised that will tend both toward sustaining and repudiating a finding of "underrepresentation." Is the new "disparity of risk" test a genuinely valid means of adducing the existence of a Sixth Amendment violation, or are the dissenting justices correct that it "neither improves nor clarifies this area of the law"? Post at 154. What are the standards by which this Court can discern which tests are relevant in identifying Sixth Amendment violations? And what is the relevance of the fact that some tests might point in one direction regarding the second Duren part, and others might point in the opposite direction? Does this suggest that these tests are asking and answering different questions, or that one test is asking and answering the wrong question? How do judges test the tests to ensure that the right question is being asked? When tests differ in their results, how are these results to be reconciled in answering the ultimate constitutional question? May the court compare and contrast the degree or extent to which different tests deviate from thresholds distinguishing acceptable and unacceptable levels of statistical disparity? Is the court simply free to choose at its discretion among such conflicting tests? If there is some actual decision-making standard in selecting among conflicting tests, what is it? If such a standard has anything to do with determining which test better identifies "fair and reasonable" representation of "distinctive" groups in venires, then is this not a Catch-22 tautology, to wit, in choosing among tests that best identify the absence of "fair and reasonable" representation, a court must employ the test that best identifies
These and related questions concern the meaning of Smith's directive that courts must "consider all ... approaches to measuring whether representation was fair and reasonable...." Smith, 463 Mich. at 204, 615 N.W.2d 1 (emphasis added). Indeed, very different conceptions of this obligation are reflected in the majority and dissenting opinions. Justice MARILYN KELLY argues that the Court of Appeals below "properly considered the results of all tests [including the absolute-disparity test], but decided that the comparative disparity test was `the most appropriate test to measure underrepresentation in this case,'" post at 157, quoting People v. Bryant, 289 Mich.App. 260, 271, 796 N.W.2d 135 (2010), while the majority concludes that Smith requires more than simply alluding to a test and then failing to "consider" it. One might think that such a difference of opinion could be easily resolved if there were some clear sense regarding why a particular test is or is not "appropriate" in furthering our understanding of whether "fair and reasonable" representation has been achieved, which, of course, would require a clear understanding of what is meant by "fair and reasonable" representation, which in turn would require a clear understanding of whether the constitutional task at hand is simply to calculate the divergence of actual representation on the venire from the "ideal" of proportional representation (an ideal certainly implied by the Duren concept of "underrepresentation")
That is, even if I could clearly answer each of the aforementioned questions, and knew which tests to "consider" and how to give legal import to their results, it still would be difficult to apply Duren because the ultimate constitutional standard to which it is directed remains unclear. I know what the constitutional standard in "fair cross section" cases is not. It is not an equal-protection standard under which any "underrepresentation" resulting from intentional or purposeful discrimination in the jury venire is prohibited by the Constitution. See Taylor, 419 U.S. at 526-528, 95 S.Ct. 692; Duren, 439 U.S. at 368 n. 26, 99 S.Ct. 664. And it is not a "proportional" representation standard under which any systematic exclusion that results in the "underrepresentation" of a "distinctive" group is prohibited by the Constitution, Taylor, 419 U.S. at 538, 95 S.Ct. 692; Duren, 439 U.S. at 364, 99 S.Ct. 664-although references by the Supreme Court to "underrepresentation," "disproportion," and "representative[ness]" would certainly cause some judges to look in precisely that direction, absent the Court's admonition to the contrary. Thus, the "fair cross section" requirement, which purports to eschew both principles of nondiscrimination and proportional representation, must be premised on some alternative standard drawn from the Sixth Amendment's guarantee of an "impartial jury." See Taylor, 419 U.S. at 526, 95 S.Ct. 692. But see Berghuis, 559 U.S. at ___, 130 S.Ct. at 1396 (Thomas, J., concurring) (arguing that the fair-cross-section requirement "rests less on the Sixth Amendment than on an `amalgamation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment'") (citations omitted).
Thus, some amount of "underrepresentation" is "fair and reasonable" and some amount is not, and the courts are to choose where the line is to be drawn. The problem is not that judges are ill equipped to determine what is "fair and reasonable," as such inquiries are made daily by judges in other constitutional contexts. In the context of the Duren test, however, there is no agreed-upon standard or "ideal" by which to measure the constitutional mandate of an "impartial jury" at the venire stage. The United States Supreme Court has stated that proportionality constitutes one relevant measure, but that it is also not required in order to satisfy the Constitution, which leads to uncertainty because there is also no agreed-upon standard by which to measure how close a venire must come to proportionality, or indeed even how one measures proportionality. What "systemic," but nondiscriminatory, deviations are acceptable under the Constitution, and what "systemic," but nondiscriminatory, deviations are not? Given this lack of clear external standards and the wealth of divergent statistical measurements available, how can a judge ensure that his or her own private sensibilities concerning what is "fair and reasonable" in the make-up of the venire do not come to prevail over what is required by the Constitution and that statistical tests do not come to be selected, and standards for evaluating their results not come to be adopted, that merely tend to match those sensibilities? Focusing exclusively
In the end, many trial and appellate judges have reviewed this case, and the question whether the venire here was "fair and reasonable" has closely divided them in favor of a negative response. While I have no doubt that each of these judges has addressed the question in this case "fairly and reasonably," and in accordance with his or her own best understanding of Duren, there seems to be little in the way of a coherent constitutional standard that distinguishes between "systematic exclusions" that violate the Constitution and "systematic exclusions" that do not, much less a clear statistical method for giving effect to this constitutional standard. And as a result, I believe that our decision-making in this realm resembles uncomfortably a judicial Rorschach test, in which the judge is ultimately required to look inward in determining what is "fair and reasonable," rather than outward to a comprehensible constitutional rule of law. In joining the majority opinion, and despite what I believe to be confusion concerning aspects of the Duren test, I have sought to the best of my understanding of what is required by the United States Supreme Court to give reasonable meaning to this test and to the guarantees of the Constitution.
Dissenting Opinion by CAVANAGH, J.
CAVANAGH, J. (dissenting).
I respectfully dissent because I do not think that the Court of Appeals clearly erred by concluding that defendant is entitled to a new trial under the unique facts presented in this case.
I agree with Justice MARILYN KELLY that courts have not always applied Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), with precision and that reasonable minds can disagree regarding the proper application of Duren. Regardless of the debate raised in this case, however, I agree with Justice KELLY that defendant is nevertheless entitled to relief, even if a broader time frame for evaluating Duren's second prong is considered.
As I explained in People v. Smith, 463 Mich. 199, 216, 222, 615 N.W.2d 1 (2000) (CAVANAGH, J., concurring), the approach taken by the Court of Appeals in People v. Hubbard (After Remand), 217 Mich.App. 459, 552 N.W.2d 493 (1996), should be a relevant consideration in determining whether unfair and unreasonable underrepresentation has been shown. Specifically, "[w]hen the showing of underrepresentation is close, or none of the methods of analysis are particularly well-suited to a case," I believe courts should "glance ahead" to Duren's third prong and consider a defendant's evidence of systematic exclusion. Smith, 463 Mich. at 222, 615 N.W.2d 1. Under this approach, if the jury-selection process appears likely to systematically exclude a distinctive group, that is, the jury-selection process bears the mark of a nonbenign influence, a court may give a defendant the benefit of the doubt on underrepresentation. Id. at 218, 222-224, 615 N.W.2d 1. Applying this approach to the facts of this case, I agree with Justice KELLY'S
The majority's decision to hastily adopt the "disparity of risk" test has also given me pause, when, as Justice KELLY aptly observes, the test was not addressed by the lower courts, was not briefed or argued to this Court, and, as the majority concedes, has not been endorsed by any court in the country. Thus, because the substantive merits of the disparity-of-risk test and the majority's 50 percent threshold
Accordingly, I respectfully dissent.
Dissenting Opinion by MARILYN KELLY, J.
MARILYN KELLY, J. (dissenting).
I concur with the majority that defendant satisfied the first and third prongs of the test for a fair-cross-section violation of the Sixth Amendment under Duren v. Missouri.
The Court of Appeals used existing law and, for the most part, applied it properly. The majority opinion imputes error where there is none. Worse, it sua sponte introduces a "disparity of risk" test not accepted by any court in the country. The analysis the majority has set forth today neither improves nor clarifies this area of the law.
The majority concludes that the Court of Appeals erred in two ways when evaluating the second prong of Duren. First, it considered the representation of African-Americans only in defendant's venire, not in multiple venires over time. Second, it misapplied our decision in People v. Smith
I generally agree with the majority that, under Duren, courts must consider the composition of venires over time. The Court of Appeals considered the specific disparity in the composition of defendant's venire when evaluating the second Duren prong. And it considered multiple venires over time when applying the third Duren prong.
Other cases that the majority cites do not conclusively demonstrate that the composition of multiple venires over time must be considered under the second Duren prong rather than the third. To the contrary, these cases seem to stand for the uncontroversial proposition that a defendant must show underrepresentation in multiple venires over time to satisfy the Duren test generally.
Thus, the Court of Appeals did not err by using the comparative disparity in defendant's venire-73.1 percent — when applying the second prong of Duren.
The majority's second criticism of the Court of Appeals' opinion is that it supposedly established "a bright-line rule favoring the comparative-disparity test" and disregarded the results of the other tests.
The Court of Appeals did consider the results of both the absolute-disparity test and the standard-deviation test, but found both unhelpful to resolving defendant's appeal.
Moreover, in what respect does the majority think that the Court of Appeals should have further "regarded" the results of the absolute-disparity test? The panel correctly recognized that if the absolute-disparity test controlled, a successful Sixth Amendment fair-cross-section challenge would be impossible in cases like this one in which the minority population is small. Even the expert who testified at the evidentiary hearing concluded that an analysis of absolute disparity is not a viable method of measuring underrepresentation in this case. Thus, I cannot see what further insight the majority believes that the Court of Appeals should have divined from the results of the absolute-disparity test.
When discussing the results of the standard-deviation test, the majority makes precisely the same error that it accuses the Court of Appeals of making. It notes the flaws in the standard-deviation test and decides to "afford the result of this test no weight."
Finally, I cannot agree with the majority's importation of a fourth test — its disparity-of-risk test — into this appeal. First, no party or amicus curiae mentioned the disparity-of-risk test, let alone requested that we adopt it. Thus, the test was not properly considered by the parties or the courts below.
I believe that my analysis dispels the majority's findings of error by the Court of Appeals and demonstrates that the Court of Appeals correctly analyzed this case. The majority's sole remaining basis for reversing the Court of Appeals' judgment is its disagreement with that court's reliance on People v. Hubbard (After Remand).
Accordingly, I would follow Hubbard, as Justice CAVANAGH advocated in his concurring opinion in Smith.
Because defendant established that systematic exclusion occurred and "the showing of underrepresentation is close,"
Finally, we must not lose sight of the fact that the right at issue here — the right to a jury trial — is the cornerstone of the American justice system.
For these reasons, I believe that the Court of Appeals correctly reversed defendant's convictions and remanded for a new trial. I would affirm its judgment.
HATHAWAY, J., concurred with MARILYN KELLY, J.
The parties shall include among the issues to be briefed: (1) whether, in evaluating whether a distinctive group has been sufficiently underrepresented under Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), so as to violate the Sixth Amendment's fair cross-section requirement, courts may choose to examine only the composition of the defendant's particular jury venire, or whether courts must always examine the composition of broader pools or arrays of prospective jurors; (2) whether a defendant's claim of such underrepresentation must always be supported by hard data, or whether statistical estimates are permissible and, if so, under what circumstances; and (3) whether any underrepresentation of African-Americans in the defendant's venire, or in Kent County jury pools between 2001 and 2002, was the result of systematic exclusion under the third prong of Duren. [Id.]
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. [U.S. Const., Am. VI.]
Although the text of the Sixth Amendment only provides in reference to a jury "the right to ... an impartial jury," the United States Supreme Court has ascribed to that right that the jury must be drawn from sources reflecting a fair cross section of the community in order to effectuate the purpose of a jury: "guard[ing] against the exercise of arbitrary power [by making] available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), citing Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). We are cognizant that there is a reasonable argument that fair-cross-section claims should be exclusively evaluated under the Equal Protection Clause of the Fourteenth Amendment, not the Sixth Amendment, see Berghuis, 559 U.S. at ___, 130 S.Ct. at 1396 (Thomas, J., concurring), but we will not consider such an argument because we are bound by the United States Supreme Court's decisions evaluating this claim under the Sixth Amendment, see Taylor, 419 U.S. at 526, 95 S.Ct. 692; see also Duncan, 391 U.S. at 154-155, 88 S.Ct. 1444 (incorporating the right to a jury trial in the Sixth Amendment to the states through the Due Process Clause of the Fourteenth Amendment).
Despite our straightforward reading of Duren and this supporting authority, in her dissent Justice MARILYN KELLY disagrees that the second prong requires a pattern of underrepresentation over time. She does so while choosing not to address the language in Duren that compels this treatment of the second prong. She also attempts to critique some of our supporting caselaw by ignoring that those same cases explicitly support our reading of Duren's second prong. Moreover, some of the cases she cites do not even contain a substantive discussion of the second prong, while no case that she cites actually concludes that the second prong may be satisfied by a showing of underrepresentation in only a particular defendant's venire.
In addition, contrary to Justice KELLY's suggestion, our approach does not ignore defendant's venire under the second prong. Instead, we merely follow Duren by including it in the data set of venires used to calculate the degree of underrepresentation. See Duren, 439 U.S. at 362-366, 99 S.Ct. 664 (considering under the second prong a data set that included January through March 1976, when the defendant's trial began in March 1976). Of course, as in Duren, 439 U.S. at 363, 99 S.Ct. 664, the distinct group was underrepresented in defendant's individual venire, giving rise to this claim in the first place. But Duren reflects that such underrepresentation does not amount to a constitutional fair-cross-section violation without a showing that includes the degree of underrepresentation over time under the second prong. Thus, defendant's venire is simply part of the larger statistical presentation in this analysis.
Yet the comparative disparity test lacks the absolute disparity test's awareness of what fraction of the total [population] has been tampered with. For example, when all African Americans are absent from venires, the result is the highest possible comparative disparity score, 100%. But that figure is useless unless one also accounts for how many African Americans are in the overall population. If the total population is majority African American, then the observed underrepresentation would reduce the odds of drawing an African American juryperson from near certainty to total impossibility. If, on the other hand, African Americans comprise just 0.1% of the total population, then the likelihood of drawing an African American would not have significantly declined. Thus, despite its support among prominent commentators, the comparative disparity test, like the absolute disparity test, simply does not measure the probabilistic injuries generated by fair cross-section violations. [Jury Poker, 8 Ohio St J Crim L at 545-546.]
[T]he question answered by [the standard-deviation test], while an interesting one, is not the appropriate one for a fair cross-section analysis. The probability that the composition of a jury wheel arose by random selection from the community is not directly related to the defendant's chances of drawing a jury of a certain composition. [Measuring underrepresentation, 103 Yale L J at 1928.]
--------------------------------------- Prob (x) Prob (x) When p = 0.0825 When p = 0.0417 x and n = 12 and n = 12 --------------------------------------- 0 0.3559 0.5998 --------------------------------------- 1 0.3840 0.3132 --------------------------------------- 2 0.1899 0.0750 --------------------------------------- 3 0.0569 0.0109 --------------------------------------- 4 0.0115 0.0011 --------------------------------------- 5 0.0017 0.00007 --------------------------------------- 6 0.00002 0.00000 --------------------------------------- 7 0.00001 0.00000 --------------------------------------- 8 0.00000 0.00000 --------------------------------------- 9 0.00000 0.00000 --------------------------------------- 10 0.00000 0.00000 --------------------------------------- 11 0.00000 0.00000 ---------------------------------------
To take an example from these results, a 12-person jury drawn from a pool proportionate to the actual population of African-Americans in Kent County (8.25 percent) would be expected to have one African-American 38.4 percent of the time, while a 12-person jury drawn from a pool containing 4.17 percent African-Americans would be expected to have one African-American 31.32 percent of the time. For a more detailed mathematical description of the binomial theorem see Jury poker, 8 Ohio St J Crim L at 537 n 25.
In any randomly drawn 12-person jury drawn from a pool exactly proportionate to Kent County's African-American population as a whole (8.25 percent), a defendant can expect no African-Americans on the jury 35.59 percent of the time. This is called the "ideal risk" because it measures the probability of a particular result without underrepresentation. However, when randomly drawing from the disproportionate jury pool that occurred in this case (4.17 percent African-American), the probability of a 12-person jury containing no African-Americans rises to 59.98 percent. This is called the "actual risk" because it measures the probability of a particular result given the actual underrepresentation. With a 4.17 percent representation rate, a defendant would expect to have no African-Americans on a 12-person jury 59.98 percent of the time. The disparity-of-risk test, thus, calculates the difference between the ideal risk (35.39 percent) and the actual risk (59.98 percent), resulting in a disparity of risk of 24.39 percent.
In any event, for reasons explained later in this opinion, I conclude that defendant established a Sixth Amendment fair-cross-section violation even if I use the three-month comparative disparity of 49.4 percent.