Under federal law, each district court must adopt a written plan for the random selection of jurors. The plan must include provisions for the creation of the master jury wheel from which prospective jurors are drawn.123 The procedure must be designed to ensure (1) the random selection of a fair cross section of the community in the district where the court convenes; (2) that the names of persons from all counties or similar political subdivisions within the district are placed in the wheel; and (3) that each political subdivision is proportionately represented.124
Many states have similar systems for creating a master list of qualified persons, and the means by which unlawful distinctions and discriminations in the selection of a jury are to be avoided. Common sources for the names of prospective jurors for the master list include voter registrations, lists of actual voters, and driver license records.125 Then, periodically, a clerk or judge will publicly draw at random the names of as many such persons as are needed for jury service.126
In routine cases, there are several requirements that limit some members of the community from serving as jurors. For example, a potential juror must be a U.S. citizen and at least eighteen years old.127Status as a registered voter or an elector is also a common means of selection for potential jurors. An individual is not qualified to serve on a jury if incapable by reason of mental or physical infirmity to render satisfactory jury service. There is, however, no per se disqualification of a potential juror with a physical or mental impairment, so long as it will not interfere with court service.128 Exclusion of jurors based on gender129 or race130 is prohibited. Many states also have broader criteria, confining the selection of jurors to those possessing sound judgment, fair character, or a general reputation for honesty,131 as well as the ability to understand English.132 Many jurisdictions also bar convicted felons from serving as jurors.133
In addition to the numerous qualifications just listed, there are also excuses, exemptions, and exclusions from jury service. Although some jurisdictions restrict individuals in certain law-related professions from service,134 most do not.135
In a capital murder case, both the state and the defendant may question prospective jurors about their views on capital punishment. Individuals who claim that they would never be able to render a death penalty can be challenged for cause by the prosecutor; those who state that they would always render a death penalty if murder is proven can be challenged for cause by the defense. However, a potential juror may not be removed for cause simply because he or she expresses doubts about capital punishment.136 When selecting a "death-qualified" jury, the proper standard for determining whether a prospective juror should be excluded for cause is whether that person's views on capital punishment would "prevent or substantially impair the performance of his duties as a juror."137
It is fair to say that for much of our history juries have not been representative of our citizenry, particularly with regard to race and gen-der.138 It was only a full century after the adoption of the Constitution that the Supreme Court substantively addressed the matter, and then another several decades before it began to forcefully consider the exclusion of entire classes of individuals from jury service. The two key early cases are Strauder v. West Virginia139 and Ballard v. United States.140
Well over a century ago, in Strauder, the Court considered the constitutionality of a state statute that limited those who could serve as jurors to "white male persons who are twenty-one years of age and who are citizens of this State." The Strauder Court had little difficulty striking down this law as unconstitutionally discriminatory.
That the West Virginia statute respecting juries—the statute that controlled the selection of the grand and petit jury in the case of the plaintiff in error—is such discrimination ought not to be doubted. Nor would it be if the persons excluded by it were white men. . . . [It is] a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.141
While deciding the matter under federal statutory law, the justices made clear that prohibiting nonwhites and women from serving on juries would surely be found unconstitutional. As the Court would later state in Ballard, "The evil lies in the admitted exclusion of an eligible class or group in the community in disregard of the prescribed standards of jury selection. The systematic and intentional exclusion of women . . . deprives the jury system of the broad base it was designed by Congress to have in our democratic society."142
The clear and admitted exclusion of groups of individuals on the basis of race or gender was a relatively simple question for the Supreme Court. Much more difficult problems arise when the exclusion is not explicitly race or gender based. The justices have struggled to define and apply a standard of review of jury composition in those cases. Attempting to determine whether a fair representation of the citizenry is reflected in juries in particular cases is no easy task. This has been especially difficult because the Court has consistently noted that no particular system involving the random selection of jurors is required under the constitutional standards.143 The thinking in the area is best reflected in three key cases.
In Taylor v. Louisiana144 the Supreme Court held that a "representative cross section of the community" is part of a fundamental right to a jury trial under the Sixth Amendment. Thus, a male defendant could demonstrate that the systematic exclusion of women from juries violated his constitutional...
