New York University Public Law and Legal Theory Working Papers

Document Type



Hastings Law Journal, Forthcoming


Over thirty years ago the Supreme Court established the standard for a violation of the Sixth Amendment right to a jury selected from a fair cross-section of the community. Today the most consistent conclusion one can reach about fair cross-section claims is that they are unsuccessful. This Article asserts that a surprising number of Sixth Amendment claims are being denied because courts are erroneously applying the test for a violation of the Fourteenth Amendment’s equal protection guarantee. As a result, criminal defendants are being deprived of the unique Sixth Amendment fair cross-section right, which extends beyond the Fourteenth Amendment’s protection from discrimination.

Under the Sixth Amendment, a defendant does not need to 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 jury selection process, whether by accident or design. The equal protection clause, in contrast, demands evidence of discriminatory intent.

This Article reveals that at least eight federal circuits and twenty-eight states have erroneously denied defendants’ Sixth Amendment claims for failure to satisfy the equal protection requirement of discriminatory intent. This Article also uses an original survey of federal and state fair cross-section cases to explore the potential scope of the problem for the first time. Courts denied defendants’ cross-section claims for failure to meet equal protection standards in over one-third of the cases surveyed. In contrast to scholarship arguing that the fair cross-section standard needs to be revisited, this Article asserts that the anemic application of the Sixth Amendment guarantee results not from weaknesses in the underpinnings of the right or the test for enforcing it, but rather from courts’ routine importation of equal protection standards into the analysis. The key to enforcing the fair cross-section guarantee for criminal defendants is not to change the standard, but to apply it consistently with the demands of the Sixth Amendment and Supreme Court doctrine.

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