New York University Law Review
One of the main and ongoing problems plaguing the American jury system has been ensuring that juries in civil and criminal trials are truly representative of the communities in which they serve. Historically, minorities have been disproportionately excluded from jury service. This shortfall results from a combination of factors at each stage of the juror identification process. At the jury pool stage, juror notification methods often fail to identify or reach minorities for tie simple reason that minorities generally are poorer and more transient. At the venire stage, those minorities who actually receive notification report to the courthouse at a lower rate than the majority because they ignore the summons and claim hardship more often. Finally, at the petit jury stage, prosecutors and other litigants typically eliminate most if not all, minority venirepersons through the use of both peremptory and for cause strikes. Authors Edward Adams and Christian Lane take on this problem of underrepresentation on juries by focusing on tie latter stage of jury selection—the use of peremptory strikes. They argue that prosecutors often use peremptories in a discriminatory manner to eliminate potential jurors based on their race. The authors argue that although it intended to remedy tie striking of minority venirepersons for racial reasons, the Supreme Court in Batson v. Kentucky failed to deter the practice effectively. Batson prohibits the striking of jurors based on race, but allows the use of peremptory challenges with a "race neutral" explanation. Dean Adams and Mr. Lane propose a new method of jury selection which dispenses with peremptory challenges and which, they assert, will rid the jury selection process of discrimination. Borrowing a concept front corporate law, they propose a new method based on a cumulative voting model The authors contend that this new method for impaneling juries is free of the pitfalls that plague the current system and other alternative proposals. They argue that adopting their method will result in more representative juries.
Edward S. Adams and Christian J. Lane, Constructing a Jury that Is Both Impartial and Representative: Utilizing Cumulative Voting in Jury Selection, 73 N.Y.U. L. Rev. 703 (1998), available at http://scholarship.law.umn.edu/faculty_articles/393.