Whether Duren's 'systematic exclusion' prong can be satisfied by proof of consistent underrepresentation or requires evidence of specific discriminatory procedures or intent

QUESTION PRESENTED Duren v. Missouri, 439 U.S. 357 (1979), announced a three-part test for establishing a prima facie violation of a right embodied in the Sixth Amendment: the right to a jury drawn from a fair cross-section of the community. Berghuis v. Smith, 559 U.S. 314, 319 (2010). The “defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (8) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren, 439 U.S. at 364. The question presented is: Whether Duren’s “systematic exclusion” prong can be satisfied by proof that a distinctive group has been consistently underrepresented in the juryselection process over a long period—or instead requires evidence of specific procedures causing the disparity, or evidence of discriminatory intent in those procedures—an issue that divides both the federal courts of appeals and the state courts of last resort. i