Is the Sixth Amendment right to a jury that represents a fair cross-section of the community violated where a defendant identifies a specific systematic problem in the jury selection process and establishes that reaching a fair cross section of distinctive groups in the community is statistically unlikely?

Introduction. In Taylor v. Louisiana, 419 U.S. 522, 539 (1975), the Court instructed, “jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Following Taylor, Duren v. Missouri, 489 U.S. 357, 363-64 (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. 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.” The Court in Berghuis v. Smith, 559 U.S. 314 (2010) declined to endorse a specific appropriate measure of disparity when determining whether a defendant was deprived of a fair cross-section of the community. Significantly, Berghuis, recognized that the “ultimate[] dispositive” question to be resolved under Duren on a Sixth Amendment challenge to a jury selection process is: “To the extent under representation existed, was it due to ‘systematic exclusion?” Id. at 330. The question presented here is: 1. Is the Sixth Amendment right to a jury that represents a fair cross-section of the community violated where a defendant identifies a specific systematic i problem in the jury selection process and establishes that reaching a faircross section of distinctive groups in the community is statistically unlikely? ii