Lawson A. Wright (Princeton University) has posted The Original Impartial Jury: Replacing the Fair Cross-Section Test with the Sixth Amendment’s Original Impartial Venire Selection Rule on SSRN. Here is the abstract:
Since Taylor v. Louisiana, the Supreme Court has interpreted the Sixth Amendment’s guarantee of an “impartial jury” to require that jury pools reflect a fair cross-section of the community. That doctrine has largely escaped the Court’s originalist revolution, even though it is difficult to reconcile with the Sixth Amendment’s history and original meaning. But if the Court were to reconsider the Impartial Jury Clause and abandon the fair cross-section test, a critical question would remain: what rule should take its place?
This Article answers that question. Drawing on English common law, colonial practice, Founding-era state law, early American cases, and treatise evidence, this Article contends that the original public meaning of the Impartial Jury Clause protected criminal defendants from two distinct forms of partiality: partial jurors and partial jury venire selectors. While modern doctrine already addresses the former, it has largely lost sight of the latter. At common law and in early American practice, litigants could challenge not only biased jurors, but also sheriffs and other officers whose partiality was understood to presumptively corrupt the venire. At the same time, governments retained broad authority to impose neutral, non-pretextual qualifications for jury service, including categorical exclusions based on property, status, occupation, and other criteria. The Sixth Amendment therefore did not require representative jury pools; it required impartially selected ones.
Analogizing from the sheriff to modern selection regimes, this Article argues that the Sixth Amendment’s original meaning requires replacing the fair cross-section test with a rule focused on whether procedures or requirements are designed to advantage a particular litigant, including the government, or a class of litigants.
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