Re-Justifying the Fair Cross Section Requirement: Equal Representation and Enfranchisement in the American Criminal Jury

Richard Re, Yale Law School

Abstract

This essay proposes a new justification for the fair cross section (FCS) requirement governing criminal jury composition. While the Supreme Court has defended the requirement by invoking demographic conceptions of the jury’s legitimacy, many scholars have observed that this approach is at odds with contemporary jury law and practice. This essay argues that courts should instead defend the FCS requirement as a means of ensuring that eligible participants are included in the jury franchise. Besides solving an intractable doctrinal puzzle, an enfranchisement-based approach draws attention to ways in which widespread juror selection practices exclude underrepresented groups and thereby undermine the jury’s democratic character.