fair cross-section requirement in Michigan

2025To make a prima facie case of a violation of the fair-cross-section requirement, a defendant is obligated to demonstrate: “(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 (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Bryant, 491 Mich at 597 , quoting Duren v Missouri, 439 US 357, 364 ; 99 S Ct 664 ; 58 L Ed 2d 579 (1979).

2025To make a prima facie case of a violation of the fair-cross-section requirement, a defendant is obligated to demonstrate: “(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 (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Bryant, 491 Mich at 597 , quoting Duren v Missouri, 439 US 357, 364 ; 99 S Ct 664 ; 58 L Ed 2d 579 (1979).

2025To make a prima facie case of a violation of the fair-cross-section requirement, a defendant is obligated to demonstrate: “(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 (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Bryant, 491 Mich at 597 , quoting Duren v Missouri, 439 US 357, 364 ; 99 S Ct 664 ; 58 L Ed 2d 579 (1979).

2025To establish a prima facie violation of the fair-cross-section requirement, a defendant has the burden of proving the following: (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 (3) that this under-representation is due to systematic exclusion of the group in -3- the jury-selection process. [Bryant, 491 Mich at 597 , quoting Duren, 439 US at 364 .] Regarding the first prong, it is undis

2012Accordingly, we conclude that defendant satisfied the third prong by showing that the exclusion was systematic.108 In Hubbard, a panel of our Court of Appeals addressed a fair-cross-section claim and held that the threshold for underrepresentation is lower when the underrepresentation is “the result of circumstances less benign than random selection . . . .”109 In that case, “[t]he evidence produced on remand reveal[ed] that the juror allocation process employed by Kalamazoo County before July 1992—and not random selection—caused the underrepresentation.”110 The panel concluded that “given the

2010Once a defendant establishes a prima facie violation of the fair-cross-section requirement, “the government may overcome the right to a proper jury by proffering a significant state interest that manifestly and primarily advances those aspects of the jury selection process that would result in the disproportionate exclusion of a distinctive group . . . .” Hubbard, 217 Mich App at 473 ; see also Duren, 439 US at 367-368 .

2018Because this Court’s review is limited to the record established in the trial court, and a party may not expand the record on appeal, Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56 ; 649 NW2d 783 (2002), we cannot consider the statistical data from the United States Census Bureau regarding the population of Kent County in 2015 that defendant has attached to his brief on appeal.

2018Because this Court’s review is limited to the record established in the trial court, and a party may not expand the record on appeal, Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56 ; 649 NW2d 783 (2002), we cannot consider the statistical data from the United States Census Bureau regarding the population of Kent County in 2015 that defendant has attached to his brief on appeal.

2012See id. at 7 ; see also Note, Re-justifying the fair cross section requirement: Equal representation and enfranchisement in the American criminal jury, 116 Yale L J 1568, 1596 (2007).

2000See Peters v Kiff, 407 US 493, 498-499 ; 92 S Ct 2163 ; 33 L Ed 2d 83 (1972); see also United States v Royal, 174 F3d 1, 6 (CA 1, 1999) (“blacks are unquestionably a ‘distinctive’ group for the purposes of a fair cross-section analysis”).

2025To make a prima facie claim concerning the fair-cross-section requirement, a defendant must establish that a specific group was underrepresented in their jury pool or venire, and that the underrepresentation was caused by the “ ‘systemic exclusion of the group from the jury selection process.’ ” People v McKinney, 258 Mich App 157, 161 ; 670 NW2d 254 (2003), quoting People v Smith, 463 Mich 199, 203 ; 615 NW2d 1 (2000), quoting Duren v Missouri, 439 US 357, 364 ; 99 S Ct 664 ; 58 L Ed 2d 579 (1979).

2025To make a prima facie claim concerning the fair-cross-section requirement, a defendant must establish that a specific group was underrepresented in their jury pool or venire, and that the underrepresentation was caused by the “ ‘systemic exclusion of the group from the jury selection process.’ ” People v McKinney, 258 Mich App 157, 161 ; 670 NW2d 254 (2003), quoting People v Smith, 463 Mich 199, 203 ; 615 NW2d 1 (2000), quoting Duren v Missouri, 439 US 357, 364 ; 99 S Ct 664 ; 58 L Ed 2d 579 (1979).

2010In Taylor v Louisiana, 419 US 522, 538 ; 95 S Ct 692 ; 42 L Ed 2d 690 (1975), the United States Supreme Court held that defendants are not entitled to a jury of any particular composition: “[I]n holding that petit [trial] juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.” 9 And in Lockhart v McCree, 476 US 162, 173 ; 106 S Ct 1758 ; 90 L Ed 2d 137 (1986), the United States Supreme Court observed: “We have never invoked the fa

2010In Taylor v Louisiana, 419 US 522, 538 ; 95 S Ct 692 ; 42 L Ed 2d 690 (1975), the United States Supreme Court held that defendants are not entitled to a jury of any particular composition: “[I]n holding that petit [trial] juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.” 9 And in Lockhart v McCree, 476 US 162, 173 ; 106 S Ct 1758 ; 90 L Ed 2d 137 (1986), the United States Supreme Court observed: “We have never invoked the fa

2012But see Berghuis, 559 US at 334 ; 130 S Ct at 1396 (Thomas, J., concurring) (arguing that the fair-cross-section requirement “rests less on the Sixth Amendment than on an ‘amalgamation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment’ ”) (citations omitted).

2012But see Berghuis, 559 US at 334 ; 130 S Ct at 1396 (Thomas, J., concurring) (arguing that the fair-cross-section requirement “rests less on the Sixth Amendment than on an ‘amalgamation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment’ ”) (citations omitted).

2012WHETHER REPRESENTATION IS FAIR AND REASONABLE The second prong requires defendant to show that “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[.]”54 As we recognized in Smith,55 the United States Supreme Court has not identified a method or test that courts must use to measure whether the representation of distinct groups is fair and reasonable.56 In light of the United States Supreme Court’s decision not to mandate what method or methods should be used, and given the various tests use

2012See United States v Ashley, 54 F3d 311, 313-314 (CA 7, 1995); Maskeny, 609 F2d at 190.

2012The 22 Ante at 40. 23 United States v Rioux, 930 F Supp 1558, 1566 (D Conn, 1995) (“[T]he second and third prongs of the Duren test, unfair representation and systematic exclusion, are intertwined inextricably.”); Commonwealth v Arriaga, 438 Mass 556, 566; 781 NE2d 1253 (2003) (“Evidence of a disparity smaller than 10% can support a conclusion of unconstitutional underrepresentation of smaller minority groups, especially when coupled with persuasive evidence of systematic exclusion.”) (emphasis added). 24 Smith, 463 Mich at 222-224 (CAVANAGH, J., concurring). 25 Id. at 224. 26 Hubbard, 217 Mic

2012He did, 87 Smith, 463 Mich at 204, quoting Rioux, 97 F3d at 655 (alteration in original). 88 As one commentator stated: [T]he question answered by [the standard-deviation test], while an interesting one, is not the appropriate one for a fair cross-section analysis.

2012See, e.g., United States v Miller, 771 F2d 1219, 1228 (CA 9, 1985) (“[A] violation of the fair cross-section requirement cannot be premised upon proof of underrepresentation in a single jury.”) (emphasis added); United States v Allen, 160 F3d 1096, 1103 (CA 6, 1998) (“Appellants have satisfied the first prong [of] the Duren test, hut they have not satisfied the other two.”) (emphasis added).

2012See United States v Miller, 771 F2d 1219, 1228 (CA 9, 1985) (stating in a discussion of Duren’a second prong that “[i]t appears to us that the Supreme Court’s use of the plural in setting up the Duren test is a clear indication that a violation of the fair cross-section requirement cannot be premised upon proof of underrepresentation in a single jury”); United States v Allen, 160 F3d 1096, 1103 (CA 6, 1998) (stating in a discussion of Duren’s second prong that “[a]ppellants, however, must show more than that their particular panel was unrepresentative”); People v De Rosans, 27 Cal App 4th 611,

2012See United States v Miller, 771 F2d 1219, 1228 (CA 9, 1985) (stating in a discussion of Duren’a second prong that “[i]t appears to us that the Supreme Court’s use of the plural in setting up the Duren test is a clear indication that a violation of the fair cross-section requirement cannot be premised upon proof of underrepresentation in a single jury”); United States v Allen, 160 F3d 1096, 1103 (CA 6, 1998) (stating in a discussion of Duren’s second prong that “[a]ppellants, however, must show more than that their particular panel was unrepresentative”); People v De Rosans, 27 Cal App 4th 611,

2012WHETHER REPRESENTATION IS FAIR AND REASONABLE The second prong requires defendant to show that “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[.]”54 As we recognized in Smith,55 the United States Supreme Court has not identified a method or test that courts must use to measure whether the representation of distinct groups is fair and reasonable.56 In light of the United States Supreme Court’s decision not to mandate what method or methods should be used, and given the various tests use