absolute disparity test in Michigan

2012The panel considered only the absolute-disparity test, but found the test flawed, relying largely on United States v Osorio, 801 F Supp 966, 978-979 (D Conn, 1992), for its holding that such a level of disparity resulting from nonbenign circumstances satisfied the second Duren prong. 110 Hubbard, 217 Mich App at 480 . 111 Id. at 481 .

2012The panel considered only the absolute-disparity test, but found the test flawed, relying largely on United States v Osorio, 801 F Supp 966, 978-979 (D Conn, 1992), for its holding that such a level of disparity resulting from nonbenign circumstances satisfied the second Duren prong.

2012See Bryant, 289 Mich App at 269 (concluding that “ ‘the absolute disparity test is an ineffective measure of acceptable disparity’ because of the low percentage of African-Americans who were eligible to vote in Kent County” and for that reason “declining] to find the absolute-disparity test controlling in this case”), quoting People v Hubbard (After Remand), 217 Mich App 459, 477 ; 552 NW2d 493 (1996) (citation omitted); id. at 272-273 (“[I]n this case, the standard-deviation test has little value in measuring the underrepresentation of African-Americans in Kent County jury venires.”).

2012See Bryant, 289 Mich App at 269 (concluding that “ ‘the absolute disparity test is an ineffective measure of acceptable disparity’ because of the low percentage of African-Americans who were eligible to vote in Kent County” and for that reason “declining] to find the absolute-disparity test controlling in this case”), quoting People v Hubbard (After Remand), 217 Mich App 459, 477 ; 552 NW2d 493 (1996) (citation omitted); id. at 272-273 (“[I]n this case, the standard-deviation test has little value in measuring the underrepresentation of African-Americans in Kent County jury venires.”).

2012ABSOLUTE-DISPARITY TEST The absolute-disparity test is the most widely applied test and is used by the majority of jurisdictions to evaluate whether the representation of a distinct group was fair and reasonable.66 This test measures a group’s underrepresentation by subtracting the percentile representation of that group in jury pools or venires from the percentile representation of that group in the overall population of the relevant community.67 The absolute-disparity test is useful because it permits a straightforward and undistorted measure of the percentage of the group that has been excl

1996These methods include the absolute disparity test, also referred to as the absolute numbers or absolute impact test, Ashley, supra at 314 ; Jackman, supra at 1246 ; Ramseur, supra at 1231; Osorio, supra at 977-978 , the comparative disparity test, Ramseur, supra; Sanders, supra, 51 Cal 3d 492, n 5, and the deviation from expected random selection test, also referred to as the standard deviation test, Ramseur, supra, or the statistical decision theory, Ford, supra at 684, n 5.

2012ABSOLUTE-DISPARITY TEST The absolute-disparity test is the most widely applied test and is used by the majority of jurisdictions to evaluate whether the representation of a distinct group was fair and reasonable.66 This test measures a group’s underrepresentation by subtracting the percentile representation of that group in jury pools or venires from the percentile representation of that group in the overall population of the relevant community.67 The absolute-disparity test is useful because it permits a straightforward and undistorted measure of the percentage of the group that has been excl

2012ABSOLUTE-DISPARITY TEST The absolute-disparity test is the most widely applied test and is used by the majority of jurisdictions to evaluate whether the representation of a distinct group was fair and reasonable.66 This test measures a group’s underrepresentation by subtracting the percentile representation of that group in jury pools or venires from the percentile representation of that group in the overall population of the relevant community.67 The absolute-disparity test is useful because it permits a straightforward and undistorted measure of the percentage of the group that has been excl

2000See United States v Jackman, 46 F3d 1240, 1247 (CA 2, 1995).

1996These methods include the absolute disparity test, also referred to as the absolute numbers or absolute impact test, Ashley, supra at 314 ; Jackman, supra at 1246 ; Ramseur, supra at 1231; Osorio, supra at 977-978 , the comparative disparity test, Ramseur, supra; Sanders, supra, 51 Cal 3d 492, n 5, and the deviation from expected random selection test, also referred to as the standard deviation test, Ramseur, supra, or the statistical decision theory, Ford, supra at 684, n 5.

2012Justice MARILYN KELLY argues that the Court of Appeals below “properly considered the results of all tests [including the absolute-disparity test], but decided that the comparative disparity test was ‘the most appropriate test to measure underrepresentation in this case,’ ” post at 638, quoting People v Bryant, 289 Mich App 260, 271 ; 796 NW2d 135 (2010), while the majority concludes that Smith requires more than simply alluding to a test and then failing to “consider” it.

2012Justice MARILYN KELLY argues that the Court of Appeals below “properly considered the results of all tests [including the absolute-disparity test], but decided that the comparative disparity test was ‘the most appropriate test to measure underrepresentation in this case,’ ” post at 638, quoting People v Bryant, 289 Mich App 260, 271 ; 796 NW2d 135 (2010), while the majority concludes that Smith requires more than simply alluding to a test and then failing to “consider” it.

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

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

2012On this point, the panel relied on United States v Rogers, 73 F3d 774, 777 (CA 8, 1996), which concluded that “the comparative disparity calculation provides a more meaningful measure of systematic impact vis-a-vis the ‘distinctive’ group: it calculates the representation of African Americans in jury pools relative to the African- American[s] [in the] community rather than relative to the entire population.” 14 representation of African-Americans in the venire for defendant’s trial was unfair and unreasonable.”35 In addition, the panel briefly addressed the standard-deviation test.

2012COMPARATIVE-DISPARITY TEST Some courts have used the comparative-disparity test, which measures “the decreased likelihood that members of an underrepresented group will be called for jury service . . . .”74 It is calculated by dividing the result of the absolute-disparity test by the percentage of the distinct group in the overall population of the community.75 The comparative-disparity test is not widely used and is criticized because it invites distortion 73 Smith, 463 Mich at 204. 74 United States v Shinault, 147 F3d 1266, 1272 (CA 10, 1998) (emphasis omitted). 75 Id.

2012COMPARATIVE-DISPARITY TEST Some courts have used the comparative-disparity test, which measures “the decreased likelihood that members of an underrepresented group will be called for jury service . . . .”74 It is calculated by dividing the result of the absolute-disparity test by the percentage of the distinct group in the overall population of the community.75 The comparative-disparity test is not widely used and is criticized because it invites distortion 73 Smith, 463 Mich at 204. 74 United States v Shinault, 147 F3d 1266, 1272 (CA 10, 1998) (emphasis omitted). 75 Id.

2012The fact that the absolute disparity test cannot distinguish between these radically different scenarios indicates that it does not measure defendants’ probabilistic injuries. [Commentary, Jury poker: A statistical analysis of the fair cross-section requirement, 8 Ohio St J Crim L 533, 545 (2011).] 71 See, e.g., Thomas, 159 F3d at 1151 (addressing an absolute disparity of approximately 5 percent); United States v Suttiswad, 696 F2d 645, 649 (CA 9, 1982) (addressing absolute disparities of 2.8 percent, 7.7 percent, and 4.7 percent); United States v Clifford, 640 F2d 150, 155 (CA 8, 1981) (addre

2012The fact that the absolute disparity test cannot distinguish between these radically different scenarios indicates that it does not measure defendants’ probabilistic injuries. [Commentary, Jury poker: A statistical analysis of the fair cross-section requirement, 8 Ohio St J Crim L 533, 545 (2011).] See, e.g., Thomas, 159 F3d at 1151 (addressing an absolute disparity of approximately 5 percent); United States v Suttiswad, 696 F2d 645, 649 (CA 9, 1982) (addressing absolute disparities of 2.8 percent, 7.7 percent, and 4.7 percent); United States v Clifford, 640 F2d 150, 155 (CA 8, 1981) (addressi

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

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

2012ABSOLUTE-DISPARITY TEST The absolute-disparity test is the most widely applied test and is used by the majority of jurisdictions to evaluate whether the representation of a distinct group was fair and reasonable.66 This test measures a group’s underrepresentation by subtracting the percentile representation of that group in jury pools or venires from the percentile representation of that group in the overall population of the relevant community.67 The absolute-disparity test is useful because it permits a straightforward and undistorted measure of the percentage of the group that has been excl

2000See Ramseur, supra at 1235 ; Biaggi, supra at 678 ; Osorio, supra at 978-979 . [14] In the instant case, defendant has not shown underrepresentation under either the absolute disparity test, the comparative disparity test, or standard deviation analysis.

2000Ramseur v. Beyer, 983 F.2d 1215, 1231 (C.A.3, 1992).