Volume 63
Date
2026

Absolute Disparity at the Absolute Limit: How Courts Can Achieve a Truly Representative Cross-Section

by Catherine Nash

Defendants of color face challenges enjoying their right to a jury selected from a representative cross-section of the community, as is guaranteed by the Sixth Amendment. Many impediments stand in the way, including felony disenfranchisement, flawed jury pool source lists, restrictive language requirements, lower jury questionnaire response rates in minority communities, neighborhood instability resulting in failure to receive jury summonses, and increased failure to report to the courthouse for jury duty in minority communities. These impediments are especially salient in areas where a racial group constitutes a small percentage of the population. This piece explores how courts assess whether jury pools reflect a fair cross-section of the community and meet the requirements of the Equal Protection Clause of the Fourteenth Amendment. Through an analysis of the limitations of exclusive reliance on the absolute disparity test, which can mask underrepresentation in low-minority jurisdictions, this Note examines potential alternative measures like comparative disparity and standard deviation analyses. This piece concludes by arguing courts can and should utilize the absolute disparity, comparative disparity, and standard deviation tests together to measure underrepresentation.

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