JURY SELECTION AND SERVICE Cite as 66 F.R.D. 375 379 and that 28 U.S.C.A. § 1863 (c), as it then read, proscribed the exclusion of any citizen from service on a federal grand or petit jury on account of race or color. The "qualified persons" whose names were placed in the jury box by the clerk and the jury commissioner were those whose names had been obtained from the sources utilized and who met the qualifications set forth in the 1957 Act; that is: were citizens of the United States at least 21 years of age; resident in the district for one year; had not been convicted of felony; were able to write, speak and understand the English language; and were laboring under no disabling mental or physical infirmity.10 The statutory scheme made women eligible for service on federal juries and prohibited disqualification of members of racial and ethnic minorities, but failed to provide for adequate representation of the various economic and social segments of society. In the 1960 Report of the Committee on the Operation of the Jury System it was recommended that care be taken to avoid the use of sources of names which were too limited in scope, thus avoiding the practice held bad in the Thiel case. The Committee, at least until 1960, recommended that those selected for jury service "should possess as high a degree of intelligence, morality, integrity, and common sense as possible." The recommendations were approved by the Judicial Conference at its September, 1960, session.11 Citing Supreme Court decisions dealing with racial discrimination in the selection of jurors, 12 the exclusion from the jury list of daily wage workers,13 and women,1 the 1960 Committee expressed its belief that "the choice of means by which all sections of society are to be reached is one which must be entrusted to the sound discretion of the court of each district." It urged that the use of state jury lists as a source of names be discontinued because in some states black citizens were inadequately represented on the lists. It recommended that the key man system be supplemented by the use of questionnaires to each person whose name was suggested so that the jury commission might be satisfied that the nominee was qualified to act as a juror. In the 1960 report the Commit 380 66 FEDERAL RULES DECISIONS tee, heeding the Thiel decision, emphasized that the lists of prospective jurors must include representatives of all social and economic groups in the community and that there could be no discrimination because of race, sex or political affiliation. The key man system was mortally wounded in 1966, and, in the language of the old common law murder indictment, “languished, and languishing, died." The fatal wound was inflicted when the Court of Appeals for the Fifth Circuit reversed a conviction by a jury empaneled from an array in which Negroes were under-represented, even though the clerk and the jury commissioner did not specifically intend to exclude black citizens.15 The court also held that because the grand jury was similarly composed the indictment itself must be dismissed. The Judicial Conference of the United States, by resolutions adopted at its September, 1966, meeting, endorsed "the principle of random selection of the jury venire in a manner that would produce a fair cross section of the community in the district or division in which court is held," and directed the Director of the Administrative Office to communicate with the chief judge of each district court then using the key man system to ascertain whether, in lieu thereof, there had been adopted a system of random selection of jurors that would produce a fair cross section of the community. From the wounds inflicted by the Fifth Circuit and by the Conference, the key man system expired with the enactment of the Jury Selection and Service Act of 1968.16 There perished with that system the notion that federal jurors must "possess as high a degree of intelligence, morality, integrity, and common sense as can be found." 17 The elimination of this concept was deliberate. The Honorable Irving R. Kaufman, now Chief Judge of the United States Court of Appeals for the Second Circuit, then Chairman of the Committee on the Operation of the Jury System, testified before the Senate Subcommittee on Improvements in Judicial Machinery, that the bill which is now the Jury Selection and Service Act was designed to abolish the so-called blue ribbon jury, chosen for special "intelligence" or "common sense" qualifications. He expressed the consensus of his Committee that the objective qualifications required in our bill are satisfactory to obtain jurors with sufficient intelligence to understand the usual trial and with adequate judgment 15. Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966). 16. 28 U.S.C.A. §§ 1861-1871. 17. The Jury System in the Federal Courts, supra, at p. 418. JURY SELECTION AND SERVICE Cite as 66 F.R.D. 375 381 to render an appropriate verdict; second, long experience with subjective requirements such as 'intelligence' and 'common sense' has demonstrated beyond any doubt that these vague terms provide a fertile ground for discrimination and arbitrariness, even when the jury officials act in good faith. "Moreover, the moment standards which permit subjective judgments are allowed, we create diversity and confusion instead of uniformity and clarity. This is too great a price to pay for the early elimination of the unsuited juror who will occasionally slip by (and I might add occasionally gets to serve as a juror even under present systems of screening)." 18 The stated purpose of the Act is twofold: "To assure all litigants that potential jurors will be selected at random from a representative cross section of the community and that all qualified citizens will have the opportunity to be considered for jury service." 19 The first purpose is achieved by the elimination of the key man system and by limiting the sources of the names of potential jurors to the lists of registered voters or the lists of those actually voting, with selection at random from those lists.20 The second purpose-assuring all qualified citizens the opportunity to be considered for jury service-is insured by the requirement that the registration lists or lists of actual voters (with supplemental lists only where necessary) be the sole source of names of potential jurors so that any citizen by simply registering to vote or by voting thereby acquires the right to be "considered for jury service." When, by random selection, he is considered, he may not be rejected because he fails, subjectively, to meet the requirements deemed essential by the judge, the clerk, or the jury commissioner. Spurred by the decisions of the Supreme Court and urged by the Judicial Conference of the United States, the Congress by passage of the Act has prohibited the systematic exclusion of identifiable segments of the community from jury panels. The Act does not guarantee that a litigant may always expect that the jury which decides his fate or considers his claim will contain persons of his own religion or race or sex or social or economic group or political affiliation. What it does is to insure that the jury, grand or petit, which passes upon his rights will be fairly 18. "The Jury System in the Federal Courts," Works of the Committee on the Operation of the Jury System, 1966-1973, West Publishing Co. pamphlet, 1973, p. 50. 19. U.S.Cong. & Admin.News 1968, p. 1792. 20. 28 U.S.C.A. § 1863. 382 66 FEDERAL RULES DECISIONS selected from a universe comprising a fair cross section of the citizenry of the community, including those with whom he identifies. While the Act is not perfect and further revision may be required as conditions change, the draftsmen of the Act and the Congress have achieved the objective outlined by Mr. Justice Frankfurter in 1946 when he said, in speaking of the need for review of the jury system to meet modern conditions: "The object is to devise a system that is fairly representative of our variegated population, exacts the obligation of citizenship to share in the administration of justice without operating too harshly upon any section of the community, and is duly regardful of the public interest in matters outside the jury system.21 21. Thiel v. Southern Pacific Co., supra, at p. 232 (Dissenting Opinion), 66 S.Ct. at p. 991. |