June 16, 2012
Saturday Evening Review: What's the Difference Between Equal Protection and Fair Cross-Section?
What's the difference between the Fourteenth Amendment's Equal Protection Clause and the Sixth Amendment's Fair Cross- Section protection?
In a word: "intent."
But in other words: "not much," at least according to most courts.
Nina W. Chernoff (pictured right) tackles this issue in Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards, available on SSRN and forthcoming in Hastings Law Journal. She demonstrates the consistent mistake courts make by not honoring the doctrinal distinction between equal protection (requiring intent) and fair cross-section (not requiring intent) when considering impartial jury claims. The cost of this mistake is a high one paid by criminal defendants.
Consider this: a computer error excludes every African-American from the jury pool. If there was no human intent, then there is no equal protection violation. But the criminal defendant would nevertheless be denied the posibility of a jury drawn from a fair-cross section of the community. Chernoff discusses similar cases and shows how courts conflation of equal protection and fair cross-section doctrine denies defendants relief in such situations.
This article should be of special interest to ConLawProfs who teach Criminal Procedure. But it's worth reading for anyone interested in the limits of current equal protection doctrine. The article is further discussed as my selection for the Jotwell Equality section; it's the best article I've read on constitutional equality in the last year.
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