Amendment No. 7 makes clear that the bill will not preclude any person or the United States from pursuing other remedies, civil or criminal, which may be available to vindicate illegal discrimination in the jury selection process.

Amendment No. 8 corrects an inconsistency between subsections 1863(b)(8) and 1867(f) and makes clear that the district court plan may provide for the disclosure of records or papers used in connection with the jury selection process.

Amendment No. 9 redefines "juror qualification form" to clarify the distinction between those questions as to which answers are mandatory and those as to which answers are optional.

Amendment No. 10 specifically authorizes the recovery by Federal jurors of amounts expended for tunnel tolls.

- PURPOSE

The purpose of S. 989 as amended is to provide improved judicial machinery for the selection, without discrimination, of Federal grand and petit juries. Its aim is 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.

HISTORY OF THE LEGISLATION

In the 89th Congress, H.R. 14765 was considered and favorably reported by this committee (see Civil Rights 1966, Hearings before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., second sess., serial No. 16, and H. Rept. 1678). The House approved the measure on August 9, 1966. Title I of H.R. 14765 contained proposed amendments to the Federal jury selection system which were identical in terms of objectives and fundamental principles to S. 989, as amended.

S. 989 was originally drafted by the Committee on the Operation of the jury system of the Judicial Conference of the United States. It was approved by the Conference in March 1967. Hearings were held in the Senate on Federal jury selection in the first session of the 90th Congress (Federal Jury Selection, Hearings before the Subcommittee on Improvements of Judicial Machinery of the Senate Committee on the Judiciary, 90th Cong., first sess.). The measure passed the Senate on December 8, 1967, without objection. In addition to the Judicial Conference of the United States, S. 989 has the support of the American Bar Association and the Department of Justice.

GENERAL STATEMENT

Present law establishes no uniform method for selecting jurors in Federal courts. S. 989, as amended, would impose a measure of uniformity upon Federal jury selection without disturbing local flexibility. The bill clearly defines the roles of judges, clerks, and jury commissioners in the selection process. It eliminates existing statutory vagueness which is a substantial source of confusion in jury selection systems today. The bill also raises juror and witness fees to comport with the rising costs of living and thereby decreases the availability of excuses based on economic hardship. S. 989, as amended, also

specifically makes provision for the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, and the Canal Zone, recognizing the special needs of each in the Federal jury selection process.

The committee adopts for its report the Senate committee report on S. 989 (S. Rept. 891) substantially as follows:

S. 989, as amended, embodies two important general principles: (1) random selection of juror names from the voter lists of the district or division in which court is held; and (2) determination of juror disqualifications, excuses, exemptions, and exclusions on the basis of objective criteria only. These principles provide the best method for obtaining jury lists that represent a cross section of the relevant community and for establishing an effective bulwark against impermissible forms of discrimination and arbitrariness.

Random selection from voter lists is not a new merhod. It has been used by a number of Federal district courts for some years, in part because it can easily be used to produce a large number of juror names. In many districts citizens have complained about the frequency with which they are called for jury service while others, equally quali fied, are called infrequently or not at all. Random selection from voter lists should go far toward eliminating these complaints, both because anyone whose name appears on the voter lists has a chance of being selected equal to that of any other listed person, and because voter lists contain a number of names sufficiently large to insure that no one need be called for more than his fair share of jury duty.

The advantages of random selection from voter lists are not limited, however, to easing the clerks' task in obtaining a sufficient number of jurors or to allocating jury duty fairly among the citizenry. More important, random selection eliminates the key man system and ensures that jurors will be selected without regard to race, wealth, political affiliation, or any other impermissible criterion. It is for this reason that random selection traditionally has been the method used to select juror names from the qualified jury wheel. The bill simply extends this principle backward in time to encompass the method used to obtain the names placed in the qualified jury wheel. It thus virtually eliminates the possibility of impermissible discrimination and arbitrariness at all stages of the jury selection process, and thereby tends to insure that the jury list will be drawn from a cross section of the community.

The bill specifies that voter lists be used as the basic source of juror names. These lists provide the widest community cross section of any list readily available. Census data quickly become out of date and are not suitable. The bill requires that the voter lists be supplemented by other sources whenever they do not adequately reflect a cross section of the community. The bill, as amended, provides that

1 Most Federal jurisdictions use the so-called key man system of selection by which "key men" thought to have extensive contacts throughout the community, supply the names of prospective jurors. On its face, the system seems susceptible to intentional discrimination in that it allows room for individual choice in the recommendation of names. But the negative effects of the system are not limited to discrimination brought about intentionally. In the recent case of Rabinowitz v. United States, 366 F. 2d 34 (1966), the operation of the key man system in one set of circumstances was condemned even though it was stipulated that the officials responsible for selection did not consciously engage in discriminatory practices. The U.S. Court of Appeals for the Fifth Circuit en binc concluded that the key man system in question led to a jury list that did not represent a fair cross section of the community. In Rabinowitz the key man system condemned resulted in underrepresentation of Neroes on the jury lists, but the discriminatory impact of the system is not limited to racial discrimination. Often the system results in underrepresentation of craftsmen, service workers, and laborers as compared with the professional and managerial classes. See, e.g., S. Rept. 891 at p. 11.

sources of names other than voter lists may be used to supplement, but not supplant, voter lists.

The voting list requirement, together with the provision for supplementation, is therefore the primary technique for implementing the cross sectional goal of this legislation. The bill uses the term "fair cross section of the community" in order to permit minor deviations from a fully accurate cross section. The voting list need not perfectly mirror the percentage structure of the community. But any substantial percentage deviations must be corrected by the use of supplemental sources. Your committee would leave the definition of "substantial" to the process of judicial decision.

If the voter lists are used and supplemented where necessary, and if the procedures outlined in the bill are otherwise rigorously followed it is no departure from the standards of the legislation that the qualified jury wheel, the venire or array, or the jury itself, may not reflect a community cross section. The act guarantees only that the jury shall be "selected at random from a fair cross section of the community." It does not require that at any stage beyond the initial source list the selection process shall produce groups that accurately mirror community makeup. Thus, no challenge lies on that basis. In short, the act attempts to achieve its cross sectional aim by insuring that the basic source list is adequate in that regard and that no procedure is employed that would impermissibly diminish the likelihood that a cross section will be attained.

In a sense the use of voter lists as the basic source of juror names discriminates against those who have the requisite qualifications for jury service but who do not register or vote. This is not unfair, however, because anyone with minimal qualifications qualifications that are relevant to jury service-can cause his name to be placed on the lists simply by registering or voting. No economic or social characteristics prevent one who wants to be considered for jury service from having his name placed in the pool from which jurors are selected.

The second principle-determination of disqualifications, excuses, exemptions and exclusions on the basis of objective criteria only-is designed to work with random selection to produce juries that represent the community fairly. In essence, this principle would prohibit the widespread current practice of imposing qualifications above and beyond those specified by Congress.

Many Federal district courts and officials administering jury selection treat the present statutory qualification requirements-citizenship, age, residence, literacy, health, and lawful behavior-as minimum standards to which may be added subjective notions of "good character, approved integrity, sound judgment and fair education." See, e.g., United States v. Hunt, 265 F. Supp. 178, 183 (W. D. Texas 1967). In at least some instances, even though the jury selection officials were well intentioned, these additional qualification requirements have produced discriminatory results, especially in relation to the poor and other minorities. See e.g., Rabinowitz v. United States, 366 F. 2d 34 (5th Cir. 1966). Moreover, the committee does not believe that additional qualifications are necessary to obtain jurors with intelligence and good judgment sufficient to understand and render an appropriate verdict. Accordingly, the bill prohibits them. It should be noted, however, that the bill does not change the method of challenging jurors at voir dire. In particular, the bill leaves undisturbed the right of a litigant

to exercise his peremptory challenges to eliminate jurors for purely subjective reasons.

There are some who do not agree with the bill's insistence upon objective qualification criteria. They would authorize the jury commission or the clerk to interview potential jurors in order to determine whether, for example, the ostensibly qualified juror is "so lacking in intelligence, information, probity, or common sense as to be unable to render satisfactory jury service." Advocates of such pretrial "subjective screening" contend that unless it is permitted, random selection of jurors, screened only for objective qualifications, will undermine the quality of jury performance.

All who are concerned with fair jury selection are concerned as well that juries be competent to perform the tasks assigned to them. The jury must be able to listen to the evidence and evaluate it sensibly, to comprehend the instructions given on the governing law, and to make its decisions wisely and honestly. The committee has felt very strongly, therefore, that if juries are to perform satisfactorily, the quality of jurors must be maintained. The committee has approved this bill only upon determining that it includes a number of provisions sufficient to attain high levels of juror competence.

The initial line of defense against incompetence is the requirement that voter lists be used as the primary source of potential jurors. Voter lists contain an important built-in screening element in that they eliminate those individuals who are either unqualified to vote or insufficiently interested in the world about them to do so. But above and beyond that manifestation of interest in the affairs of citizenship stand the objective qualifications required by S. 989, as amended. À juror must be able to read, write, and understand the English language with a degree of proficiency sufficient to understand and fill out a juror qualification form. In case of doubt the potential juror may be required to fill out a second form in the presence of the clerk or jury commission. The candidate's performance at this point may then be reported to the court. The potential juror must also be able to speak the English language.

The proposed legislation disqualifies those incapable of rendering satisfactory jury service by reason of mental or physical infirmity. The bill also contains some guarantee of "probity" at least to the extent that persons are disqualified who have charges pending against them for, or have been convicted of, a crime punishable by imprisonment for more than 1 year. Moreover, the 1-year residence requirement assures some substantial nexus between a juror and the community whose sense of justice the jury as a whole is expected to reflect. The foregoing screens will eliminate virtually all those who ought not to be allowed to serve on a jury-the illiterate, the feebleminded, the insane, the decrepit, the infirm, the accused, and the criminal. But the bill gives the judges further powers to eliminate incompetents. Under provisions of proposed section 1866(c) (2) a district judge can exclude those summoned who "may be unable to render impartial jury service," or whose service "would disrupt the proceedings." And under 1866(c) (5) the judge can exclude those whose service he determines "would be likely to threaten the secrecy of the proceedings or otherwise adversely affect the integrity of jury deliberations."

It is intended that "disrupt the proceedings" include only physical disruption of the proceedings. For example, the "community drunk" who would be likely to disturb orderly processes in the jury room can

be excluded under this criterion. Other possible kinds of disruption are to be dealth with under section 1866 (c) (5). A notorious underworld figure who has never been convicted and is currently free from any criminal charge could, under that section, be excluded from a grand jury if his service would be likely to "threaten the secrecy of the proceedings." And the hobo who cannot be trusted to appear each day in court might be excluded on the ground that his participation might "adversely affect the integrity of jury deliberations." Section 1566(c) (5) is thus designed to insure that the judge has power to eliminate the rare person who is technically "qualified" to serve but who is clearly unsuited for such service. Since it is contemplated that these instances will indeed be rare, exclusion under clause (5) is limited to 1 percent of the number of persons who return executed juror qualification forms during the period between two consecutive fillings of the master jury wheel. This percentage limitation will also help to prevent abuse of the otherwise broadly phrased language of the clause.

The provisions for exclusion under these statutory criteria differ in important ways from a system of pretrial subjective screening. These provisions would authorize the exclusion of persons only in the unusual instances and, therefore, in contrast with pretrial subjective screening of every potential juror, they do not seriously threaten the representational goal of the selection process.

Finally, after the foregoing statutory screens have come into play, the proposed bill preserves the traditional right of the parties to challenge a juror for cause or to strike him peremptorily. The eagerness of at least one party to eliminate an unsuited juror cannot be discounted as an effective bulwark against all forms of juror incompetence.

It is possibly, of course, that an unsuitable juror will occasionally slip by. But he slips by under present systems of selection and no system of subjective interviews could promise perfection in this regard. Indeed, as noted previously, subjective screening is destined not only to fall short of perfection, but to yield unwanted exclusions as well. Since there is also no empirical evidence that jury competence is dependent upon it, there is no reason to adopt a provision that is likely to impair other goals of the jury selection process.

Accordingly, your committee is convinced that S. 989, as amended, contains features that will eliminate virtually every candidate unsuited for service.

But the proposed legislation does not rest with the elimination` of the unsuited. The bill also contains provisions that your committee believes will upgrade the competence of Federal juries.

Under the bill, each plan will specify groups whose members may be excused or exempt from service. Although individual hardship excuses will still be possible, the specification of the groups who may justifiably avoid jury service will make it more difficult for members of the community.who do not fall within these groups to avoid service on spurious grounds. Many professional and business people now easily avoid service on the ground that they are "busy people." Some will still be able to obtain individual excuses when they are under genuine hardship. But the casual granting of excuses to these presumably more intelligent members of the community will no longer be possible. Enhanced jury performance, as well as an enhanced community cross section, will be the result.