Volume 2, Issue 2, June 2000 ISSN 1096-4886 http://www.westerncriminology.org/Western_Criminology_Review.htm © 2000, The Western Criminology Review. All Rights Reserved.

Citation: Fukurai, Hiroshi. 2000. "Where Did Hispanic Jurors Go? Racial and Ethnic Disenfranchisement in the Grand Jury and the Search for Justice" Western Criminology Review 2(2). [Online]. Available: http://www.westerncriminology.org/documents/WCR/v02n2/fukurai/fukurai.html

Past analyses of racial inequality in jury selection exclusively focus on African Americans and their underrepresentation in petit juries. Little research has examined other racial and ethnic minorities such as Hispanic jurors in the grand jury selection system. This paper examines racial and ethnic discrimination and disenfranchisement in the selection of Hispanic grand jurors in California. The study site is Santa Cruz County, California, which has a large Hispanic population but a very small black population, less than one percent, which suggests that most instances of racial and ethnic discrimination in grand jury selection involve Hispanic jurors.

The present analysis suggests that the use of the key-man system, along with representative quotas imposed on supervisorial districts after consolidating minority residents into a few districts, effectively limits Hispanic participation on grand jury service, leading to racially and ethnically unrepresentative juries, undermining public confidence in the grand jury system, and further perpetuating the notion of racial discrimination and disenfranchisement in the criminal justice system. Our analysis also points out that California trial judges and jury commissioners still have the discretion to both select and appoint potential jurors to grand juries. Key-man-appointed grand jurors are less likely to be members of racial and ethnic minorities. This practice exists despite the fact that the U.S. Supreme Court has prohibited the use of key-man selection systems for the appointment of grand jurors in federal courts. In order to ensure the placement of Hispanic jurors in the final grand jury, the present paper argues that affirmative action jury selection strategies may be necessary to create racially diverse and ethnically representative grand juries in California.

Keywords: grand jury, discrimination, disenfranchisement, justice, Hispanics

The grand jury is one of the oldest institutions of the Anglo-American criminal justice system (Moore 1972). Massachusetts first established the grand jury in 1635, and the institution has played an integral role in the criminal justice system (Clark 1975). While the petit jury system was subsequently established in the colonies of Rhode Island (1663), New York (1664), New Jersey (1677), and Maryland (1693), the grand jury was functionally more important than the petit jury and performed an important function in both civil and criminal areas (Moore 1972:100). The function of the grand jury has included inspection of bridges, public buildings, and jails; issuing reports critical of public officials for their failure to do such things as construct or fully operate public facilities; collecting taxes; disbursing funds; selecting petit jurors; crediting all expenditures of county funds; checking up on people who failed to attend church regularly; publicizing grievances; and achieving municipal reforms (Clark 1975:13).

Today, despite the important historical function played by the grand jury, it remains one of the most controversial aspects of the criminal justice system. The grand jury is frequently criticized for its failure to act as a meaningful check on the prosecutor's charging decisions (Borman 1993; Schiappa 1993).¹It is often referred to as a "rubber stamp" institution once used by the prosecutor and the government to harass unpopular individuals and minority groups, including anti-war student activists, racial minority militants, labor activists, communist members, and civil rights groups (Bernstein 1994; Leipold 1995). Consequently, the political and racial abuse of the grand jury has created political and social controversies, casting serious doubts on the effectiveness of the grand juries' investigative power and authority (Fukurai et al. 1991a; King 1993; Fukurai 1996).

Another criticism of the grand jury is its color blindness, or failure to reflect a fair cross-section of various racial and ethnic segments of the community. While the 1968 Jury Selection and Service Act requires equal opportunities be given to all prospective federal grand jurors in a jurisdiction, most grand juries selected to represent the community have been dominated by a racial majority (Fukurai et al. 1993; Smith 1993). The persistent underrepresentation of racial and ethnic minorities on grand juries and political abuses of the grand jury system have helped perpetuate public distrust and lack of faith in one of the great American judicial institutions (Clark 1975).

Past U.S. Supreme Court cases and a large number of jury studies have examined the use of race-based discriminatory grand jury selection in both state and federal courts. They have substantiated that a racially discriminatory jury selection damages public confidence in several ways. First, it operates through racial stereotypes held by members of the public (National Law Journal 1993). Many may believe that an all-white grand jury will be biased against a minority defendant, or biased in favor of a white defendant accused of a crime against a minority victim (Feild and Bienan 1980; Baum, Fisher, and Singer 1985; Black 1989; Baldus, Woodsworth, and Pulaski 1994).

Past research also shows that public confidence in the courts may also be shaken by racially discriminatory jury selection without reliance on any such stereotypes. For example, jury studies suggest that minority witnesses find the experience of testifying before the grand jury more intimidating when the grand jury is all white than when the grand jury contains some minorities (Leipold 1995). Unlike trial jurors, grand jurors may be allowed to ask questions of the witness and may discuss the case with the prosecutor as evidence is submitted. As a large proportion of crime suspects and crime victims are racial and ethnic minorities, potential witnesses of the crimes are also more likely to be members of the same minority group (Smith 1993). With minority witnesses and white grand jurors, there are inevitably challenges of intercultural communications, requiring explanations of the meaning of technical or slang terminology (Resnick 1992; Melvin 1994).

Studies also find that the general public knows very little about the role and the function of the grand jury in criminal justice processes. In some communities, particularly minority ones, there is a widely shared perception that the criminal justice system is unfair, and this perception also applies to the grand jury (Burnett 1994; Smolowe 1994). The broader participation by the community in the criminal justice process, including the grand jury, would greatly promote its effectiveness and public confidence. The existence of grand juries that continue to exclude racial and ethnic minorities presents a significant and unnecessary risk of miscommunication and cultural bias in grand jury proceedings.

The opportunity to participate in government through service as a grand or petit juror has been found to be of profound psychological importance to minority persons. Studies have shown that minority groups are more likely to feel they belong to the community and society if they are available or called as jurors (Broeder 1965; Ugwuegbu 1979). Consequently, participation by racial minorities has a profound impact on their attitude toward law and confidence in the system of justice (Golash 1992; Melvin 1994).

In addition to the fact that the outcome of all white grand juries often results in a decision unfavorable to minority defendants, there is evidence which suggests that any homogeneous group will be less likely to oppose the prosecutor's recommendation (Davis and Rowland 1979). In other words, since grand jurors deliberate in private, overrepresentation of affluent white males, for example, has been found to have narrowed the range of social and political values capable of evoking disagreement among fellow grand jurors or with the prosecutor (Smolla 1990; Boccardi et al. 1991; Leipold 1995).² Homogeneous groups, for instance, make a decision more quickly than diverse groups (Hastie et al. 1982; Varinsky and Nomikos 1990)

The fair cross-section requirement for the grand jury is especially important because grand jurors are not challenged for potential bias through peremptory challenges as is true for trial jurors. Greater representation of racial minorities can also check the influence of the prosecutor over the grand jury by facilitating discussion or controversy in important cases. Without the broad range of social experiences that a group of diverse individuals can provide, grand juries are often ill-equipped to evaluate the facts presented. An all-white grand jury simply may not understand the language or context of facts involved in the case and may act on this misunderstanding to the detriment of the process. In order to achieve a fair cross-sectional representation and restore public confidence on the grand jury, any discriminatory factors that may prevent the goal of racially representative grand juries need to be identified and eliminated from the grand jury selection procedure.

This paper has three goals: (1) to examine specific mechanical and logistical problems of grand jury selection that may impair a fair cross-sectional representation of grand juries; (2) to analyze specific examples and potentially discriminatory practices of grand jury selection in a California state court; and (3) to present possible affirmative action strategies to increase racial and ethnic minorities' participation in the jury selection system in order to create racially and ethnically heterogeneous and representative grand juries.

GRAND JURY SELECTION PROCEDURES IN CALIFORNIA

The Jury Selection and Service Act of 1968 specifies the selection procedure of the federal grand jury.³ While different courts have varying standards and requirements for selecting grand juries, the grand jury selection procedure in California is specified in the California Penal Code. Unlike the federal law, grand jurors in California are not required to be selected at "random" from source lists, or grand jury panels are not required to reflect a "fair cross-section" of the community. Currently at least six states do not require that grand juror names be drawn randomly from the grand jury wheel or pool and instead allow judges or jury commissioners to select who will actually serve as grand jurors.⁴

In California, Penal Code Section 888 covers the formation of the grand jury, and Section 903.4 requires that each jurisdiction or county appoint jury commissioners who are responsible for compiling lists of those qualified to serve as grand jurors. Section 903.3 also specifies that superior court judges shall examine the jury list submitted by jury commissioners, and may select "such persons, as in their opinion, should be selected for grand jury duty." However, Section 903.4 also allows judges to disregard these lists and select anyone from the county they find suitable and competent to serve as grand jurors. Section 903.4 specifically states:

The judges are not required to select any names from the list returned by the jury commissioner, but may, if in their judgment the due administration of justice requires, make all or any selections from among the body of persons in the county suitable and competent to serve as grand jurors regardless of the list returned by the jury commissioner [emphasis added].

Another requirement of grand jury selection is that residents of different districts in the jurisdiction should be proportionally represented on the grand jury. Section 899 specifically requires that:

The name for the grand jury list shall be selected from the different...supervisorial districts of the respective counties in proportion to the number of inhabitants therein, as nearly as the same can be estimated by the persons making the list.

The reason for equal geographic partition and representation is simple: Potential jurors are not distributed randomly within a given jurisdiction because residents are more likely to be stratified geographically by race, social class, and other socio-demographic factors (Fukurai et al. 1991b; Brown 1994). The law does not explicitly state that requiring equal geographic or residential representation of grand jurors will ensure proportional grand jury participation from different racial and socio-economic segments of the community. However, given the pattern of racial and economic segregation persisting in most American jurisdictions, geographical requirements are more likely to yield racially proportionate representation by closely distributing the burden of jury service throughout the population in the jurisdiction.

Another important characteristic of grand jury selection in California is that the penal code does not specify any particular source lists to identify potential grand jurors. It allows each county to develop its own local rules and procedures for the selection of grand jurors. Santa Cruz County, for instance, relies on both DMV (the Department of Motor Vehicles) and ROV (the Registrars of Voters) files to create a list of potential jurors, and the list is updated annually. After both DMV and ROV lists are merged and combined, and duplicate names are eliminated, the pool of about 20,000 potential jurors is then randomly selected to obtain candidates for both petit and grand juries. The jury commissioner's office then sends jury qualification questionnaires to all 20,000 potential jurors to screen for their eligibility and qualification.⁵After the potential jurors fill out and return qualification questionnaires, only qualified jurors are included in the qualified jurors' file. Obviously, not everyone returns a qualification questionnaire or is qualified to serve on the jury. Those who fail to return questionnaires are classified as "nonrespondents" and are eliminated from jury service. In Los Angeles County, for instance, 44 percent of potential jurors are classified as nonrespondents: 29 percent of them are called "nondeliverables" that the post office can not reach and 19 percent are "recalcitrants" who receive a questionnaire but fail to return it to the jury commissioner's office (Fukurai et al. 1991b). From the qualified jurors' list, a small number of jurors are randomly selected specifically for grand jury service, and their names are enlisted in the so-called the "master grand jury list." Those who were not selected for the master grand jury list are considered as candidates for petit juries. Prospective jurors in the master grand jury list are then sent additional qualification questionnaires in order to screen for their eligibility to serve on grand juries.

After grand jury qualification questionnaires are returned, a jury commissioner summons qualified jurors for orientation sessions. At the courthouse, a jury commissioner explains the duty of a jury foreperson and general functions of the grand jury, checks jurors' qualifications, exemptions, and excuses, and schedules individualized interviews so that a judge and/or a jury commissioner has an opportunity to assess their eligibility and willingness to carry out grand jury service. After the interviews, thirty grand jurors are selected: nineteen are sworn as grand jurors to inquire into public offenses "triable in the county" and the remaining eleven as grand jury alternates (Penal Code Sections 888, 888.2).

In order to represent the community equally, Santa Cruz County has also been divided into five geographical areas called supervisorial districts. The boundaries of five supervisorial districts are drawn in such a way to ensure that each supervisorial district contains approximately one-fifth of the total county population. The local rule further requires that six grand jurors are to be selected from each of the five supervisorial districts, thus maintaining the proportionality of grand juror representation from all the districts in the county (Selection Procedures for Grand Jury in Santa Cruz County, Section 4 (c)). The local rule also allows the judge to select "holdovers" -- jurors from the previous year's grand jury -- to serve for a second year. Section 7 (b) states that:

If the superior court so decides, the presiding judge may name up to 10 regular jurors not previously so named, who served on the previous grand jury and who so consent, to serve for a second year.

Once selected into the jury, grand jurors are required to serve for twelve months, from July to June of the following year.⁶

In the following section, Hispanic grand jury representation is critically and empirically examined. Procedural anomalies and biases that lead to disproportionate racial and ethnic jury representation are identified and analyzed. Further, possible remedies to eliminate such discriminatory factors and innovative jury selection strategies to improve racial representativeness in the grand jury are presented and discussed.

RESEARCH DESIGN

Sample

Five data sets are used to examine the grand jury selection system and Hispanic participation on grand juries. These are: (1) the master grand jury list for 1991-1992; (2) lists of grand jurors and alternates for fifteen year periods from 1977 to 1992; (3) the 1995 Santa Cruz community telephone survey; (4) 1990 U.S. Census Bureau data; and (5) the 1980 U.S. Census Bureau list of Hispanic surnames. The research site is Santa Cruz County Superior Court, California. The 1991-92 master grand jury list of 1,100 potential candidates was obtained and analyzed to identify their socio-demographic and geo-political profiles.

Figure 1 shows the 1991-92 grand jury selection process in Santa Cruz County, California. According to the 1990 U.S. Census, Santa Cruz County had a total population of 229,734, and the pool of 20,000 potential jurors was enlisted in the master list as potential jurors for grand jury service.⁷ The jury commissioner's office then sent a jury qualification questionnaire to each of 20,000 potential jurors on the master list. Approximately 68 percent of the potential grand jurors returned the questionnaires, while 32 percent were classified as nonrespondents.⁸ The proportion of unreachables in Santa Cruz County (32 percent) is much smaller than in other counties, such as Los Angeles (Fukurai et al. 1993).⁹

While a total of 13,520 potential jurors (68 percent of potential jurors in the master list) returned the jury qualification questionnaire, only fifty percent of them were qualified for jury service. Many of the unqualified indicated that they had a physical and mental disability, economic hardship, felony conviction, and/or other excuse and exemption items that made them ineligible to serve on the grand jury.

Of those who returned the questionnaire and were qualified, 1,100 potential jurors were randomly selected and placed in the master grand jury list. The remaining 5,617 qualified jurors were classified as petit jury candidates. Prospective grand jurors on the master grand jury list were then sent an additional special jury qualification questionnaire. The questionnaire has the same qualification questions as listed in the previous general jury qualification questionnaire, with additional items on potential hardship because grand jurors are expected to serve for twelve months. Of those 1,100 who returned the grand jury questionnaire and were qualified, a total of 182 prospective grand jurors were asked to appear at an orientation meeting of the jury commissioner for additional screening.

While a group of 131 people appeared at the courthouse, only 65 or 49.6 percent of the jurors were actually interviewed by either a judge or a jury commissioner. Sixty-six jurors failed to appear for the interview because they reconsidered grand jury service and asked to be excused from jury duties. Out of 65 interviewees, 24 or 36.9 percent were considered to be qualified to serve on the grand jury and 41 or 63.1 percent were eliminated by the judge and the jury commissioner after the interview.

The 1980 U.S. Census Hispanic surname list was used to identify the racial and ethnic backgrounds of grand jurors at various stages of jury selection. Both U.S. and California supreme courts have recognized that Hispanic surnames provide ready identification of members of the Hispanic jurors.¹⁰ Prospective grand jurors' residential addresses also provided the information on (1) census blocks and tracts, (2) election precincts, and (3) supervisorial districts. The step-by-step process through the jury selection procedure was carefully monitored, computerized, and analyzed.

Analysis and Results

Table 1 shows the Santa Cruz grand jury composition during each of fifteen year periods from 1977 through 1992. These data suggest that Hispanic grand jurors have been consistently underrepresented relative to their distribution in the population. During periods 1979-1980, 1987-1988, and 1988-1989, no Hispanic persons served as grand jurors. The test of statistical significance (z score) shows that the likelihood that the exhibited disparity would occur by chance in those three years was less than one in one million. The data also show that the grand jury foreperson has never been Hispanic in those years when a Hispanic juror(s) was/were included in the grand jury box.

Similarly, while the average Hispanic adult composition in the community remained 13.8 percent during the fifteen year period, only five percent of all grand jurors were Hispanic, which resulted in the absolute disparity of -8.8 percent and the comparative disparity of -64.1 percent (negative values show the underrepresentation of Hispanic jurors). The disparity index suggests that during the fifteen year period, an average of almost two out of three Hispanic adults in Santa Cruz were excluded from grand jury service. Similarly, if the representative disparity was occurred by chance, it could have happened less than one in 100 million trials.

1: Hispanic surnames were identified by the 1980 U.S. Census List of Spanish Surnames.

2: Percent-Hispanic adults were computed on the basis of 1980 and 1990 Hispanic adults information in Santa Cruz County.

3: Total numbers of grand jurors were less than 30. The information was supplied by the Clerk of the Court, Christine Patton, on January 21, 1994.

4: The figure shows the mean (average) of percent-Hispanic adults between 1977 and 1991.

^**Probability is <<.000001, i.e., the likelihood exhibited disparity would occur by chance was less than one in 1 million.

Table 2 shows data on the 1991-92 grand jury selection of Hispanic jurors. One reason for the underrepresentation of Hispanics on grand juries is that the master grand jury list did not include a representative sample of Hispanic persons in the county population. During the 1991-92 period, for instance, Hispanics are 6.5 percent of the master grand jury list even though 17.0 percent of the Santa Cruz adult population is Hispanic. This results in a comparative disparity of -61.8 percent, suggesting that more than three out of five Hispanic adult residents in the community are excluded from the master grand jury list. The likelihood that this observed disparity would have occured by chance is less than one in one million trials.

1. Hispanic surnames were identified by the 1980 U.S. Census List of Spanish Surnames.

2. The figure includes potential jurors who were requested to appear for grand jury orientations.

3. A total of 26 jurors were given by the Watsonville Mayor and the Chief of Watsonville Police.

*: p <0.05 **; p <0.01 ***; p <0.001 ****; p <0.0001

Hispanics constitute 8.2 percent of the total of 182 potential grand jurors who returned grand jury qualification questionnaires, were qualified, and were requested by a jury commissioner to appear for grand jury orientation at a courthouse. However, a group of 51 prospective grand jurors, including five Hispanics, then reconsidered jury duty and excluded themselves from the process. As a result, 131 grand jurors appeared at the orientations, and 7.6 percent of them were Hispanic. After the orientation, a total of 66 prospective grand jurors reconsidered grand jury duty, and the remaining 65 potential jurors were scheduled for personal interviews. Thus, approximately half of jurors who attended orientation sessions reconsidered jury duties and resigned from grand jury service.

After a judge and a jury commissioner further screened 65 prospective grand jurors, 24 persons were finally considered to be desirable and fit to serve as grand jurors, and four, or 16.6 percent, were Hispanic. In order to find another six grand jurors in addition to the 24 selected ones, the jury commissioner contacted both the mayor and the police chief of the Fourth district to generate a list of names to be considered for grand jury service. The jury commissioner received a list containing 26 names of potential grand jurors. After further screening and interviews, three persons were chosen for the grand jury. Similarly, a judge chose three grand jurors who had served for the grand jury a previous year. None of the six additional grand jurors -- three from the key list and three holdovers from previous year's grand jurors -- were Hispanic.

With thirty grand jurors finally selected from different sources, nineteen jurors were then selected as grand jurors and eleven as alternates. Only one of the nineteen grand jurors was Hispanic (5.2 percent), while four of eleven alternates were (36.3 percent).

These findings suggest that Hispanic grand jurors are underrepresented at varying stages of jury selection -- from the master grand jury list to "key-man" selected jurors -- except in the alternate jury in which the composition of Hispanic jurors exceeds their representative proportion in the jurisdiction (17.0 percent).

Geographic Representation and Hispanic Grand Jurors

Table 3 shows the population breakdown of the master grand jury list and the grand jury by the five supervisorial districts. As previously noted, Santa Cruz County has been divided into five distinct geographical units called supervisorial districts. Hispanic compositions of the five supervisorial districts show that the majority (51.7 percent) of Hispanic Santa Cruz residents live in the Fourth supervisorial district. Similarly, the majority of the residents in the Fourth district are also Hispanic (57.8 percent) (see the second and the third columns in Table 3). The First and Third districts have the smallest Hispanic populations (8.2 percent and 5.4 percent, respectively, of Hispanic Santa Cruz residents).

The finding also suggests that the boundaries of the five supervisorial districts are not drawn equally among the county's voting population. The local rule requires that six grand jurors be selected from each supervisorial district in order to maintain proportional grand jury representation in the jurisdiction. Similarly, the law requires that each of five districts must have equal proportions of voting populations in the county, suggesting that each district contains 20 percent of county's adult populations. The Fourth supervisorial district, however, has the smallest percentage of adult county residents (18.0 percent), while the Third district has the largest (21.2 percent). Potential jurors in the master grand jury list also show that residents of the Fourth district have the least representation (13.8 percent), while residents of the First district have the greatest representation (23.3 percent). The comparative disparity for the Fourth district suggests that approximately one out of every four is excluded from the master grand jury list (-23.3 percent), and the representative disparity is not due to chance but instead to non-random factors (p<0.0002).

The district breakdown of thirty grand jurors also shows that only 6.7 percent of grand jurors came from the Fourth (n=2), while 26.7 percent of grand jurors came from the First district (n=8), suggesting that Hispanic underrepresentation on both the grand jury and the master grand jury list may be attributed to the geographical underrepresentation of Hispanics in dominant supervisorial districts. In other words, the gerrymandering of the supervisorial district might have led to the exclusion of Hispanic-dominant geographical areas or voting precincts from the defined boundary of the Santa Cruz judicial district.

   23.3%

   20.5%

  2.8%

  13.6%

    26.7%

   20.5%

  6.2%

    30.2%

  6.7

-62.82

- 1.611 

1. The figure suggests that more than three out of every five grand jurors in the Fourth Supervisorial District were systematically underrepresented in the 1991-1992 grand jury.

2: The p=0.0002, i.e., the likelihood the exhibited disparity would occur by chance is two in ten thousand.

Map 1 shows z-test statistics for Hispanic representation of grand juries in the master grand jury list by supervisorial districts. Each boundary in the map shows a voting precinct in a supervisorial district. The Fourth supervisorial district, especially in Watsonville areas, shows statistically significant underrepresentation, suggesting that Hispanic representation in the master grand jury list is significantly lower than Hispanic proportions in the community. Conversely, the precincts in the First and Third supervisorial districts show statistically significant over-representation of Hispanic jurors in the master grand jury list. Those findings are consistent in Hispanic representation by the supervisorial districts as shown above.

Table 4 shows the Hispanic composition of the master grand jury list and Table 5 the composition for the final thirty grand jurors, by supervisorial district. Table 4 shows that while the majority (51.5 percent) of residents in the Fourth district are Hispanic, only 17.1 percent of their Hispanic jurors were included in the master grand jury list. This suggests that more than two out of three residents in the fourth district are excluded from the master grand jury list (-66.9 percent), and that the likelihood of this disparity could occur by chance is less than one in 10 million trials. Similarly, while the largest exclusion of Hispanic grand jurors occurs in the Fourth district, all other supervisorial districts also have substantial underrepresentation of Hispanic jurors in the master grand jury list.

The finding suggests that all supervisorial districts, except the Fourth, had six or more residents selected for grand jury service. While 1,100 potential jurors were initially considered as grand jury candidates, only 24 grand jurors were selected from the original master grand jury list and the Fourth district had only one Hispanic person representing the entire district. In fact, among 65 potential jurors interviewed for grand jury service, the same Hispanic person was the only representative from the Fourth district.

     4.2% 

      8.2%

   -4.0%

    -48.8%

   0.01*

     0.00***

17.1  

  51.7 

-34.6  

       0.00****

   5.4 

 0.02* 

17.0   

*p <0.05 ; **p <0.01; ***p <0.001; ****p <0.0001

1. Total number of jurors in the 1991-92 master grand jury list was 1,100.

2. Hispanic surnames were identified by the 1980 Census List of Spanish Surnames.

3. The information Services Department of Santa Cruz County supplied the information on the Hispanic composition of the five supervisorial districts (see Exhibit A in the Declaration of Mary Dunn, Supervising Data Processing Program Analyst, in response to motion for grand jury discovery -- No. CR 5581).

     8.2%

   10.4%

  8    (0)3

6    (0)

2    (0)

2    (0)

0    (0)

7    (1)

7    (1)

0    (0)

 0    (0)

 0     (0)

6    (2)

 4    (2)

2    (0)

0    (0)

2    (0)

2    (1)

1    (1)

1    (0)

 0    (0)

1    (0)

  7.5 

7   (0)

6    (0)

1    (0)

1    (0)

0    (0)

30  (4)

 24   (4) 

 6    (0)

3    (0)

3    (0)

1. Three grand jurors, not on the 1991-1992 master grand jury list, were listed in the 1990-1991 master grand jury list and actual 30 member grand jury in 1990-91.

2. Names of three jurors selected from a special list did not include names in two master grand jury lists in 1990-91 and 1991-92 or the 30 grand jury for 1990-1991, a previous year.

3. The number in a parenthesis shows Hispanic jurors.

4. The column does not total to 100% due to rounding error.

While 24 grand jurors were selected from the master grand jury list, the remaining six were hand picked by the jury commissioner and the judge (20 percent of the thirty grand jury members). Three grand jury holdovers came from the previous year of grand jury service and remaining three grand jurors were nominated by the judge and the jury commissioner. The data show that none of the six grand jurors were Hispanic. While the local rule requires six grand jurors be selected from each supervisorial district, thus maintaining the proportional grand jury representation in the community, Table 5 also suggests that the final grand jury only includes two representatives from the Fourth district: one came from the original master grand jury list and another was nominated by the judge and the jury commissioner from the special list of grand jury candidates prepared by the mayor and the police chief of the Fourth district.

DISCUSSION

The present analysis reveals that in 1991-1992, 20,000 jury candidates were processed through the entire grand jury selection procedure, but only one person from the Fourth Supervisorial district was selected for grand jury service. Since the Fourth Supervisorial district has the largest concentration of Hispanic residents in the county, it is important to note that any procedure possibly discriminating against jury representation of residents in the Fourth district would directly impact Hispanic participation on the grand jury. As Figure 1 indicates, out of 65 potential jurors who were interviewed for jury service, only one juror resided in the fourth district.

The present analysis also reveals that the geographical location of supervisorial districts and the distance to the courthouse may play an important role in eliminating a large proportion of potential grand jurors from the Fourth district. For instance, the City of Watsonville, located in the heart of the Fourth district, is approximately fifteen miles away from the Santa Cruz Superior Court, which is located in the Third supervisorial district. Among five populous cities in the county, Watsonville is the farthest from the courthouse, connected only by Pacific Coast Highway 1. Since grand jury sessions normally begin in early evening, it is not unusual that the traffic jam forces residents of the Fourth district to spend half an hour or more on the highway before reaching the courthouse. Thus, grand jury service may have been considered to place extra burdens on potential grand jurors from the Fourth district. A recent survey of Santa Cruz residents indicates that a large proportion of potential jurors would be willing to serve on the jury if transportation service were made available. The 1995 Santa Cruz community survey shows that 77.2 percent of Hispanic residents said that they would be willing to serve on the jury "if transportation to and from the courthouse were provided" for them.¹¹ (see Table 6) The survey also suggests that, besides Hispanic jurors, the unemployed and those with less education and with limited English language skills were willing to serve on juries if transportation service was provided for jury duties (72.0 percent, 60.7 percent, and 80 percent for the unemployed, those with high school education or less, and those with well or not well English language proficiency, respectively).

Notes: The four questions are phrased as follows: (1) "If you were paid an hourly minimum wage for jury duty, would you be willing to serve on the jury?;" (2) "If transportation to and from the courthouse were provided for you, would you be willing to serve on the jury?;" (3) "If your company did pay while you were on jury duty, would you be willing to serve?;" (4) "Does your company pay you while on jury duty?."

1. The level of respondents' language proficiency was rated by interviewers.

Many Hispanic residents in Santa Cruz County do not speak English as their first language, and self-evaluations of their language skills may also have disqualified them for grand jury service. The 1990 Census information indicates that 4,987 of Hispanic adults in Santa Cruz County spoke English "not well" and 5,475 "not at all." Since the law specifies that the jurors must be "possessed of sufficient knowledge of the English language" (California Penal Code Section 893 (3)), those who speak English "not at all" may not qualify for jury service. Thus, after excluding those Hispanics from the pool of potential grand jurors, eligible Hispanics may be reduced to 14.4 percent of all adult populations in the county, instead of seventeen percent. The problem of their exclusions from the eligible jurors' pool, however, is that potential jurors who do not speak English "not well" or "at all" may still be considered eligible for the grand jury: (1) because the census examines a "speaking" skill only, failing to consider other dimensions of English language proficiency, including listening, reading, writing, and other relevant understandings of English language, and (2) because a large proportion of criminal defendants and witnesses are Hispanic, grand jurors who may lack English proficiency but share the same language with witnesses or defendants may be better suited for grand jury service due to their superior understandings of similar cultures and the subtlety of the information presented to them.

Research shows, for example, that the average rate of personal victimization due to violence crimes (per 1,000 persons age twelve and older) is highest among racial and ethnic minorities -- blacks (72.6) and Hispanics (62.5) as compared with whites (51.8) (U.S. Dept. of Justice 1994). Since crime victims are more likely to be members of racial and ethnic minorities, grand jurors who share the same culture and language with witnesses may have a greater understanding of testimony and present greater legitimacy to the grand jury proceeding.¹²

As related to jurors' language skills, if jurors who may be self-conscious of their lack of English proficiency are repeatedly asked of their language competency at various stages of jury selection, they are more likely to develop the feeling of suspicion and distrust on the part of the criminal justice personnel as well as the jury selection system. For instance, before reaching the interview sessions with a jury commissioner or a judge, Hispanic jurors are questioned about their English language abilities at least three times: First, when they are sent the first jury qualification questionnaire; second, when they are sent the special jury qualification questionnaire for the grand jury duty; and third, when they appear for the orientation the jury commissioner checks their jury qualifications, including language proficiency. Being repeatedly asked and questioned about their levels of English proficiency, many Hispanic potential jurors may have developed the feeling of mistrust or distrust on the part of the jury selection system. In Santa Cruz County, among 181 potential grand jurors who were requested to appear the courthouse for orientations, fifteen of them were Hispanic. However, by the time a jury commissioner contacted them for personal interviews with a judge and/or a jury commissioner for further screenings, ten Hispanic jurors reconsidered serving on the grand jury (66.7 percent). While other factors might have affected their decision, perceived distrust and skepticism might have played an important role in eliminating a large number of potential Hispanic jurors.

Another possible explanation for Hispanic underrepresentation on grand juries is that Hispanics are more likely than other racial and ethnic groups to ask for excuses based on economic and personal hardship. Jury studies show that the economic background of prospective jurors is one of the most important determinants of jury participation (Fukurai et al. 1991b; Fukurai et al. 1993). For instance, potential jurors who are daily wage earners or employed in less secure labor market sectors may be unable to take necessary time off to serve on the jury. In Santa Cruz County, the largest number of daily wage earners and seasonal farm workers is found in the Fourth district. According to the 1990 U.S. Census, the average of the median incomes for households in the Fourth district is $28,605, the lowest of the five supervisorial districts, compared with the First district, which has the highest average median income of $43,298 .¹³ Since grand jury service pays only five dollars per day and the grand jurors are required to serve for twelve months, many residents in the Fourth district may not view the grand jury duty favorably and ask to be excused from jury service with higher rates than the residents in other districts.

The 1995 Santa Cruz community survey suggests several possible strategies to increase Hispanic jury participation. For instance, the survey finds that only 33 percent of Hispanic jurors work in organizations that have salary continuation plans for jury duty, while forty percent of whites work in organizations that pay for jury service (see Table 6; 33.3 percent and 40.7 percent for Hispanics and whites, respectively). However, approximately three fourths of potential Hispanic jurors respond that they would be willing to serve on juries if their employers paid them for it (76.5 percent for Hispanics and 80.1 percent for whites). Similarly, 77 percent of Hispanic jurors indicate that they are willing to serve on juries if they are paid an hourly minimum wage for jury duty (77.2 percent and 72.3 percent, respectively, for Hispanics and whites). These findings suggest that organizational resources may be an important determinant of jury participation among Hispanic residents and that increased jury fees may lead to greater Hispanic grand jury participation.

Another factor that may link economic factors to jury participation is varying geographical mobility patterns among different racial groups. Since potential jurors must live twelve months before establishing their residency in the jurisdiction, highly mobile Hispanics who fail to establish their residency do not qualify for jury service. The 1990 U.S. Census shows that Hispanics in Santa Cruz County exhibit a higher residential mobility (57.7 percent) than whites (54.2 percent), while blacks and Asians have higher mobility rates than Hispanics (72.9 percent and 59.1 percent, respectively). The higher residential mobility of blacks and Asians, however, is not considered to be significant because they only constitute 0.9 percent and 3.4 percent, respectively, of the county's adult populations (U.S. Census 1991). The data also show that Hispanic residents' mobility patterns are more likely to be local -- short distance geographical mobility that takes place within the same county. This suggests that the large proportion of Hispanics still remain as legal residents of the county--36.1 percent of Hispanics moved within the county, the largest figure among four racial groups; 28.8 percent for whites; 25.9 percent for blacks; and 22.6 percent for Asian and Pacific islanders). In other words, while many Hispanics may have changed their addresses, they could be easily traced by such means as sending the follow-up mail or by forwarding the change of addresses.

Key-Man Selection and Hispanic Representation

The last and perhaps the most controversial issue concerning racial minority grand jury representation in California is the use of key-man selection methods. The law of grand juries does not require that the sitting grand jurors be drawn at random (California Penal Code section 903.3). There are varying mandates with respect to a county's prerogative to impanel additional grand juries when necessary (California Penal Code section 904.6).¹⁴ While the selection of petit jurors requires the use of random selection for identifying and selecting eligible jurors from a fair cross-section of the community, the California law allows a small handful of public officials such as judges and jury commissioners to select and appoint grand jurors. While the use of "key-man" selection scheme is prohibited in comprising federal grand juries, many state courts still allow them to select potential members of grand juries, especially in the small counties with considerably limited numbers of available prospective grand jurors (Benoklaitis 1975; Benoklaitis and Griffin-Keene 1982).

The analysis of the 1991-92 grand jury selection procedure reveals that screening players, including the interviewing judge, the jury commissioner and office clerks, the major, and the police chief, are all members of the same race -- white. Present analyses also finds that the jury commissioner failed to contact a large number of prominent Hispanic leaders from the Fourth supervisorial district and did not seek their advice for potential Hispanic grand jurors. The Fourth district has a largest number of politically active Hispanic organizations in the county and many of those organizations were created after the 1989 "Loma Prieta" earthquake that destroyed a large portion of Hispanic residential areas in Watsonville, which is very close to the epicenter of the quake. Rather than contacting prominent Hispanic leaders from local Hispanic organizations, a jury commissioner decided to seek the advice of the mayor of Watsonville and its police chief for the special list of prospective grand jurors in the district.¹⁵ While the jury commissioner may not have had any specific intent to discriminate against Hispanic residents, present research finds that three jurors selected from a special list solicited by the jury commissioner, and three holdovers chosen by the judge from the previous year's grand jury lists, belong to the same race as their screening players.

Affirmative Action Strategies and Hispanic Grand Jurors

Given the array of procedural anomalies and racially discriminatory factors inherent in California's grand jury selection procedures, the unfailing methods to ensure the placement of Hispanic jurors in the final grand jury box may be the use of affirmative action mechanisms to create racially heterogeneous and representative juries. Past research has substantiated that two distinct forms of affirmative action jury selection have been utilized in the U.S. and England to ensure racially diverse grand juries: (1) the split or party jury (i.e., the jury de medietate linguae) and (2) the racially proportionate model (i.e., the Hennepin grand jury model). The first affirmative action jury selection model has existed in the Anglo-American law for nearly several hundred years. The second proportionate grand jury model is currently utilized in Hennepin County, Minnesota. The last section of this paper explores the application of those affirmative action mechanisms in California so that the racial composition of the grand jury can reflect the racially diverse community population in the jurisdiction.

(1) The Split or Party Jury (the Jury de Medietate Linguae). This term, the jury de medietate linguae, literally means jury of the half tongue in Latin because this method of selection applied to people in England or Native Americans in the U.S. who were considered alien or ethnic minorities. Because those individuals spoke a foreign or different language, the mixed alien juries came to be known as juries de medietate linguae. The concept of the jury de medietate linguae first originated in the treatment of Jews in twelfth century England (Constable 1994:18-21). In 1190, King Richard I enacted a charter that provided Jews the right to a half-Jewish jury (Wishman 1986). The English viewed the Jews as aliens in race, religion, and culture and considerable animosity existed against the Jews. Although England subsequently banished all Jews in 1290, foreign merchants from Italy and Germany were also given the privilege of a trial de medietate linguae -- a trial by a jury composed of half of their own countrymen and the other half with English persons qualified to serve as jurors (Constable 1994).

The right of juries de medietate linguae in England endured until 1870, when Parliament passed the Naturalization Act, which permitted aliens to serve on juries and to acquire, hold, and dispose of property in the same manner as a England-born citizen, thereby eliminating the need for the mixed jury privilege (Ramirez 1994:789).

American colonies and the courts also experimented with the use of juries de medietate linguae after English settlers developed their sense of equity, justice, and laws. As early as 1674, the courts in the Plymouth colony used mixed juries composed of half Native Americans and half colonists. The mixed jury was used in early colonies as a way to ensure substantive fairness and enhance the legitimacy of jury verdicts. One jury study noted, "[the mixed jury] was important to the colonists as the natives' perception of unfairness may have triggered bloody unrest or, at least, social tension" (Ramirez 1994:790).

Since independence and the passage of the Bill of Rights in 1789, the U.S. Supreme Court has discussed the right to a jury de medietate linguae only once, in United States v. Wood (1936), in dictum and without analyses. At the state court, potential applications of juries de medietate linguae have also been reviewed and discussed. In 1986, for instance, the Massachusetts Supreme Court examined the applicability of the jury de medietate linguae.¹⁶ Article 12 of the Massachusetts Declaration of Rights drawn from Magna Charta, c.39, entitles the defendants to explicit rights, viz.:"no freeman shall be taken or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed or exiled, or other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land." The defendants argued that Article twelve afforded them the right to a trial by the jury de medietate linguae and that the statutory requirements of citizenship and command of English were unconstitutional.¹⁷ The court, however, held that the right to the jury de medietate linguae was not of constitutional magnitude in this case and that the requirement that jurors speak and understand English and be U.S. citizens withstood constitutional challenges raised under the Sixth Amendment and equal protection clause.¹⁸

The equitability of a mandatory balanced jury must not be ignored, however. The essential feature of the de medietate linguae model is that regardless of the composition of aliens or minority groups in the general population, the composition of the mixed jury is considered to be fixed: Half of the jury comes from the majority and the other half from the minority group. The fixed quota of the jury composition is derived from the acknowledgment that prejudice existed against the minority group and an ordinary jury composition using the traditional method of selection would not necessarily produce a fair result. For example, the fixed quota for Hispanic grand jurors may be viewed as an essential feature of the grand jury composition to ensure both the appearance and substance of fairness and justice in jury verdicts in the racially diverse jurisdiction like Santa Cruz. If the jury de medietate linguae is applied in Santa Cruz County where Hispanics are the largest minority group in the community, either nine or ten of actual grand jury boxes (50 percent of acting nineteen grand jurors) will be reserved for Hispanic members of the community.

(2) The Proportionate Jury Model (The Hennepin County Model). Another model of racially mixed grand juries is found in the courts of Hennepin County, Minnesota, where, according to the 1990 U.S. Census, approximately nine percent of the adult population is minority (4.59 percent African-Americans, 2.22 percent Asian-Pacific islanders, 1.10 percent native Americans, and 1.12 percent Hispanics). The Hennepin model is different from the juries de medietate linguae in that the racial quota for the minority is derived on the basis of the proportional minority composition in the general population. Thus, the racial distribution of the Hennepin model is not fixed, but remains changeable depending on the volatile racial compositions in the jurisdiction. In Hennepin County, the grand jury consists of 23 members; thus, nine percent of the 23 grand jurors is specifically reserved for minority groups, requiring that at least two minority grand jurors sit on every 23 member grand jury. The Hennepin model works as follows.

after randomly selecting the first 21 grand jurors either only one or no minority persons appear on the panel, selection [shall] continue down the list of 55 randomly selected and qualified persons until there are at least two minority persons out of 23 on the grand jury. If no minorities appear in the list of 55 potential grand jurors, another 55 qualified persons should be selected until the goal of at least two minority jurors is obtained. If random selection of the first 21 grand jurors yields two or more minority persons, the selection should simply proceed to the next two persons on the list (Smith 1993).

The task force for the Hennepin model also recommended additional race-neutral reforms to increase the racial representativeness of grand juries, including: (1) integrating lists from the Immigration and Naturalization Service of recently naturalized citizens and tribal membership rolls into source lists; (2) raising the jury fee to thirty dollars per day; and (3) establishing a day-care center for jurors' children (Smith 1993). Those remedies were proposed to increase the grand jury participation from racial and ethnic minorities, those from lower social classes, and women.

If the Hennepin model is used in Santa Cruz County, 17 percent of nineteen grand jury seats may be reserved for Hispanic members of the community, suggesting that at least three grand jury seats may be allocated to Hispanic jurors. Racially mixed grand juries and the use of racial quotas to ensure the member of Hispanic residents may also send a strong positive message to the Hispanic community in Santa Cruz because almost all of Hispanic defendants in the county have been indicted by predominantly, if not all, white grand juries. The notion of racial domination has been strong in the criminal justice system because even petit juries have been historically dominated by racial majority (Lanthier 1999). Affirmative action strategies to increase the racial diversity of the grand jury is of great signifince because the grand jury proceeding ensures that individuals will not fall easily victims to racial pressures or misuse of the legal system by racially biased officials or those of influence (Hurtado v. California, 110 U.S. 516, 554-55. 1884).

Despite the fact that two specific forms of affirmative jury selection have been utilized in the U.S. -- North Eastern states (i.e., the jury de medietate linguae) and Minnessota (i.e., Hennepin County), California laws still allow the key-man selection method to empanel the potential pool of candidates for grand jury service and such practices have led to the significant underrepresentation of racial and ethnic minorities in the grand jury. While geographically imposed "affirmative action" mechanisms have been utilized in Santa Cruz to select an equal number of grand jurors from each of five supervisorial districts in the jurisdiction, representative quotas of geographical residents were not followed by the grand jury selection system in Santa Cruz. Each of equally divided districts failed to represent the equal number of grand jurors in the county. Instead, the dominant Hispanic district had the smallest representation in the grand jury.

Justice Blackmun once pointed out in Rose v. Mitchel, which alleged racial discrimination in the selection of a grand jury foreperson, "[R]acial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole. Perhaps today that discrimination takes a form more subtle than before. But is not less real or pernicious" (443 U.S. 545, 558-59, 1979). Present research shows that the jury commissioner or the judge are still empowered to use their discretion to decide the list of prospective grand jurors and determine the racial and ethnic composition of the grand jury. The analysis also demonstrates that the key-man jury selection remains racially discriminatory and that those key-man selected jurors are less likely to be the members of racial minorities. Since the seriousness of the consequences at stake argues strongly for intervention by the courts or legislatures, both the courts and legislatures need to carefully consider the elimination of such discretionary and, possibly, discriminatory decisions made by screening players and impose the affirmative action mechanism to create racially heterogeneous and representative juries.

CONCLUSIONS

This paper examines racial and ethnic discrimination and disenfranchisement in the selection of Hispanic grand jurors in California. Present research found that racial minorities such as potential Hispanic grand jurors were most likely to be underrepresented in the grand jury because they are less likely to be referred to or selected by jury commissioners or judges for grand jury duties. Although facially legal, such a selection procedure, possibly employing personal and subjective criteria at any point in the process of selecting grand jurors, is susceptible of abuse.

Present research also finds that due to racially segregated residential patterns, potential jurors in minority dominant neighborhoods are less likely to be selected for grand jury service because of the gerrymandered supervisorial district.¹⁹ "Gerrymandering" of legislative voting districts generally refers to deliberate efforts to draw district boundaries to include and exclude certain groups, usually along racial or party-affiliation lines (Brown 1994). Past studies on racial gerrymandering cases focuses on relations between majority and minority cohesiveness and the minority concentration to elect a minority's candidate (Kousser 1993). A racial minority's concentration in a single supervisorial district, for instance, was seen as an effective and racially "advantageous" strategy to elect minority candidates for the board of county supervisors. At the same time, by increasing the minority concentration into a few supervisorial districts and setting a proportional limit on the number of grand jurors for the districts, the minority participation in the grand jury can be effectively controlled and diminished.

We find that the reapportionment of electoral boundaries to create so called "influence districts" for minority residents, and establishing representative quotas of potential jurors for grand jury service from the same districts would act as a restrictive ceiling for Hispanics and further diminish their grand jury participation. Because of the racially discriminatory grand jury selection process, the paper also suggest a possible application of affirmative action strategies to create racially diverse and representative juries. The specific application of race-conscious affirmative mechanisms is of great significance because our society and legal institutions are genuinely committed to correct and eliminate past and present discrimination in jury selection. In order to enhance the public acceptance of the grand jury system and increase the appearance of justice and fairness of the grand jury system, affirmative action in jury selection may be the only means to achieve those goals. 

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1. The U.S. Supreme Court ruled in United States v. Williams (112 S.Ct. 1735, 1992) that the prosecution's failure to give relevant exculpatory evidence to the grand jury is not grounds for dismissal of an indictment. This decision unduly emphasized the grand jury's historical independence and failed to give sufficient weight to its role in shielding people from wrongful prosecution. The increased powers of judicial review flowing from this decision may unduly favor the state. The court also ruled that certiorari can be granted in some cases even if it is for a question the lower courts have not ruled on. See generally Borman (1993).

2. In practice, the main charge will almost invariably be a felony in California, except where the defendant is a public official. During the taking of the testimony offered by either the district attorney or Attorney General in support of a proposed indictment, only the following persons may be present: (1) counsel for the prosecution, an interpreter, a court reporter, the grand jurors, and witnesses.

3. The Jury Selection and Service Act of 1968 requires that jurors be selected from a fair cross-section of the population. For example, see 28 U.S.C. s 1861 (1988). The Act provides that "all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross-section of the community in the district or division wherein the court convenes," and that "[n]o citizen shall be excluded from service as a grand or petit juror in the district courts of the United States ... on account of race, color, religion sex, national origin, or economic status" ; see U.S. v. Branscome, 682 F.2d 484, 485 (4th Cir. 1982) (per curiam) (Act's requirement of objective and random jury selection violated when grand jury formed of volunteers from randomly selected pool). The grand jury may be challenged by either the government or the defendant on the grounds that the jurors were improperly selected or not legally qualified. Composition of a grand jury may be also challenged on equal protection, due process, and Sixth Amendment grounds.

4. See Conn.Gen.Stat.Ann. s 54-45(a) (West 1985) (providing that judge selects grand jury); La.Code Crim.Proc.Ann. art. 413(C) (West 1991) (providing that in New Orleans Parish judge selects twelve grand jurors and two alternates from randomly selected grand jury venire); Neb.Rev.Stat. s 25-1633 (1989) (providing that in larger counties commissioner randomly draws forty names from randomly selected grand jury wheel and forwards those names to board--made up of presiding judge, commissioner, and one other person--that in turn selects from forty names sixteen to serve as grand jurors, plus three alternates); Nev.Rev.Stat. s 6.120 (1991) (providing that in smaller Nevada counties the clerk summons 36 people, whose names are generated by random and self-selection, and from these 36 people judges take turns selecting seventeen grand jurors and twelve alternates); Va. Code Ann. s 19.2-194-195 (Michie 1990) (providing that judges must select five to seven grand jurors from sixty to 120 they selected as venire members); Jefferson v. Morgan, 962 F.2d 1185, 1187 (6th Cir.1992) (describing Tennessee system whereby judge picks grand jurors by hand).

Unlike the grand jury selection procedure, selecting trial (petit) jurors in California must rely on at least two lists--motor vehicle and voter registry--in order to compile a list that reflects a fair cross section of a given jurisdiction. While selecting grand jurors does not necessarily rely on the same source lists, most counties use the same source lists to obtain a sampling of potential grand jurors in the jurisdiction. For greater discussions of the selection of petit jurors, see the California Code of Civil Procedures.

5. The combining of two or more source lists creates problems of name duplication. For instance, some jurisdictions have conceded their computer programs cannot eliminate all duplicate names. Colorado once reported that, even after scanning for duplicate names, ten percent of residents' names appeared more than once on jury master files. Minority jurors' names are less likely to appear twice on multiple source lists, indicating that in a random selection of jurors from the list they have a reduced opportunity of being selected. See generally Fukurai et al. (1993).

6. Since 1993, the grand jury in California has been divided into two different types: (1) criminal and (2) civil grand juries. In Santa Cruz County, the criminal grand jury is selected monthly, rather than yearly, while the civil grand jury is required to serve for a year.

7. In Santa Cruz, California, a private company in Boulder, Colorado, sends a jury qualification questionnaire to every member of potential jurors in the master list. The Information Service Division in the county office supplies the magnetic computer tape that contains names and addresses of 20,000 prospective jurors in the master list and sends it to the Colorado firm. This is done once every year.

8. As previously indicated, two types of potential jurors failed to return the jury qualification questionnaire: (1) undeliverables who were unreacheable by mail because potential jurors changed the place of residence and (2) recalcitrants who received the qualification questionnaire but were unwilling to fill out the questionnaire and return it to the jury commissioner's office.

9. Hispanics are shown to have the highest geographical mobility among racial and ethnic groups, indicating that 23 percent of Hispanic persons move annually, compared with seventeen percent for whites and eighteen percent for blacks. Additionally, the large proportion of recalcitrants are members of racial and ethnic minorities because they are more likely to be skeptical of the criminal justice and court system and are thus reluctant to participate in the jury selection process (Fukurai et al. 1993). The mandated follow-up thus should enhance the level of jury participation by racial and ethnic minorities, though it is rarely exercised.

10. Hernandez v. Texas (347 U.S. 475, 1954) became the first case in which the U. S. Supreme Court considered discrimination against Hispanics as evidenced by the exclusion of Mexican jurors. The Hernandez court determined that, just as color can distinguish a person's race, Spanish names provide ready identification" of members of Hispanic communities (347 U.S. 475 481, 1954). In Castaneda v. Partida (430 U.S. 482, 1977), the court asserted that Mexican Americans were a clearly identifiable class and used the terms "Spanish-surnamed" and "Mexican American" as synonymous. Similarly, in 1985, the California Supreme Court in People v. Tervino held that "'Spanish surnamed' is sufficiently descriptive of a cognizable group" for purposes of abuses of peremptory challenges by the prosecution and concluded that "Spanish-surnamed" describes Hispanics in general (704 P.2d 719 721 (Cal. 1985)). For further discussions of Hispanic surnames and the courts' views on the definition of racial and ethnic cognizable groups, see Simon (1994).

11. In Spring, 1995, the survey was conducted to examine the public's perception of the criminal justice system, jury selection procedures, jury trials, and the death penalty. The representative sample of adult populations was selected (n=317) and the respondents were contacted by random digit dialing and telephone interview methods. For greater discussions of the survey methods and results, see Fukurai (1996, 1997).

12. Related to high Hispanic crime victimization, today's large number of criminal suspects are non-U.S. citizens. Many of them speak Spanish and they are indicted by grand juries for narcotic or other criminal offenses. For instance, because of the drug-related offenses and criminal charges, the number of non-U.S. citizens deported from the U.S. has increased exponentially from 310 in 1981 to 18,870 in 1993 (U.S. Department of Justice, 1994, p.471). Thus, it may be important to consider the selection of grand jurors who understand Spanish language and share the similar culture and life experiences with criminal defendants and potential witnesses.

13. The 1990 Census information provides median income levels for each geographically defined unit, including census blocks and tracts. Thus, in order to generate descriptive statistical figures for supervisorial districts, the average of median incomes for census blocks is computed and presented.

14. For example, Penal Code Section 893 states:

(a) A person is competent to act as a grand juror only if he possesses each of the following qualifications: (1) He is a citizen of the United States of the age of eighteen years or older who shall have been a resident of the state and of the county or city and county for one year immediately before being selected and returned. (2) He is in possession of his natural faculties, of ordinary intelligence, of sound judgment, and of fair character. (3) He is possessed of sufficient knowledge of the English language. (b) A person is not competent to act as a grand juror if any of the following apply: (1) The person is serving as a trial juror in any court of this state. (2) The person has been discharged as a grand juror in any court of this state within one year. (3) The person has been convicted of malfeasance in office or any felony or other high crime. (4) The person is serving as an elected public officer.

15. The Hispanic grass-roots organization called the Western Workers' Association, has more than 10,000 members in Watsonville areas as well as the adjacent Monterey County. The primary task of the organization is to provide legal and medical assistance to needy families in the area as well as creating community-based working groups to help Mexican and other Hispanic farm workers in Santa Cruz County. There are also various Hispanic organizations in the county to combat drug-related crimes and gang-related activities, and to educate the Hispanic youth in order to prevent and deter future deviant behaviors and criminal activities. One of the organizations is headed by Dr. John Brown Childs, Professor of Sociology at the University of California, Santa Cruz, who is actively involved in creating community-based grass-roots movements to facilitate inter-racial and intra-ethnic communications to prevent gang-related conflicts and activities in Santa Cruz County.

16. Commonwealth v. Richard Acen, Jr. and Commonwealth v. Alberto Penabriel (396 MASS. 472, 487 N.E.2D 189 1986). In separate trials, defendants were tried and convicted in the Suffolk county Superior Court. Appeals were consolidated for purposes of briefing and oral argument in the appeals court. One defendant's application for direct appellate review was granted, and second case was transferred to the Supreme Judicial Court on Court's own motion.

17. Id at 396 MASS. 472, 473, 487 N.E.2D 189, 191.

18. Id at 396 MASS. 472, 475, 479, 480, 487 N.E.2D 189, 191, 194, 195.

19. Some legal scholars use the term, "jurymandering," which refers to strategies to exclude and include potential jurors, usually along racial and ethnic lines. See Rosen (1992).

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Hiroshi Fukurai

Hiroshi Fukurai is an associate professor of sociology at the University of California, Santa Cruz. His research interests include racial inequality in jury selection, legal and political construction of race, and advanced quantitative statistics. His publications include Race and the Jury (Plenum, 1993) and articles in journals such as the Journal of Criminal Justice, American Sociologist, and the National Black Law Journal. He is currently working with Japanese attorneys and legal practitioners to reintroduce the criminal jury system in Japan.

Contact information: Department of Sociology, University of California, Santa Cruz, Santa Cruz, CA 95064; phone: 831.459.2971; fax: 831.459.3518; e-mail: hiroshi@cats.ucsc.edu; WWW: http://socscisvr-01.ucsc.edu/Hiroshi.

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