Recent Developments: The Right to a Fair Cross-Section of the Community and the Black Box of Jury Pool Selection in Arkansas

A Washington County, Arkansas court conducted a hearing on October 15, 2018 on a criminal defendant’s motion to compel discovery to assure a fair and accurate cross-section of the community for the jury as guaranteed by the United States and Arkansas Constitutions. At the hearing, the jury coordinator for the Circuit Clerk’s office testified that counties may elect to use a state-sponsored jury selection computer program, or they may use proprietary programs. Washington County uses a proprietary computer program to select the jury pool from a list of registered voters. The clerk described how her office takes an extra step to follow up with property owners, thus making them more likely to be summoned for jury duty. When discussing individuals who cannot afford phone service or who do not have voice mail, she stated, “You can’t talk to them. So I don’t reach that person.” She did not know how individuals with criminal records are excluded from the pool so that individuals with duplicate names – which is common, for example, in the Hispanic community – are not excluded. When asked about her system of calling and leaving messages, she stated she does not have a translator because “I’ve never had anyone talk to me that I couldn’t understand.” Although the United States Supreme Court has noted that “without inspection, a party almost invariably would be unable to determine whether he has a potentially meritorious jury challenge,” the Washington County judge concluded that the details of the process and software used for creating the venire are “not discoverable in this case because. . .you have not presented any evidence you would find anything.