439 U.S. 357 (1979), 77-6067, Duren v. Missouri

Docket NºNo. 77-6067
Citation439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579
Party NameDuren v. Missouri
Case DateJanuary 09, 1979
CourtUnited States Supreme Court

Page 357

439 U.S. 357 (1979)

99 S.Ct. 664, 58 L.Ed.2d 579




No. 77-6067

United States Supreme Court

Jan. 9, 1979

Argued November 1, 1978



Petitioner was convicted of crimes in a Missouri State court notwithstanding his contention that his right to trial by a jury chosen from a fair cross-section of his community was denied by provisions of Missouri law granting women who so request an automatic exemption from jury service. Under the challenged jury selection system, before the jury wheel is filled, women may claim exemption in response to a prominent notice on a jury selection questionnaire, and, prior to the appearance of jurors for service, women are afforded an additional opportunity to decline service by returning the summons or by simply not reporting for jury duty. Petitioner established that 54% of the adults in the forum county were women; that, during 8 of the 10 months immediately prior to his trial, only 26.7% of those summoned from the jury wheel were women; and that only 14.5% of the persons on the post-summons weekly venires during this period were women. For the month in which petitioner's jury was chosen, the weekly venires averaged 15.5% women. Petitioner's all-male jury was selected from a panel of 53, of whom 5 were women. The Missouri Supreme Court questioned aspects of petitioner's statistics, but held that the underrepresentation of women on jury venires in the forum county did not violate the fair cross-section requirement set forth in Taylor v. Louisiana, 419 U.S. 522, under which a defendant, in order to establish a prima facie violation of that requirement, must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the group's representation in the source from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation results from systematic exclusion of the group in the jury selection process.

Held: The exemption on request of women from jury service under Missouri law, resulting in an average of less than 15% women on jury venires in the forum county, violates the "fair-cross-section" requirement of the Sixth Amendment as made applicable to the States by the Fourteenth. Pp. 363-370.

(a) If women, who "are sufficiently numerous and distinct from men," are systematically excluded from venires, the fair cross-section requirement cannot be satisfied. Taylor, supra at 531. P. 364.

(b) There is no evidence to show that the 1970 census data on which

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petitioner relied distorted the percentage of women in the forum county at the time of trial, and the court below erred in concluding that jury venires with approximately 15% women are "reasonably representative" of the relevant community. Pp. 364-366.

(c) Petitioner's proof showed that the underrepresentation of women, generally and on his venire, was attributable to their systematic exclusion in the jury selection process at both the jury wheel and summons stages, resulting in the low percentage (14.5%) at the final, venire, stage. Pp. 366-367.

(d) Respondent did not satisfy its burden of showing any significant state interest justifying the infringement of petitioner's constitutional right to a jury drawn from a fair cross-section of the community. It did not how that exemptions other than that for women caused the underrepresentation of women. Nor does exempting all women because of preclusive domestic responsibilities of some women constitute sufficient justification for the disproportionate exclusion of women on jury venire permitted in Missouri. Pp. 367-370.

556 S.W.2d 11, reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, post, p. 370.

WHITE, J., lead opinion

[99 S.Ct. 666] MR. JUSTICE WHITE delivered the opinion of the Court.

In Taylor v. Louisiana, 419 U.S. 522 (1975), this Court held that systematic exclusion of women during the jury selection process, resulting in jury pools not "reasonably

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representative" of the community, denies a criminal defendant his right, under the Sixth and Fourteenth Amendments, to a petit jury selected from a fair cross-section of the community.1 Under the system invalidated in Taylor, a woman could not serve on a jury unless she filed a written declaration of her willingness to do so.2 As a result, although 53% of the persons eligible for jury service were women, less than 1% of the 1,800 persons whose names were drawn from the jury wheel during the year in which appellant Taylor's jury was chosen were female. Id. at 524.

At the time of our decision in Taylor, no other State provided that women could not serve on a jury unless they volunteered to serve.3 However, five States, including Missouri, provided an automatic exemption from jury service for any women requesting not to serve.4 Subsequent to Taylor,

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three of these States eliminated this exemption.5 Only Missouri, respondent in this case, and Tennessee6 continue to exempt women from jury service upon request.7 Today we hold that such systematic exclusion of women that results in jury venires averaging less than 15% female violates the Constitution's fair cross-section requirement.


Petitioner Duren was indicted in 1975 in the Circuit Court of Jackson County, Mo., for first-degree murder and first-degree robbery. In a pretrial motion to quash his petit jury panel, and again in a post-conviction [99 S.Ct. 667] motion for a new trial, he contended that his right to trial by a jury chosen from a fair cross-section of his community was denied by provisions of Missouri law granting women who so request an automatic exemption from jury service.8 Both motions were denied.

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At hearings on these motions, petitioner established that the jury selection process in Jackson County begins with the annual mailing of a questionnaire to persons randomly selected from the Jackson County voter registration list. Approximately 70,000 questionnaires were mailed in 1975. The questionnaire contains a list of occupations and other categories which are the basis under Missouri law for either disqualification9 or exemption10 from jury service.11 Included on the questionnaire is a paragraph prominently addressed "TO WOMEN" that states in part:

Any woman who elects not to serve will fill out this paragraph and mail this questionnaire to the jury commissioner at once.12

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A similar paragraph is addressed "TO MEN OVER 65 YEARS OF AGE," who are also statutorily exempt upon request.13

The names of those sent questionnaires ar placed in the master jury wheel for Jackson County, except for those returning the questionnaire who indicate disqualification or claim an applicable exemption. Summonses are mailed on a weekly basis to prospective jurors randomly drawn from the jury wheel. The summons, like the questionnaire, contains special directions to men over 65 and to women, this time advising them to return the summons by mail if they desire not to serve. The practice also is that even those women who do not return the summons are treated as having claimed exemption if they fail to appear for jury service on the appointed day.14 Other persons seeking to claim an exemption at this stage must make written or personal application to the court.

Petitioner established that, according to the 1970 census, 54% of the adult inhabitants of Jackson County were women. He also showed that, for the periods June-October, 1975, and January-March, 1976,15 11,197 persons were summoned, and that 2,992 of these, or 26.7%, were women. Of those summoned, 741 women and 4,378 men appeared for service. Thus, 14.55 (741 of 5,119) of the persons on the post-summons weekly venires during the period in which [99 S.Ct. 668] petitioner's jury was chosen were female.16 In March, 1976, when petitioner's

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trial began, 15.5% of those on the weekly venires were women (110 of 707).17 Petitioner's jury was selected from a 53-person panel on which there were 5 women; all 12 jurors chosen were men.18 None of the foregoing statistical evidence was disputed.

In affirming petitioner's conviction, the Missouri Supreme Court questioned two aspects of his statistical presentation. First, it considered the census figures inadequate because they were six years old, and might not precisely mirror the percentage of women registered to vote. Second, petitioner had not unequivocally demonstrated the extent to which the low percentage of women appearing for jury service was due to the automatic exemption for women, rather than to sex-neutral exemptions such as that for persons over age 65.

The court went on to hold, however, that, even accepting petitioner's statistical proof, "the number of female names in the wheel, those summoned and those appearing were well above acceptable constitutional standards." 556 S.W.2d 11, 15-17 (1977).19 We granted certiorari, 435 U.S. 1006 (1978), because of concern that the decision below is not consistent with our decision in Taylor.


We think that, in certain crucial respects, the Missouri Supreme Court misconceived the nature of the fair cross-section inquiry set forth in Taylor. In holding that "petit juries must be drawn from a source fairly representative of the community," 419 U.S. at 538, we explained that

jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude

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distinctive groups in the community, and thereby fail to be reasonably representative thereof.

Ibid.20 In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive"...

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