What Makes a Jury Impartial: The Constitutional Promise and Modern Reality

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Under the Sixth Amendment in criminal prosecutions and the Jury Selection and Service Act of 1968 in federal court, an impartial jury requires two things. The jury pool must represent a fair cross section of the community, and seated jurors must decide the case on the courtroom evidence.

A 2021 Equal Justice Initiative report found that people of color are excluded at every step of jury selection, starting with voter registration lists and undeliverable summonses. At trial, a 2020 UC Berkeley Law study found that courts define “race-neutral” reasons under Batson v. Kentucky (1986) so expansively that prosecutors rely on a “laundry list” of approved explanations.

What the Constitution Requires of a Jury

As the Library of Congress explains in the Constitution Annotated, Sixth Amendment impartiality has two parts: a representative jury pool and unbiased jurors. In federal court, 28 U.S.C. § 1861 declares as federal policy that all litigants entitled to trial by jury have the right to grand and petit juries selected at random from a fair cross section of the community.

As the Constitution Annotated notes, that fair cross-section rule “applies only to jury panels or venires from which petit juries are chosen, and not to the composition of the petit juries themselves,” meaning the seated trial juries. In Taylor v. Louisiana (1975), the Supreme Court struck down a Louisiana rule that excluded women from jury venires unless they had filed a written declaration of their desire to serve.

Four years later in Duren v. Missouri (1979), the Court set out a three-part test for a prima facie violation, an initial showing that shifts the burden to the government. A defendant must show that the excluded group is “distinctive,” that its share in venires is not “fair and reasonable,” and that the gap comes from “systematic exclusion.” Applying those standards in Duren, the Court invalidated a Missouri law that granted women an automatic exemption upon request.

As the Constitution Annotated explains, the second part of the Sixth Amendment guarantee requires seated jurors to be unbiased and “willing to decide the case on the basis of the evidence presented,” citing Skilling v. United States (2010). When local news coverage saturates a community so that a defendant is unlikely to obtain a disinterested jury, the defendant has a right to a change of venue under Irvin v. Dowd (1961). Under Skilling, judges weigh community size, blatantly prejudicial stories, time before trial, and whether the verdict supported prejudice.

Once seated, a jury in a serious criminal trial must also be unanimous to convict under Ramos v. Louisiana (2020). Reversing a 10-to-2 Louisiana conviction by a 6-to-3 vote, Justice Neil Gorsuch wrote for the Court that the Sixth Amendment right to “trial by an impartial jury” requires a unanimous guilty verdict for a serious offense in state and federal courts.

Dissenting for three justices in Ramos v. Louisiana, Justice Samuel Alito, joined by Chief Justice John Roberts and in part by Justice Elena Kagan, argued that Apodaca v. Oregon (1972) should stand under stare decisis. He wrote that Louisiana and Oregon had relied on non-unanimous verdicts for decades.

Who Gets Summoned and Why Pools Fall Short

Before lawyers question anyone in court, source lists and eligibility rules determine who is summoned into the jury pool. Under 28 U.S.C. § 1863, each federal district court must adopt a written plan to draw prospective jurors from voter registration lists or lists of actual voters. The plan must also prescribe “some other source or sources of names” in addition to voter lists “where necessary” to protect a fair cross section.

Under 28 U.S.C. § 1865(b), a federal juror must be a U.S. citizen aged 18 or older with one year of district residency and English proficiency. The statute also disqualifies anyone with a disabling mental or physical infirmity. In addition, it bars anyone with a pending charge or conviction for a crime punishable by imprisonment for more than one year whose “civil rights have not been restored.”

Once summoned, a prospective juror may ask to be excused under 28 U.S.C. § 1866(c) upon showing “undue hardship or extreme inconvenience.” The court may excuse the juror for a fixed period and summon the person again later.

For those who serve, 28 U.S.C. § 1875 treats federal jury duty as a leave of absence and bars an employer from firing, threatening, or coercing any permanent employee because of service. Violators face lost wages, employee reinstatement without loss of seniority, attorney’s fees, and a civil penalty up to $5,000 per violation.

In a 2021 report, the Equal Justice Initiative found that upstream selection rules still reduce minority and low-income representation in jury pools. Because economic, historical, and geographic barriers lower voter registration, drawing pools mainly from voter rolls underrepresents people of color. Adding driver’s license lists does not close the gap: EJI cited a 2005 Wisconsin study showing that about 80 percent of white residents had driver’s licenses, compared with about half of African American and Latino residents.

Outdated mailing records and low daily pay shrink the pool further. The Equal Justice Initiative reported that an average of 12 percent of jury summonses nationwide return as “undeliverable,” and people with low income levels who move more frequently have a higher rate of undeliverable summonses.

Federal courts pay jurors $50 per day under 28 U.S.C. § 1871(b), plus up to $10 more per day for petit jurors after 10 days if the trial judge approves. In state courts, the Equal Justice Initiative noted that most states do not require employers to pay workers on jury duty, only New Mexico pays minimum wage, and some courts pay as little as $5 per day.

According to the Equal Justice Initiative, in most states “being charged with or convicted of a criminal offense can result in lifetime exclusion from jury service.” Misdemeanor convictions bring lifetime jury exclusion in Maryland, New Jersey, Oregon, Pennsylvania, South Carolina, and Texas. Pending felony charges cause temporary exclusion in Connecticut, Kentucky, Louisiana, and Massachusetts, while Florida, Maryland, Texas, and Washington, D.C., exclude people charged with a misdemeanor.

Even when venires are skewed, Equal Justice Initiative researchers reported that courts typically require an “absolute disparity” above 10 percent between a group’s population share and its pool share. Courts also require proof of intentional discrimination or a specific “systematic” practice causing the gap. EJI reported that only one fair-cross-section claim succeeded in any state or federal court nationwide over the prior 10 years.

How Courts Police Bias in Jury Strikes

When prospective jurors reach the courtroom for voir dire questioning, federal law divides removals into challenges for cause and peremptory challenges. Under 28 U.S.C. § 1870, the judge decides all challenges for cause or favor, while in federal civil cases each party gets three peremptory challenges without showing cause.

In Batson v. Kentucky (1986), the Supreme Court ruled under the Equal Protection Clause that prosecutors may not use peremptory strikes based on race. As Justice Kavanaugh explained in Pitchford v. Cain (2026), Batson uses three steps. First, the defendant shows a prima facie case of racial strikes. Second, the prosecutor gives a race-neutral reason. Third, the trial judge decides whether that stated reason is pretextual.

Recent Supreme Court rulings show how contested Batson enforcement remains in capital cases. In Flowers v. Mississippi (2019), the Court reversed a Mississippi conviction by a 7-to-2 vote in an opinion by Justice Kavanaugh, while Justice Thomas dissented, joined in part by Justice Gorsuch. Across Curtis Flowers’s six trials, the lead prosecutor struck 41 of 42 prospective Black jurors, including five of six at the sixth trial, questioned Black and white jurors differently, and struck a Black juror who was similar to white jurors kept on the panel.

On May 28, 2026, the Court returned to Mississippi jury strikes in Pitchford v. Cain, reversing the Fifth Circuit by a 5-to-4 vote. In Terry Pitchford’s capital murder trial, the prosecutor struck four of five Black potential jurors, and the trial judge accepted the State’s race-neutral reasons without letting defense counsel argue pretext at step three. When counsel raised the issue again, the judge twice cut off counsel and said, “I think you already made those, and they are clear in the record.”

Writing for the Court in Pitchford v. Cain, Justice Kavanaugh held that the Mississippi Supreme Court “unreasonably applied the clearly established Batson precedents” by ruling that Pitchford waived his pretext objection. The Court reversed the Fifth Circuit’s judgment and remanded Pitchford’s claim for federal habeas relief under 28 U.S.C. § 2254(a), which requires a state prisoner to prove custody in violation of the Constitution or federal laws.

Dissenting for four justices in Pitchford v. Cain, Justice Gorsuch argued that the Antiterrorism and Effective Death Penalty Act of 1996 bars relief unless no fairminded jurist could agree with the state court. He noted that prosecutors gave race-neutral reasons at step two, including one juror’s late return after lunch and mental health history and two jurors’ brothers with violent-crime convictions. Justice Gorsuch added that Pitchford’s lawyers never compared jurors at trial and one attorney later stated she had not argued pretext.

In a June 2020 report, the UC Berkeley School of Law Death Penalty Clinic wrote that decades of research show the Batson procedure “does not significantly reduce, much less eliminate, discrimination in jury selection.” Evaluating 683 California Courts of Appeal decisions from 2006 through 2018, the clinic found Batson error in just 18 cases. Over 30 years, the California Supreme Court reviewed 142 Batson cases and found a violation only three times, or 2.1 percent.

As a 2022 Harvard Law Review analysis noted, Justice Thurgood Marshall warned in Batson that the ruling would “not end the racial discrimination that peremptories inject into the jury-selection process.” Beginning in 2018, several states moved past Batson. Washington adopted General Rule 37 in 2018 to block strikes where an objective observer could view race or ethnicity as a factor.

In later reforms, California enacted Code of Civil Procedure section 231.7 in 2020 for criminal trials starting in 2022. California then amended it under SB 645 in 2025 to cover civil rights, hate crime, and civil commitment trials starting in 2026. The Arizona Supreme Court went furthest by issuing Order No. R-21-0020 in August 2021 to end peremptory strikes statewide starting in 2022.

Arizona’s reform drew nearly unanimous opposition from trial lawyers during the 2021 public comment period. Practitioners noted that judges usually ask whether a juror who reveals a bias can “set it aside” and “follow the law,” and “are often reluctant to strike” jurors who say they can be fair and impartial. Without peremptory strikes, lawyers warned, litigants have no recourse when a judge denies a challenge for cause, and Arizona’s bar association urged more extensive voir dire questioning.

How Courts Guard Deliberations and Verdicts

To guard against outside influence during trial, a Judicial Conference committee issued Proposed Model Jury Instructions in June 2020 for federal judges. Under those model instructions, judges tell jurors to decide the case solely on courtroom evidence and law and not to use cellphones or computers to research the case. The instructions also bar jurors from discussing the case on email, text, blogs, or social media apps “(like Twitter, Facebook, Instagram, LinkedIn, YouTube, WhatsApp, and Snapchat).”

After a verdict, the Constitution Annotated explains, Federal Rule of Evidence 606(b) and most states generally “forbid the impeachment or questioning of a verdict by inquiring into the internal deliberations of the jury.” In Peña-Rodriguez v. Colorado (2017), two jurors signed affidavits reporting anti-Hispanic bias by Juror H. C. after a jury convicted the defendant of “unlawful sexual contact and harassment.” The Supreme Court reversed the Colorado Supreme Court’s judgment 5-to-3 and remanded. Justice Anthony Kennedy held that clear statements of “racial stereotypes or animus to convict” override the no-impeachment bar.

Writing for three justices dissenting in Peña-Rodriguez v. Colorado, Justice Samuel Alito wrote that for centuries it had been “the judgment of experienced judges, trial attorneys, scholars, and lawmakers” that letting jurors testify after trial about deliberations would undermine trial by jury. Joined by Chief Justice John Roberts and Justice Clarence Thomas, Justice Alito wrote that while judges and lawyers work under strict rules with every word recorded, jurors are ordinary people expected to speak, debate, and argue freely in the jury room.