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64 Stan. L. Rev. 1503 (2012)
The American Jury: Can Noncitizens Still Be Excluded

handle is hein.journals/stflr64 and id is 1517 raw text is: THE AMERICAN JURY: CAN NONCITIZENS STILL BE EXCLUDED? Amy R. Motomura* Though noncitizens can be, and frequently are, judged by juries, they are categorically excluded from serving on them. In this Note, I explore the implica- tions of this exclusion from demographic, functional, and doctrinal perspectives. The demographic portrait of noncitizens and minorities in the United States shows that the citizenship requirement for jury service results in the exclusion of significant numbers of residents in certain regions, and that this exclusion is highly skewed by race and ethnicity. The exclusion and resulting decrease injury diversity has potentially negative effects on the jury's decisionmaking and its in- stitutional legitimacy, and it excludes many residents who may be integrated into the community for many other purposes. Doctrinally, the exclusion of noncitizens from the jury might be challenged as unconstitutional on several grounds. Alt- hough some of the constitutional arguments are unlikely to be persuasive to the courts, I argue that there is room under the current doctrine for claims based on rights of the party before the jury-either under equal protection or the fair cross-section requirement of the Sixth Amendment-to succeed if properly framed. INTRODUCTION ....................................................................................................1504 I. THE DEMOGRAPHICS OF NONCITIZENSHIP ......................................................1506 II. THE EFFECT OF THE CITIZENSHIP REQUIREMENT ON JURY TRIALS ................1510 A. Jury as Decisionmaker.............................................................................1510 1. Nonm inority citizen parties ...............................................................1510 2. N oncitizen p arties .............................................................................1511 3. M inority parties ................................................................................1512 B . Jury as Civic Institution ...........................................................................1515 III. LEGAL CHALLENGES TO THE CITIZENSHIP REQUIREMENT .............................1516 A. The Citizenship Requirement Is Not Constitutionally Compelled ............ 1516 B. Challenges to the Citizenship Requirement as Excluding on the Basis of C itizenship ............................................................................................15 18 1. Rights of potential jurors ..................................................................1519 * J.D., Stanford Law School, 2012. I would like to thank Janet Alexander for a won- derful class that led to an early draft of this Note and for conunents on that draft; Ingrid Eagly for comments on a later draft; Remy Durand for his assistance with the figures; and Hiroshi Motomura for his comments and advice throughout the process. 1503

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