New Location, Same Tradition: Goldstein & Orr Has Moved Offices Learn More

Client Testimonials
  • "I have known Ms. Orr for over a decade and she is an excellent criminal defense attorney with high ethical standards." by Peer Attorney Read More
  • "I'm very impressed how Mrs. Orr handled everything, she is very professional and I recommend Mrs. Orr if your in need an attorney for a white collar case!!!" by Anonymous Former Client Read More
  • "The best of the best above all the rest. Accept no substitutes." by Richard R. Read More
  • "They are next level on intelligence and understanding. My full respect to these attorneys." by Amber R. Read More
  • "I was so fortunate and privileged to have Mr. Goldstein in my corner. You will find none better." by Stephen Read More


The party establishing the composition of a grand jury must make a prima facie showing that the jury selection procedure systematically produces a group that is not representative of a fair cross section of the community. See Jefferson v. Morgan, 962 F.2d 1185 (9th Cir. 1992). This showing can be made for as little as a year but requires more than a showing that the defendant’s particular grand jury was under representative of some identifiable group. Duren v. Missouri, 439 U.S 357, 366 (1979); U.S. v. Hyde, 448 F.2d (5th Cir. 1971).

The Supreme Court in Duren v. Missouri, 439 U.S. 357 (1979), identified the elements of a prima facie violation of the fair cross section:

“[T]he defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires 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 representation is due to the systematic exclusion of the group in the jury- selection process.”

See also Atwell v. Blackburn, 800 F.2d 502 (5th Cir. 1986) (stating defendant failed to prove members of group were purposely excluded).

The prima facie test for an equal protection claim is nearly identical. The Supreme Court in Castaneda v. Partida, 430 U.S. 482 (1977), explained the requirements for proving an equal protection violation:

“The first step is to establish that the group is one that is a recognizable, distinct class. . . . Next, the degree of under- representation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. . . . Finally, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.” Id. at 494.

A sufficient statistical showing is made when an identifiable group is under represented by over 10%. Id. at 495; U.S. ex rel Barksdale v. Blackburn, 610 F.2d 253, 268 (5th Cir. 1980); Bryant v. Wainwright, 686 F.2d 1373 (11th Cir. 1982) (noting variance of 7.4 percentage points between general population of blacks in country and black grand jurors held not to demonstrate discrimination in selection of grand jurors). But see Gutierrez v. State, 954 S.W.2d 86, 88 (Tex.App. – San Antonio 1997), rev’d on other grounds 979 S.W.2d 659 (Tex. Crim. App. 1998) (stating that 10.1 percent is not a legally sufficient amount and does not justify a more stringent standard). U.S. v. Duran de Amesquita, 582 F.Supp. 1326 (S.D. Fla. 1984) (holding that Hispanics are not a distinct cognizable group, at least for purposes of meeting the Sixth Amendment requisite of a jury comprised of a “fair cross-section” of the community).


Once a “presumption of discrimination” is raised by such a “statistical showing” the burden shifts to the prosecution to rebut the same.

“Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facia case of discriminatory purpose, and the burden shifts to the state to rebut that case.”

Castaneda v. Partida, 430 U.S. 482, 494 (1977);

Davis v. State, 374 S.W.2d 242, 242-44 (Tex.Cr.App. 1964);

Flores v. State, 783 S.W.2d 793, (Tex.App. – El Paso 1990).

The government must overcome the presumption that the grand jury was composed unconstitutionally, and that the procedure “manifestly and primarily advances a significant state interest”. Prosecutors may do so by showing they employed proper procedures that produced the underrepresentation and that the procedures manifestly and primarily advance a significant state interest

Protestations that racial bias played no part in the selection are insufficient to meet this burden. Nor it is sufficient to claim that a particular group is similarly not available for service.

Furthermore, when the excluded group is one to which stricter scrutiny applies under equal protection analysis, then the government’s burden of proof and the quality of its evidence must be greater to show underrepresentation was not intentional or systematic.

Castaneda v. Partida, 430 U.S. 482, 498 n.136;

Alexander v. Louisiana, 405 U.S. 625 (1972);

Hernandez v. Texas, 347 U.S. 475 (1945);


The exclusion of invidious groups readily gives rise to a motion to dismiss. The exclusion of other groups may also qualify.

African Americans:

The Fifth Circuit has held that a grand jury selection process violated a black defendant’s right to equal protection under the Fourteenth Amendment where no blacks had served as grand jury foreman over a significant period of time. Johnson v. Puckett, 929 F.2d 1067 (5th Cir. 1991).


Systematic exclusion or exemption of females from petit jury service denies a defendant’s Fifth Amendment right to “due process” and Sixth Amendment right to a jury comprised of a representative cross-section of his community.

Taylor v. Louisiana, 419 U.S. 522 (1975) (showing Louisiana statute exempted women unless they volunteered);

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

Young adults:

LaRoche v. Perin, 718 F.2d 500 (1st Cir. 1983) (noting unexplained “shortfall of youth” on jury venire states a valid Sixth Amendment Claim under Duren v. Missouri), but see Barber v. Ponte, 772 F.2d 982 (5th Cir. 1985) (“young adults” not a sufficiently distinctive group to require proportionate representation in the venire, overruling LaRoche);

Willis v. Zant, 720 F.2d 1212 (5th Cir. 1983), cert. denied, 104 S.Ct. 3548 (1984) (remanding for hearing to determine whether underrepresentation of young adults who “were reared and educated in a desegregated society” and who therefore would “more easily understand and relate to …a twenty-three year old black” defendant stated a claim under Duren)


“Although, the distinctiveness of a group for Sixth Amendment purposes is a question of fact”, some groups would clearly not qualify as a matter of law.

Willis v. Zant, 720 F.2d 1212 (5th Cir. 1983) (stating “[f]or example, no evidentiary hearing would be needed to determine that redheads or vegetarians are not distinctive classes within the Sixth Amendment fair cross-section analysis.”).

Carle v. United States, 705 A.2d 682, 683 ( D.C. Cir. Jan. 15, 1998) (holding ex- felons not a distinctive group protected by fair-cross-section requirement).

Selection of grand jury foreperson may also constitute such a deprivation:

Guice v. Forenberry, 661 F.2d 496 (5th Cir. 1981) (en banc);

U.S. v. Perez-Hernandez, 672 F.2d 1380, 1386 (11th Cir. 1982).

See also  Rose v. Mitchell, 443 U.S. 545, 551 n.4 (1979) (noting the court assumed, without deciding that “discrimination with regard to the selection of only the foreman requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the selection of the entire jury venire”).

But see   U.S. v. Hobby, 702 F.2d 466, 740-41 (4th Cir. 1983), affirmed, Hobby v. U.S., 104 S.Ct. 3093, 3096, 3097 (1984). The Court held that as to federal grand jury forepersons:

“Given the ministerial nature of the position, discrimination in the selection of one person from among the members of a properly constituted grand jury can have little, if indeed any, appreciable effect upon the defendant’s due process right to fundamental fairness. Simply stated, the role of the foreman of a federal grand jury is not so significant to the administration of justice that discrimination in the appointment of that office impugns the fundamental fairness of the process itself so as to undermine the integrity of the indictment.” U.S. v. Hobby, 468 U.S. 339, 346 (1984)

Cf  U.S. v. Cronn, 559 F. Supp. 125 (N.D. Tex. 1982), affirmed on other grounds, 717 F.2d 164, 166 (5th Cir. 1983) (stating, “the position of a federal grand jury foreman is not constitutionally significant” because his powers are merely ministerial).


A defendant is not required to be a member of the class to complain of systematic exclusion.

Campbell v. Louisiana, 523 U.S. 392 (1998).

“[A] white defendant has standing to raise equal protection challenge to discrimination against black persons in the selection of grand jurors.” Campbell v. Louisiana, 523 U.S. 392, 401 (1998).

Peters v. Kiff, 407 U.S. 493 (1972) (emphasizing white Anglo has standing to complain of systematic exclusion of blacks). The Court recognized:

“the exclusion of a discernable class from jury service injures not only those defendants who belong to the excluded class, but other defendants as well, in that it destroys the possibility that the jury will reflect a representative cross section of the community”. Peters v. Kiff, 407 U.S. 493, 500 (1972).

“Accordingly, we hold that whatever his race, a criminal defendant has standing to challenge the system used to select his grand or petit jury, on the ground that it arbitrarily excludes from service the members of any race and thereby denies him due process of law”. (emphasis supplied). Peters v. Kiff, 407 U.S. 493, 504 (1972).

This principle also applies to the petit juries for purposes of a Batson challenge. Citizens not a member of the offended class are entitled to make a Batson challenge to a prosecutor’s use of peremptory petit jury strikes against jurors not of the defendant’s race or class under Batson v. Kentucky, 476 U.S. 79 (1986).

“The Court permitted white defendant to challenge the systematic exclusion of black persons from grand and petit juries. While Peters did not produce a single majority opinion, six of the Justices agreed that racial discrimination in the jury selection process cannot be tolerated and that the race of the defendant has no relevance to his or her standing to raise the claim.” Powers v. Ohio, 499 U.S. 400, 408-409 (1991)(emphasis supplied).

Taylor v. Louisiana, 419 U.S. 522 (1975) (male has standing to complain of systematic exclusion of women from petit jury);

Willis v. Zant, 720 F.2d 1212, 1217 (5th Cir. 1983) (Older African American male had standing to complain about underrepresented young white jurors).

Defendant’s have an unqualified right to inspect the lists from which jurors are drawn in order to raise such Constitutional challenges.

Test v. U.S., 95 S.Ct. 749 (1975).

See also        28 U.S.C. § 1861,

28 U.S.C. § 1867(f).

An evidentiary hearing must be provided:

The Supreme Court held that it was improper to refuse the defendant a chance to offer evidence to support his claim that Negroes had been arbitrarily and systematically excluded from sitting on the Grand Jury that indicted him. Coleman v. Alabama, 377

U.S. 129 (1964).


A federal prisoner who failed to make a timely challenge to the composition of the Grand Jury that indicted him may not after his conviction assert that challenge by motion under 28 U.S.C. § 2255. Pursuant to 28 U.S.C. § 1867(e) such challenge must be made “seven days after the defendant discovered or could have discovered. . . the grounds therefore”.

Davis v. U.S., 411 U.S. 233 (1973).

See also    Tollett v. Henderson, 411 U.S. 258 (1973);

Francis v. Henderson, 425 U.S. 536 (1976).

In Texas, an individual must challenge the array when he has the “opportunity”. Tex. Code Crim. Pro. arts. 19.27 and 27.03; Armentront v. State, 135 S.W.2d 479 (Tex.Cr.App. 1939); Muniz v. State, 573 S.W.2d 792, 796 (Tex.Cr.App. 1978), cert.

denied, 442 U.S. 924 (1979); Seay v. State, 286 S.2d 532 (1973) (holding failure to challenge prior to empanelment waives defect). The accused has been held to have such “opportunity” when he or she is incarcerated or on bail at the time the grand jury is impaneled. Tex. Code Crim. Pro. art. 19.27; Hicks v. State, 493 S.W.2d 833, 834-35 (Tex.Cr.App. 1973). This may occur as early as the time when the grand jury is impaneled. However, relief is available to state prisoners under 28 U.S.C. § 2254 even if the challenge is raised years after a conviction.

Vasquez v. Hillery, 474 U.S. 254, (1986); reaffirming, Rose v. Mitchell, 443 U.S. 1545 (1979).

“Petitioner argues here that requiring a State to retry a defendant, sometimes years later, imposes on it an unduly harsh penalty for a constitutional defect bearing no relation to the fundamental fairness of the trial. Yet intentional discrimination in the selection of grand jurors is a grave constitutional trespass, possible only under color of state authority, and wholly within the power of the State to prevent. Thus, the remedy we have embraced for over a century – the only effective remedy for this violation – is not disproportionate to the evil that it seeks to deter. If grand jury discrimination becomes a thing of the past, no conviction will ever again be lost on account of it.” Vasquez v. Hillery, 474 U.S. 254, 263 (1986)(footnote omitted).

(210) 226-1463
  1. Attorneys
  2. Results
  3. Contact