After a jury trial in the District Court for the Fifteenth Judicial District of Lafayette Parish, Louisiana, petitioner, a Negro, was convicted of rape and sentenced to life imprisonment. His conviction was affirmed on appeal by the Louisiana Supreme Court,1 and this Court granted certiorari.2 Prior to trial, petitioner had moved to quash the indictment because (1) Negro citizens were included on the grand jury list and venire in only token numbers, and (2) female citizens were systematically excluded from the grand jury list, venire, and impaneled grand jury.3 Petitioner therefore argued that the indictment against him was invalid because it was returned by a grand jury impaneled from a venire made up contrary to the requirements of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Petitioner's motions were denied.

According to 1960 U.S. census figures admitted into evidence below, Lafayette Parish contained 44,986 persons over 21 years of age and therefore presumptively eligible for grand jury service;4 of this total, 9,473 persons (21.06%) were Negro.5 At the hearing on petitioner's motions to quash the indictment, the evidence revealed that the Lafayette Parish jury commission consisted of five members, all of whom were white, who had been appointed by the court. The commission compiled a list of names from various sources (telephone directory, city directory, voter registration rolls, lists prepared by the school board, and by the jury commissioners themselves) and sent questionnaires to the persons on this list to determine those qualified for grand jury service. The questionnaire included a space to indicate the race of the recipient. Through this process, 7,374 questionnaires were returned, 1,015 of which (13.76%) were from Negroes,6 and the jury commissioners attached to each questionnaire an information card designating, among other things, the race of the person, and a white slip indicating simply the name and address of the person. The commissioners then culled out about 5,000 questionnaires, ostensibly on the ground that these persons were not qualified for grand jury service or were exempted under state law. The remaining 2,000 sets of papers were placed on a table, and the papers of 400 persons were selected, purportedly at random, and placed in a box from which the grand jury panels of 20 for Lafayette Parish were drawn. Twenty-seven of the persons thus selected were Negro (6.75%).7 On petitioner's grand jury venire, one of the 20 persons drawn was Negro (5%), but none of the 12 persons on the grand jury that indicted him, drawn from this 20, was Negro.

* For over 90 years, it has been established that a criminal conviction of a Negro cannot stand under the Equal Protection Clause of the Fourteenth Amendment if it is based on an indictment of a grand jury from which Negroes were excluded by reason of their race. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881). Although a defendant has no right to demand that members of his race be included on the grand jury that indicts him, Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880), he is entitled to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice.8 Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880); Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896). Cf. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). It is only the application of these settled principles that is at issue here.

This is not a case where it is claimed that there have been no Negroes called for service within the last 30 years, Patton v. Mississippi, 332 U.S. 463, 464, 68 S.Ct. 184, 185, 92 L.Ed. 76 (1947); only one Negro chosen within the last 40 years, Pierre v. Louisiana, 306 U.S. 354, at 359, 59 S.Ct. 536, at 539 (1939); or no Negroes selected 'within the memory of witnesses who had lived (in the area) all their lives,' Norris v. Alabama, 294 U.S. 587, 591, 55 S.Ct. 579, 581, 79 L.Ed. 1074 (1935). Rather, petitioner argues that, in his case, there has been a consistent process of progressive and disproportionate reduction of the number of Negroes eligible to serve on the grand jury at each stage of the selection process until ultimately an all-white grand jury was selected to indict him.

In Lafayette Parish, 21% of the population was Negro and 21 or over, therefore presumptively eligible for grand jury service. Use of questionnaires by the jury commissioners created a pool of possible grand jurors which was 14% Negro, a reduction by one-third of possible black grand jurors. The commissioners then twice culled this group to create a list of 400 prospective jurors, 7% of whom were Negro—a further reduction by one-half. The percentage dropped to 5% on petitioner's grand jury venire and to zero on the grand jury that actually indicted him. Against this background, petitioner argues that the substantial disparity between the proportion of blacks chosen for jury duty and the proportion of blacks in the eligible population raises a strong inference that racial discrimination and not chance has produced this result because elementary principles of probability make it extremely unlikely that a random selection process would, at each stage, have so consistently reduced the number of Negroes.9

This Court has never announced mathematical standards for the demonstration of 'systematic' exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral. The racial designation on both the questionnaire and the information card provided a clear and easy opportunity for racial discrimination. At two crucial steps in the selection process, when the number of returned questionnaires was reduced to 2,000 and when the final selection of the 400 names was made, these racial identifications were visible on the forms used by the jury commissioners, although there is no evidence that the commissioners consciously selected by race. The situation here is thus similar to Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953), where the Court sustained a challenge to an array of petit jurors in which the names of prospective jurors had been selected from segregated tax lists. Juror cards were prepared from these lists, yellow cards being used for Negro citizens and white cards for whites. Cards were drawn by a judge, and there was no evidence of specific discrimination. The Court held that such evidence was unnecessary, however, given the fact that no Negroes had appeared on the final jury: 'Obviously that practice makes it easier for those to discriminate who are of a mind to discriminate.' 345 U.S., at 562, 73 S.Ct., at 892. Again, in Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), the Court reversed the conviction of a defendant who had been tried before an all-white petit jury. Jurors had been selected from a one-volume tax digest divided into separate sections of Negroes and whites; black taxpayers also had a '(c)' after their names as required by Georgia law at the time. The jury commissioners testified that they were not aware of the '(c)' appearing after the names of the Negro taxpayers; that they had never included or excluded anyone because of race; that they had placed on the jury list only those persons whom they knew personally; and that the jury list they compiled had had no designation of race on it. The county from which jury selection was made was 42% Negro, and 27% of the county's taxpayers were Negro. Of the 33 persons drawn for the grand jury panel, three (9%) were Negro, while on the 19-member grand jury only one was Negro; on the 90-man venire from which the petit jury was selected, there were seven Negros (8%), but no Negroes appeared on the actual jury that tried petitioner. The Court held that this combination of factors constituted a prima facie case of discrimination, and a similar conclusion is mandated in the present case.

Once a prima facie case of invidious discrimination is established, the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result. Turner v. Fouche, 396 U.S. 346, 361, 90 S.Ct. 532, 540, 24 L.Ed.2d 567 (1970); Eubanks v. Louisiana, 356 U.S. 584, 587, 78 S.Ct. 970, 973, 2 L.Ed.2d 991 (1958). The State has not carried this burden in this case; it has not adequately explained the elimination of Negroes during the process of selecting the grand jury that indicted petitioner. As in Whitus v. Georgia, supra, the clerk of the court, who was also a member of the jury commission, testified that no consideration was given to race during the selection procedure. App. 34. The Court has squarely held, however, that affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion. Turner v. Fouche, supra, 396 U.S., at 361, 90 S.Ct., at 540; Jones v. Georgia, 389 U.S. 24, 25, 88 S.Ct. 4, 5, 19 L.Ed.2d 25 (1967); Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634 (1967). 'The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner.' Hernandez v. Texas, 347 U.S., at 482, 74 S.Ct., at 672. See also Norris v. Alabama, 294 U.S., at 598, 55 S.Ct., at 583. The clerk's testimony that the mailing list for questionnaires was compiled from nonracial sources is not, in itself, adequate to meet the State's burden of proof, for the opportunity to discriminate was presented at later stages in the process. The commissioners, in any event, had a duty 'not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds.' Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559 (1942). See also Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940). Cf. Carter v. Jury Commission of Greene County, 396 U.S. 320, 330, 90 S.Ct. 518, 523, 24 L.Ed.2d 549 (1970). We conclude, therefore, that 'the opportunity for discrimination was present and (that it cannot be said) on this record that it was not resorted to by the commissioners.' Whitus v. Georgia, supra, 385 U.S., at 552, 87 S.Ct., at 647.

Petitioner also challenges the Louisiana statutory exemption of women who do not volunteer for grand jury service. Article 402, La.Code Crim.Proc. This claim is novel in this Court and, when urged by a male, finds no support in our past cases. The strong constitutional and statutory policy against racial discrimination has permitted Negro defendants in criminal cases to challenge the systematic exclusion of Negroes from the grand juries that indicted them. Also, those groups arbitrarily excluded from grand or petit jury service are themselves afforded an appropriate remedy. Cf. Carter v. Jury Commission of Greene County, supra. But there is nothing in past adjudications suggesting that petitioner himself has been denied equal protection by the alleged exclusion of women from grand jury service. Although the Due Process Clause guarantees petitioner a fair trial, it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury. In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Court held that because trial by jury in criminal cases under the Sixth Amendment is 'fundamental to the American scheme of justice,' id., at 149, 88 S.Ct., at 1447, such a rigth was guaranteed to defendants in state courts by the Fourteenth Amendment, but the Court has never held that federal concepts of a 'grand jury,' binding on the federal courts under the Fifth Amendment, are obligatory for the States. Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 122, 28 L.Ed. 232 (1884).

Against this background and because petitioner's conviction has been set aside on other grounds, we follow our usual custom of avoiding decision of constitutional issues unnecessary to the decision of the case before us. Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 245, 49 L.Ed. 482 (1905). See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The State may or may not recharge petitioner, a properly constituted grand jury may or may not return another indictment, and petitioner may or may not be convicted again. See Ballard v. United States, 329 U.S. 187, 196, 67 S.Ct. 261, 265, 91 L.Ed. 181 (1946).

Reversed.

Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.

Mr. Justice DOUGLAS, concurring.

While I join Part I of the Court's opinion, I am convinced we should also reach the constitutionality of Louisiana's exclusion of women from jury service. The issue is squarely presented, it has been thoroughly briefed and argued, and it is of recurring importance. The Court purports to follow 'our usual custom' of avoiding unnecessary constitutional issues. But that cannot be the sole rationale, for both questions are of constitutional dimension. We could just as well say that deciding the constitutionality of excluding women from juries renders it unnecessary to reach the question of racial exclusion.

It can be argued that the racial exclusion admits of the 'easier' analysis. But this Court does not sit to decide only 'easy' questions. And even when faced with 'hard' constitutional questions, we have often decided cases on alternate grounds where a decision on only one would have been dispositive. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274.

Petitioner complains of the exclusion of blacks and women from the grand jury which indicted him. Conceivably, he could have also complained of the exclusion of several other minority groups. Would he then be relegated to suffer repetitive re-indictment and re-conviction while this court considered the exclusion of each group in a separate lawsuit? I believe the time has come to reject the dictum in Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664, that a State 'may confine' jury service 'to males.' I would here reach the question we reserved in Hoyt v. Florida, 368 U.S. 57, 60, 82 S.Ct. 159, 161, 7 L.Ed.2d 118, and hold that Art. 402, La.Code Crim.Proc.,1 as applied to exclude women as a class from Lafayette Parish jury rolls, violated petitioner Alexander's constitutional right to an impartial jury drawn from a group representative of a cross-section of the community.2

It is irrelevant to our analysis that Alexander attacks the composition of the grand jury that indicted him, not the petit jury which convicted him, for it is clear that a State which has a grand jury procedure must administer that system consonantly with the Federal Constitution. The Court asserts, however, that 'federal concepts' of a grand jury do not obligate the States, and cites Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 122, 28 L.Ed.2d 232. Ante, at 633. But Hurtado supports no such proposition. That case merely held that the Fifth Amendment grand jury requirement was not binding on the States. It said nothing as to the constitutional requirements which obtain once a State chooses to provide a grand jury, and we are directed to no other case which does speak to the subject. But this Court has said time and again, regardless of a State's freedom to reject the federal grand jury, and to reject even the petit jury for offenses punishable by less than six months' imprisonment, Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437, 'Once the State chooses to provide grand and petit juries, whether or not constitutionally required to do so, it must hew to federal constitutional criteria . . .' Carter v. Jury Commission of Greene County, 396 U.S. 320, 330, 90 S.Ct. 518, 523, 24 L.Ed.2d 549.3

It is furthermore clear that just such a 'federal constitutional criteri(on)' is that the grand jury, just as the petit jury must be drawn from a representative cross-section of the community. The Court was speaking of both grand and petit juries in Carter v. Jury Commission, supra, when, quoting Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84, it defined the jury as 'a body truly representative of the community.' 396 U.S., at 330, 90 S.Ct., at 524. The Court was speaking of grand and petit juries when it said in Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed. 469: 'Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.' (Emphasis supplied.) As Mr. Justice Black said, speaking for the Court in Pierre v. Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 83 L.Ed. 757: 'Indictment by Grand Jury and trial by jury cease to harmonize with our traditional concepts of justice at the very moment particular groups, classes or races . . . are excluded as such from jury service.' (Footnote omitted.)

The requirement that a jury reflect a cross-section of the community occurs throughout our jurisprudence: 'The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84; Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680.' Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181. Accord, Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905, 26 L.Ed.2d 446; Witherspoon v. Illinois, 391 U.S. 510, 520, 88 S.Ct. 1770, 1776, 20 L.Ed.2d 776; Ballard v. United States, 329 U.S. 187, 192—193, 67 S.Ct. 261, 263—264, 91 L.Ed. 181; Labat v. Bennett, 5 Cir., 365 F.2d 698, 722—724.4

This is precisely the constitutional infirmity of the Louisiana statute. For a jury list from which women have been systematically excluded is not representative of the community.

'It is said, however, that an all male panel drawn from the various groups within a community will be as truly representative as if women were included. The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men personality, background, economic status—and not sex.

Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up excusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.' Ballard v. United States, supra, 329 U.S., at 193—194, 67 S.Ct., at 264. (Emphasis supplied; footnotes omitted).

The record before us, moreover, indisputably reveals that such a systematic exclusion operated with respect to the Lafayette Parish jury lists. There were no women on the grand jury that indicted petitioner, and there were no women on the venire from which the jury was chosen. While the venire was selected from returns to questionnaires sent to parish residents, not a single one of the some 11,000 questionnaires was even sent to a woman. This was done deliberately.5

The State relies on the fact that the automatic exemption it grants to women is the same as the one upheld in Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118. In Hoyt, however, there were women on the jury rolls, and the jury commissioners had made good-faith efforts to include women on the jury lists despite the fact that they had an automatic exemption unless they volunteered for service. Id., 368 U.S., at 69, 82 S.Ct., at 166 (Warren, C.J., concurring opinion). Here, on the other hand, only the feeblest efforts were made to interest women in service,6 and there was testimony that only a single woman had filled out a jury service questionnaire.7 This, out of a parish population of 45,000 adults, 52% of whom were female.

The absolute exemption provided by Louisiana, and no other State,8 betrays a view of a woman's role which cannot withstand scrutiny under modern standards. We once upheld the constitutionality of a state law denying to women the right to practice law, solely on grounds of sex. Bradwell v. State, 16 Wall. 130, 21 L.Ed. 442. The rationale underlying Art. 402 of the Louisiana Code is the same as that which was articulated by Justice Bradley in Bradwell:

'Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .

'. . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.' Id., at 141—142.

Classifications based on sex are no longer insulated from judicial scrutiny by a legislative judgment that 'woman's place is in the home,' or that woman is by her 'nature' ill-suited for a particular task. See, e.g., Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225. But such a judgment is precisely that which underpins the absolute exemption from jury service at issue.9 Insofar as Hoyt, supra, embodies this discredited stereotype, it should be firmly disapproved.10 See Johnston & Knapp, Sex Discrimination by Law: A Study in Judicial Perspective, 46 N.Y.U.L.Rev. 675, 708—721 (1971).

Louisiana says, however, that women are not totally excluded from service; they may volunteer. The State asserts it is impractical to require women affirmatively to claim the statutory exemption because of the large numbers who would do so. This argument misses the point. Neither man nor woman can be expected to volunteer for jury service. Hoyt, supra, 368 U.S., at 64—65, 82 S.Ct., at 164. See L. Kanowitz, Women and the Law 30 (1969). Thus, the automatic exemption, coupled with the failure even to apprise parish women of their right to volunteer, results in as total an exclusion as would obtain if women were not permitted to serve at all.

Some violations of due process of law may be excused in the context of a criminal trial, if the error cannot be shown to have had an effect on the outcome. See, e.g., Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; Napue v. Illinois, 360 U.S. 264, 272, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217. But the right to a representative jury is one which would be trivialized were a similar requirement imposed:

'We can never measure accurately the prejudice that results from the exclusion of certain types of qualified people from a jury panel. Such prejudice is so subtle, so intangible, that it escapes the ordinary methods of proof. It may be absent in one case and present in another; it may gradually and silently erode the jury system before it becomes evident. But it is no less real or meaningful for our purposes. If the constitutional right to a jury impartially drawn from a cross-section of the community has been violated, we should vindicate that right even though the effect of the violation has not yet put in a tangible appearance. Otherwise that right may be irretrievably lost in a welter of evidentiary rules.' Fay v. New York, 332 U.S. 261, 300, 67 S.Ct. 1613, 1634, 91 L.Ed. 2043 (Murphy, J., dissenting).

A statutory procedure which has the effect of excluding all women does not produce a representative jury, and is therefore repugnant to our constitutional scheme. Cf. White v. Crook, 251 F.Supp. 401, 408—409 (MD Ala.1966). For these reasons, I would hold Art. 402, La.Code Crim.Proc., to be unconstitutional.