concurring.
In addition to the foregoing, I write separately to offer, as obiter dicta, a few observations with which my fellow justices do not necessarily agree at this time.
Too often, attorneys, trial courts, and, at times, this court, have failed to adequately distinguish the different kinds of jury challenges available to defendants.
For example, in this case, the defendant did not challenge his grand jury on equal protection grounds. Rather, he relied on fair-cross-section challenges derived from the Sixth Amendment to the U. S. Constitution (Code Ann. § 1-806) and from OCGA § 15-12-40 (a) (1) (Code Ann. § 59-106). Nonetheless, both parties argued vigorously the question whether purposeful discrimination had been shown, even though purposeful discrimination is not an element of any fair-cross-section challenge. Duren v. Missouri, 439 U. S. 357, 368 (99 SC 664, 58 LE2d 579) (1979).
Moreover, both parties overlooked the fact that by its clear terms, the Sixth Amendment (Code Ann. § 1-806) is inapplicable to grand juries. Thus, the state argues in this case that no systematic underrepresentation had been shown. However, while the underrepresentation must be shown to be systematic to establish a Sixth Amendment (Code Ann. § 1-806) violation (Duren v. Missouri, supra, 439 U. S. at 364), systematic underrepresentation is not an element of a challenge pursuant to OCGA § 15-12-40 (Code Ann. § 59-106). Instead, the defendant need only show that the jury list does *163not fairly represent some distinctive, identifiable group in the community. Devier v. State, 250 Ga. 652 (300 SE2d 490) (1983).
In most cases proceeding under OCGA § 15-12-40 (Code Ann. § 59-106), once significant underrepresentation is shown, the inquiry will stop. The jury list will have to be revised. It is possible, however, that the underrepresentation of a distinct group in the community will be justified by an adequate state interest.
For example, a non-mechanically selected jury list is required to be revised not more than once every two years. OCGA § 15-12-40 (a) (1) (Code Ann. § 59-106). As the time for revision approaches, demographic changes in the county might result in some group being underrepresented on the jury list. Necessarily, 18 to 20 year olds will be underrepresented on the list, since many would not have been eligible for jury service at the time the list was last revised. Should a defendant be able to establish that 18 to 20 year olds constitute a distinct and identifiable group within the community,1 surely the state would be allowed an opportunity to demonstrate that the underrepresentation was justified by an adequate state interest.
In other cases, underrepresentation of a group might result from legislatively established, relevant qualifications for jury duty or from reasonable exemptions therefrom. See OCGA § 15-12-1 (Code Ann. § 59-112). Again, the state should be allowed the opportunity to demonstrate that an adequate state interest justified the underrepresentation of the group on the jury list.
In this case, the state offered no justification for the underrepresentation of women on the grand jury list, nor can I think of any. Had the issues been better focused below, and had the parties recognized that concepts of purposeful discrimination and systematic exclusion were irrelevant to OCGA § 15-12-40 (Code Ann. § 59-106), the invalidity of the grand jury might have been dealt with prior to trial and a retrial avoided. Instead, this case must be reversed.
See Willis v. Zant, 720 F2d 1212 (11th Cir. 1983), which holds that whether or not a class of persons is sufficiently distinct and cognizable, for fair-cross-section analysis, is a question of fact, depending upon the time and location of the trial.