dissenting.
While I agree with the conclusion reached by my colleagues in their well-crafted opinion that the trial court was correct in finding that Hispanics represent a cognizable class for Sixth Amendment “fair cross-section of the community” challenges under the United States Constitution, I must part company with the majority in their newly-minted “eligibility disparity” approach to determining what constitutes a fair cross-section of the community, and their unduly restrictive approach to what constitutes systematic exclusion.
1. After a careful review of the record I agree with the trial court that appellee met his burden of showing that the jury selection process is unfair and unreasonable in relation to the number of Hispanics in the community. I find instructive the analysis given to this issue in United States v. Esquivel, 88 F3d 722 (9th Cir. 1996), where the U. S. Court of Appeals for the Ninth Circuit conceded that the defendant established that the target group was a distinct class and that the absolute disparity in the numbers gave rise to an inference of a Sixth Amendment violation. However, the Ninth Circuit, in the *727interest of judicial efficiency, took judicial notice of census figures which were not presented to the trial court. These figures showed the percentage of the alleged underrepresented target group was significantly less than the absolute disparity presented by the appellee. Such evidence rebutted the inference of a Sixth Amendment violation established by the absolute disparity and dispensed with any need to decide whether defendant established a prima facie Sixth Amendment violation under the second prong of Duren v. Missouri, 439 U. S. 357 (99 SC 664, 58 LE2d 579) (1979).
In the case at bar, the trial court found defendant presented admissible evidence through the 2000 U. S. Census figures which showed an absolute disparity as outlined in the majority opinion, thereby meeting the second prong requirement as established in Duren v. Missouri, 439 U. S. at 364. Serving in its gatekeeper role under Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579, 589 (113 SC 2786, 125 LE2d 469) (1993), the trial court found the state’s
non-statistical and anecdotal evidence insufficient to rebut the inference of a Sixth Amendment violation established by appellee. It is appropriate to adopt the trial court’s determination as the decision of this court regarding the establishment of the second prong under Duren, supra.
Adopting the approach of the majority opinion, requiring a citizenship eligibility requirement, could have dire consequences for our legal system. This short-sighted approach is guided by United States v. Artero, 121 F3d 1256, 1262 (9th Cir. 1997), and is supported to some extent by United States v. Rodriguez, lié F2d 1509, 1511, n. 6 (11th Cir. 1985). Under this approach, a prima facie case cannot be made under the three prong approach outlined in Duren, supra, unless the defendant shows under the second prong that eligible jurors are in fact citizens. Heretofore, even though we have recently considered the jury selection process in Morrow v. State, 272 Ga. 691 (1) (532 SE2d 78) (2000); Mobley v. State, 265 Ga. 292 (6) (455 SE2d 61) (1995); and Mobley v. State, 262 Ga. 808 (2) (426 SE2d 150) (1993), we have not imposed a citizenship requirement. Yet, the majority has chosen to do so today.
Even if we apply the Artero test as the majority opinion would have us do, we would be ignoring the factual environment in which Artero was decided. In adopting the eligibility requirement as to citizenship in Artero, the appellate court noted that the Southern District of California was a border area of the state and a port city. The decision went on to say that common sense dictates that many of the residents are recent arrivals to this country. In the present case, Hall County is neither a border county nor a port of entry, which makes it easily distinguishable from the situation present in Artero, supra.
The State argues that Hall County is the center of the poultry *728industry and that many non-citizens perform work in this industry. If we accept this argument as justification for accepting this newly-minted citizenship eligibility requirement, it will not be long before we apply this same logic to the counties where the Vidalia onions are grown and to counties where the carpet industry thrives. Such assumptions run contrary to American notions of fairness, inclusiveness, and justice.
2. Turning now to a consideration of whether the trial court erred in determining that Smith established the third prong of systematic exclusion, I find myself in agreement with the trial court on this issue. The trial court was correct in ruling that the underrepresentation of Hispanics is due to systematic exclusion and that Smith met his burden of demonstrating that such exclusion is inherent in the jury-selection procedure used by the Hall Superior Court.
The trial court found as follows:
The most compelling evidence of systematic exclusion presented on the present case is the fact that no information on the ethnicity of potential grand [sic] jurors was requested or recorded. Logically, if Hispanics are not identified or tracked, they are susceptible to systematic exclusion and the system is susceptible to abuse.
As to the systematic exclusion issue, Duren, supra at 366, spoke directly on point when it said a showing of a consistently large discrepancy for a period of time “manifestly indicates that the cause of the underrepresentation is systematic — that is, inherent in the particular jury-selection process utilized.”
The determination by the trial court that Hispanics had not been separately tracked on the traverse jury list and that the Hall County jury commissioners had made insufficient efforts to recruit Hispanics for the jury list is sufficient to meet the test established by United States v. Garcia, 991 F2d 489, 491 (8th Cir. 1993), to show that the underrepresentation is due to systematic exclusion in that the exclusion is inherent in the particular jury selection process.
3. No consideration of this case would be complete without addressing that portion of the opinion of United States v. Artero, supra, 121 F3d at 1262, which included the following gratuitous language:
The central inquiry in a criminal case ought to be whether the defendant committed the crime charged. By diverting the inquiry to another subject, “the focus of the trial, and the attention of the participants therein, are diverted from the ultimate question of guilt or innocence that should be the *729central concern in a criminal proceeding.” [Cit.] There is a cost to looking for defects in the criminal justice system, during proceedings initiated to determine whether a particular individual committed a particular crime. The cost of looking is not only time and money for the search, but corrosion of public respect for a judicial system that loses its focus on . . . “the ultimate question.” [Cit.]
In determining whether a searching inquiry should be made of the jury selection process, we need only refer to language contained in United States v. Grisham, 63 F3d 1074, 1078 (11th Cir. 1995), quoting Taylor v. Louisiana, 419 U. S. 522, 527 (95 SC 692, 42 LE2d 690) (1975):
The representativeness requirement serves the goal of impartiality because it prevents the government from drawing up “jury lists in such [a] manner as to produce a pool of prospective jurors disproportionately ill disposed towards one or all classes of defendants.” [Cit.]
The Grisham court went on to say that a “representative jury pool serves this goal because a diversity of viewpoints among the jury pool hedges against the possibility of a jury acting on prejudices shared by a homogenous group.” Id. at 1080.
Underrepresentation of any cognizable group has the potential for eroding the public’s confidence, faith, and trust in our legal system. The effective functioning of our jury system is dependent to a large extent on the participation of all cognizable segments of our society. The consideration of matters brought before juries entails their review of evidence and their application of the law as given to them by the court. The discovery of the truth, which is the goal of all legal investigations, is not an exact science that can be determined with mathematical certainty. In considering evidence, jurors must bring to the legal arena their experiences in life. In weighing the evidence, they must exercise some discretion and judgment in determining what testimony is credible and how much weight must be given to various types of evidence — documentary, testimonial, and physical. When cognizable segments of the community are excluded from jury participation, the decision-making process of the jury runs the risk of being seriously impaired. The result might very well lead to a lack of respect for the decision of our courts and a lack of acceptance of court imposed judgments.
In a heterogenous society such as ours, jurors charged with reaching decisions on matters that are not readily subject to scientific proof but are influenced by public policy, shared values, and *730facts that are oftentimes in conflict, must often take into consideration cultural differences, traditions, customs, and mores before a final determination can be made. Placing undue restrictions on the jury pool selection process by forcing jury commissioners to use only methods that pre-screen for citizenship could result in the exclusion of many citizens who are potential candidates for jury service. Such a state of affairs might not bode well for our system of justice.
Decided October 28, 2002 Reconsideration denied November 22, 2002. Summer & Summer, Daniel A. Summer, Elizabeth B. Reisman, for appellant. Lydia J. Sartain, District Attorney, Lisa A. Jones, Jennifer C. Bagwell, Assistant District Attorneys, for appellee.The majority approach will cause jury commissioners to short circuit their quest for a more representative jury pool and stifle attempts to make our jury pools more inclusive. This is the very problem the U. S. Supreme Court sought to remedy in Duren, supra. We need to learn from our mistakes of the past and not feel duty bound to repeat them as the majority would have us do.
For the reasons outlined above I dissent.