Largely because of a concern about having enough jurors who could understand the issues being litigated, the Judicial Council, in 1936, recommended service by women, subject to the same qualifications and exceptions applicable to men. The next year, the Legislature amended the relevant statutes to withdraw male gender as a qualification for jury service. In 1938, the Civil Rights Law was amended to guarantee the right of women to be jurors. The right of a woman to be a juror has never been explicitly included in the language of the State Constitution, but it is part of the constitutional common law and, at this point in our history, it cannot be disputed that the state constitutional interpretation protects that right.

Although after 1937 women could not be excluded as jurors, by law they could claim an automatic exemption. The exemption in practice appeared to have resulted in a scarcity of women members on jury panels.^[9] Largely because of the belief that federal law required it, in 1975, the Legislature substituted for the women s exemption a non-gender-based exemption for those actually caring for children under 16 years old between 8 a.m. and 6 p.m. The words of United States Supreme Court, considered by a Seneca County judge, explain the impact of the elimination of gender discrimination: "The two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables."^[10]

Age: In 1699, a juror was required to be 21 years old. The minimum age requirement remained at 21 for 275 years, after which it was reduced to 18. Significantly, this occurred just three years after the voting age was reduced by the 26th Amendment to the United States Constitution.

In 1741, the Colonial Assembly included a requirement that the eligible juror be under 70. By 1829, the maximum age of qualification had been reduced to 60 years. Thereafter, the age was again made 70. The age limits then remained unchanged until 1965. In that year, in some counties persons were made eligible to sit as jurors until they were 72 years old, but a party could strike from the panel a juror who was between 70 and 72 years without using a peremptory challenge. By 1973, in all counties the age for service was increased to 75, but the parties were still allowed their free challenges. Although allowed to serve, each juror over 70 was allowed a statutory automatic exemption.

The revolution in thinking about the abilities of those over 70 was reflected in statutory changes made in 1981. 'The free challenge was eliminated as unreasonable in a society where people were living longer and healthier lives, and were encouraged to participate in government. Challenges for cause for those determined to be unable to serve and the normal peremptory challenges were considered sufficient to satisfy the interests of litigants in obtaining capable jurors.^[11] In 1987, the language of the statute went full cycle: the upper age range for service was unlimited, leaving jurors to claim their exemptions and lawyers to use their challenges.

Physical and Mental Condition: Before 1829, the law imposed physical and mental qualifications for jury service. A juror had to be in possession of his natural faculties, and not be infirm or decrepit. The language remained in that exact form until 1977. In the major recodification of 1977, the test was modified so that a juror was required to be in possession of his natural faculties and not incapable by reason of mental or physical infirmity of rendering satisfactory jury service. This change was intended to eliminate the previous subjective tests for qualification.^[12]

In 1983, the Legislature eliminated the requirement that a juror be possessed of natural faculties; the basis for disqualification became a mental or physical condition or combination

Employment and Profession: Employment and profession have always been the basis of statutory limitations on jury service, at first constituting a basis for disqualification and then for an exemption to be claimed by the potential juror. By 1829, those permanently discharged or temporarily exempted from jury service included members of duly organized fire companies; employees of any glass, cotton, linen, woollen or iron manufacturing companies; superintendents, engineers, inspectors, toll collectors, lock-tenders, and weight masters of any canal actually constructed or navigated; a minister of the gospel; a teacher in any academy, college or school; non-commissioned officers, musicians and privates of a uniform company or troop; all those employed in the manufacture of coarse salt; keepers of alms-houses; practicing physicians with patients needing their attention, and surrogates or other holders of civil office whose duties were inconsistent with jury duty.

By 1901, there were additions to the kinds of work for which exemptions were permissible and differences in exemptions among the counties. Members of the clergy (not just those of the gospel) and attorneys in actual practice were granted exemptions. Pharmacists, veterinarians, telegraph and railroad employees, and licensed steam boiler engineers were added. Prison guards and employees of state asylums were exempted except in New York and Kings counties, In New York County an editor, editorial writer or reporter of a daily newspaper was exempted; in 1909 that exemption was applied statewide.

The 1915 Constitutional Convention, and the 1936 Judicial Council, were concerned about the impact of these exemptions upon the quality of jurors. The Council described exemptions from jury duty as a menace to the proper administration of justice and a major cause leading to deterioration of the jury. It noted that certain groups with exemptions were not unfit to serve as jurors and that certain exemptions were granted merely as rewards.

In 1936, exemptions were limited to clergy, physicians, dentists, pharmacists, embalmers and optometrists engaged in practice, practicing attorneys, members of the military, active members of fire companies or police forces, and officers and pilots on vessels actually involved in regular trips. As noted, in 1937 the women's exemption was added in place of the disqualification.

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