Batson v. Kentucky Brief Amici Curiae of the NAACP Legal Defense and Educational Fund, The American Jewish Committee, and the American Jewish Congress

    No, 84-6263

I n  t h e

&it|trrmr (tart nf tljr Imtrd Btzxtt&
October Term, 1984

J ames K irkland B atson,
Petitioner,

v.
Commonwealth of K entucky .

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF KENTUCKY

BRIEF AMICI CURIAE OF THE 
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

THE AMERICAN JEWISH COMMITTEE, AND 
THE AMERICAN JEWISH CONGRESS

J ulius L eV onne Chambers 
Charles Stephen  R alston*
Steven L. W inter

NAACP Legal Defense and 
Educational Fund, Ine.

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Anthony  (t. A msterdam
New York University Law School 
40 Washington Square South 
New York, New York 10012

Samuel R abinove
The American Jewish Committee
165 East 56th Street
New York, New York 10022

Lois W aldman
The American Jewish Congress
15 East 84th Street
New York, New York 10028

Attorneys for Amicus Curiae 

* Counsel of Record



Question Presented

Whether a prosecutor’s use of 
peremptory challenges to exclude Blacks 
from jury service because of their race 
violates the Sixth and Fourteenth Amend­
ments to the Constitution of the United 
States?

1



Index
Page

Interest of the Amici 1
Summary of Argument 5
ARGUMENT

I. INTRODUCTION 9

II. HISTORY OF THE 19
PEREMPTORY CHALLENGE

III. THE EXCLUSION OF BLACKS 24
FROM JURY SERVICE THROUGH
THE USE OF PEREMPTORY 
CHALLENGES VIOLATES THE 
FOURTEENTH AMENDMENT

IV. THE EXCLUSION OF BLACK 37
JURORS VIOLATES THE RIGHT
TO HAVE A JURY REPRESENTA­
TIVE OF THE COMMUNITY

V. EFFECTIVE MINIMALLY 47
INTRUSIVE MEANS EXIST TO 
REMEDY THE UNCONSTITU­
TIONAL MISUSE OF
PEREMPTORY CHALLENGES

Conclusion 60

- ii -



Table of Authorities
Page

Cases:
Akins v. Texas, 325 U.S. 398 (1945) 15
Alexander v. Louisiana, 405 U.S.

625 (1972) 3, 10, 35, 44
Apodaca v. Oregon, 406 U.S. 404

(1972) 42
Arlington Heights v. Metropolitan 

Housing Corp., 429 U.S. 252
(1977) 30, 35

Ballard v. United Stated, 329 U.S.
187 (1946) 38

Ballew v. Georgia, 435 U.S. 223
(1978) 44

Bob Jones University v. United
States, __ U.S. __, 76 L.Ed.2d
157 (1983) 12

Broadway v. Culpepper, 439 P .2d 1253
(5th Cir. 1971) 10

Brown v. Allen, 344 U.S. 443 (1953) 38
Carter v. Jury Commission, 396 U.S.

320 (1970) 3, 10
Cassell v. Texas, 339 U.S. 282 (1950)

- iii -

15



30
Columbus Bd. of Ed. v. Penick, 443 

U.S. 449 (1979)
Commonwealth v. Joyce, 18 Mass. App.

417, 467 N.E.2d 214 (Mass. App.
Ct. 1984), further appellate 
review denied, 470 N.E.2d 
798 (19141 55

Commonwealth v. Kelley, 10 Mass. App.
847, 406 N.E.2d 1327 (Mass. App.
Ct. 1980) 46

Commonwealth v. Perry, 15 Mass. App.
932, 444 N.E.2d 1298 (Mass. App.
Ct. 1983), further appellate 
review denied, 388 Mass. 1104,
488 N.E.2d 766 (1983) 54

Commonwealth v. Reid, 384 Mass. 247,
424 N.E.2d 495 (Mass. 1981) 55

Commonwealth v. Soares, 377 Mass. 461,
387 N.E.2d 499, cert, denied, 444 
U.S. 1 881 (1979) 13, 37, 53, 55, 58

Duncan v. Louisiana, 391 U.S. 145
(1968) 37

Ex parte Virginia, 100 U.S. 339 (1880) 10
Fay v. New York, 332 U.S. 261 (1947) 42

xv



Hill v. Texas, 316 U.S. 400 (1942) 15
Hirabayashi v. United States, 320 U.S.

81 (1943) 26
Hobby v. United States, __ U.S. __,

82 L.Ed.2d 260 (1984) 12
Korematsu v. United States, 323 U.S.

214 (1944) 26
Loving v. Virginia, 388 U.S. 1 (1967) 26
McCray v. Abrams, 750 F.2d 1113 (2nd 

Cir. 1984), reh. en banc 
denied , 756 F.2d 177 (1985) 37

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) 30, 32

Mitchell v. Johnson, 250 F. Supp. 117
(M.D. Ala. 1966) 3

Palmore v. Sidoti, __ U.S. __, 80
L .Ed.2d 421 (1984) 26

Patton v. Yount, __ U..S. __, 81
L.Ed.2d 847 (1984) 49, 56

People v. Boone, 107 Misc. 2d 301,
433 N.Y.S.2d 955 (Sup. Ct. 1980) 13

People v. Cobb, 97 111.2d 465, 455

v



N.E.2d 31 (1983) 58
People v. Hall, 672 P.2d 854,

859, 197 Cal. Rptr. 71 (1983) 54, 57
People v. Johnson, 22 Cal. 3rd 296,

583 P.2d 774, 148 Cal. Rptr.
914 (1978) 26

People v. Kagan, 420 N.Y.S. 2d 987
(N.Y'. Sup. Ct . App. Div. 1979) 13

People v. McCray, 57 N.Y.2d! 542,
457 N .Y.S.2d 441 , 443 N.E .2d
915 (1982) 13

People v. Payne, 106 111. App.
3d 1034, 62 111. Dec. 744 P

436 N.E.2d 1046 (111. Ct. App.
1982 ), rev1d , 9 111.2d 135,
457 N.E.2d 1202 (1983) 13, 22

People v. Thompson , 79 A.D. 2d 87,
435 N.Y.S.2d 739 (N. Y. Sup.
Ct. App. Div. 1981 ) 13

People v. Walker, 157 Cal. App .3d
1060 , 205 Cal . Rptr. 278
(Ct. App. 1984) 54

People v. Wheeler, 22 Cal. 258 , 148
Cal. Rptr. 890, 583 P. 2d 748
(1978) 13, 37 , 53, 54, 55, 56, 58

vi



59

People v. Williams, 628 P.2d 869,
174 Cal. Rptr. 317 (Cal. 1981)
(en banc)

Peters v. Kiff, 407 U.S. 493 (1972) 45
Rogers v. Lodge, 458 U.S. 613 (1982) 30
Roman v. Abrams, No. 85 Civ. 0763-CLB

(S.D.N.Y. May 15, 1985) 57
Rosales-Lopez v. United States 

U.S. 182 (1982)
, 451

49
Rose v. Mitchell, 443 U.S. 545 

(1979) 12, 60
Smith v. Texas, 311 U.S. 128 (1940) 38
State v. Brown, 371 So.2d 751 

(La. 1979) 14, 28
State v. Crespin, 94 N.M.2d

486, 612 P.2d 716 (1980) 13, 37, 53
State v. Gilmore, No. A-870-82 

(N.J. Super. Ct. App. Div 
March 8, 1985)

T4
• f

53
State v. Neil, 457 So.2d 482 

(Fla. 1984) 13, 37, 53
State v. Washington, 375 So.2d 

1162 (La. 1979) 15, 25, 28

- vii -



Strauder v. West Virginia, 
100 U.S. 303 (1880) 5 , 9 ,  10

Swain v. Alabama, 380 U.S. 202
(1965) passim

Taylor v. Louisiana, 419 U.S.
522 (1975) 38, 39, 40, 41, 43

Thiel v. Southern Pacific Co.,
328 U.S. 217 (1946) 26

Turner v. Fouche, 396 U.S. 346
(1970) 3, 10

United States v. Childress, 715
F . 2d 1313 (8th Cir, 1983) 13, 28

United States v. Clark, 737 F.2d
679 (7th Cir. 1984) 13

United States v. Jackson, 696 F .2d
578 (8th Cir. 1982) 14

United States v. Leslie, 759 F.2d 31
366 (5th Cir. 1985), rehearing 
en banc granted

United States v. McDaniels, 13, 31
379 F. Supp. 1243 (E.D. La. 1974)

United States v. Marchant, 25 U.S.
480 (1827)

- viii -

23



13
United States v. Newman, 549 F.2d 

240 {2nd Cir. 1977)
United States v. Pearson, 448 F.2d

1207 (5th Cir. 1971) 28
United States v. Schackleford,

59 U.S. 588 (1856) 23
United States v. Whitfield,

715 F .2d 145 (4th Cir. 1983) 13
United States Postal Service Bd. 

of Governors v. Aikens, 460 
U.S. 711 (1983) 30, 34

Virqinia v. Rives, 100 U.S. 313
(1880) 10

Wainwright v. Witt, __ U.S. , 83
L.Ed.2d 841 (1985) 49

Wheathersby v. Morris, 708 F.2d
1493 (9th Cir. 1983) 13

Whitus v. Georgia, 385 U.S. 545
(1967) 36

Williams v. Florida, 399 U.S. 78
(1970) 39

Williams v. Illinois, __ U.S. , 104
S.Ct. 2634 (1984) 14

IX



13
Willis v. Zant, 720 F.2d 1212 

(11th Cir. 1983)
Yick Wo v. Hopkins, 118 U.S. 356

(1886) 26

Statutes:
Act of March 3, 1865, ch. 86,

§ 2, 13 Stat. 500 23
Colo. Rev. St. §§ 13-71-107, et seq. 41
Federal Jury Selection and Service 

Act, Pub. L. 90-274, 82 
Stat. 53 11, 41

Idaho Code §§ 2-201 et seq. 41
Hawaii Rev. Stat. §§ 612-1 et seq. 41
Indiana Code §§ 33-4-5.5-1 et seq. 41
Maine Rev. St. §§ 1211 et seq. 41
Md. Ann. Code § 8-1-13 41
Minn. Stat. Ann. §§ 593-31 et seq. 41
Miss. Code 1972, §«S 13-5-2 et seq. 41
No. Dakota Code 17-09.1-01 et seq. 41

x



1 Stat. 119 (1790) 23
The Ordinance of Inquests, 33 Edw. 

c.2 (1305)
1. 21

28 U.S.C. § 1861 11, 41

Uniform Jury Selection and 
Service Act 11, 41

Other Authorities;
4 W. Blackstone, Commentaries 21
Brown, McGuire, and Winters,

The Peremptory Challenge 
as a Manipulative Device 
m  Criminal Trials;
Traditional Use or Abuse?
14 New Eng. L. Rev. 192 (1978)

16, 20, 22
Comment, A Case Study of the 

Peremptory Challenge; A 
Subtle Strike at Equal 
Protection and Due Process,
18 St. Louis L.J. 662 (1974) 14

Comment, Swain v. Alabama; A 20, 22 
Constitutional- Blueprint for 
the Perpetuation of the 
All-White Jury, 52 Va. L. Rev.
1157 (1966) ‘ 20, 22

xi



Jackson, Mississippi, Clarion 
Ledger, July 25, 1983 16

New Orleans Times-Picayune,
April 7, 1985 ^6

Sullivan, Deterring the
Discriminatory Use of 
Peremptory Challenges, 21 Am.
C n m .  L. Rev. 477 (1984) 27, 45

xii



No. 84-6263,
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1984

JAMES KIRKLAND BATSON, 
Petitioner, 
v .

COMMONWEALTH OF KENTUCKY, 
Respondent.

On Writ of Certiorari to the 
Supreme Court of Kentucky

BRIEF AMICI CURIAE OF THE 
NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC., THE 
AMERICAN JEWISH COMMITTEE, AND 
THE AMERICAN JEWISH CONGRESS

Interest of the Amici*

The NAACP Legal 
tional Fund, Inc.,

Defense and Educa- 
is a non-profit

‘Letters from the parties consenting to 
the filing of this Brief have been lodged 
with the Clerk of the Court.



2

corporation, incorporated under the laws 
of the State of New York in 1939. It was 
formed to assist Blacks to secure their 
constitutional rights by the prosecution 
of lawsuits. Its charter declares that 
its purposes include rendering legal aid 
without cost to Blacks suffering injustice 
by reason of race who are unable, on 
account of poverty, to employ legal 
counsel on their own behalf. For many 
years its attorneys have represented 
parties and have participated as amicus 
curiae in this Court and in the lower 
federal courts in cases involving many 
facets of the law.

The Fund has a long-standing concern 
with the issue of the exclusion of Blacks 
from service on juries. Thus, it has



3

raised jury discrimination claims in
1

appeals from criminal convictions,
pioneered in the affirmative use of civil

2
actions to end discriminatory practices, 
and, indeed, represented the petitioner in 
Swain v. Alabama, 380 U.S. 202 (1965), the 
case which first raised the issue of the 
use of peremptory challenges to exclude 
Blacks from jury venires.

The American Jewish Committee is a 
national organization of approximately 
50,000 members which was founded in 1906 
for the purpose of protecting the civil 
and religious- rights of Jews. It has 
always been the conviction of this 
organization that the security and the 
constitutional rights of American Jews can

E.g., Alexander v. Louisiana, 405 U.S. 625 (1972).
2 Carter v. Jury Commission, 396 U.S. 320 (1970); 

Turner v. FoucfTe73%lJ7sr346 (1970); Mitchell v. 
Johnson, 250 F. Supp. 117 (M.D. Ala. 1966).



4

best be protected by helping to preserve 
the security and the constitutional rights 
of all Americans, irrespective of race, 
religion, sex or national origin. The 
American Jewish Committee believes that 
the exclusion of Blacks from juries 
through the use of peremptory challenges 
is a grievous deprivation based on race 
which violates the Sixth and Fourteenth 
Amendments to the Constitution.

The American Jewish Congress is a 
national organization of American Jews 
founded in 1918 and concerned with the 
preservation of the security and constitu­
tional rights of all Americans. Since its 
creation it has vigorously opposed racial 
and religious discrimination in all areas 
of American life, including the adminis­
tration of justice. The American Jewish



5

Congress believes that the use of peremp­

tory challenges by prosecutors to exclude

persons from juries solely on the basis of 

their race or religion is in violation of 

the United States Constitution.

SUMMARY OF ARGUMENT

I.
The misuse of peremptory challenges 

to exclude Blacks from juries is a 

pervasive and pernicious practice. Its 

use has supplemented earlier and more 

obvious devices for preventing minorities 

from participating in this most fundamen-

tal of democratic institutions. The

practice violates both the Sixth and

Pourteenth Amendments to the Constitution 

and must be ended to make the promise of 

Strauder v. West Virginia at last a

reality.



6

II.
Historically, the prosecution did not 

have the right to challenge jurors 
peremptorily. Under the common law, 
peremptory challenges were given to the 
defense for the purpose of enforcing the 
defendant's underlying right to a fair 
and impartial jury of his peers. The 
right was extended to the prosecution by 
statute only in the mid-nineteenth 
century. Nothing in the history of the 
exercise of peremptory challenges by the 
prosecution suggests any reason for 
permitting them to be exercised in a way 
that is inconsistent with the Sixth and 
Fourteenth Amendments.

III.
The intentional exclusion of a black 

potential juror from actual service on a



7

jury violates the Fourteenth Amendment's 

guarantee of equal protection. Swain v. 

Alabama has been consistently misinter­

preted by the lower courts as permitting a 

successful objection to the racially 

discriminatory exercise of peremptory 

challenges in only an unduly limited and 

virtually unprovable set of circumstances. 

Trial courts should be no less free to 

infer intentional discrimination by 

prosecutors in a variety of factual 

contexts than they are in a wide range of 

other cases involving proof of intentional 

discrimination.

IV.

For a prosecutor to strike black 

jurors from a venire so as to render it 

unrepresentative of the community violates 

the Sixth Amendment. Although there is no



8

right to a jury that mirrors the communi­
ty, the Constitution prohibits the use of 
devices which affirmatively defeat a fair 
opportunity to be tried by a jury that 
reflects a fair cross-section of that 
community.

V.
There are a variety of remedies to 

correct the unconstitutional use of 
peremptory challenges. Although any 
method that is selected must realistically 
promise effectively to guard against 
discrimination, the states should be given 
some leeway to experiment with solutions 
that are consistent with their particular 
jury selection procedures.



9

ARGUMENT
I.

INTRODUCTION
One hundred and five years ago this 

Court held that "the very fact" that black 

people were prevented from serving on 

juries:

. . . because of their color, 
though they are citizens and may 
be in other respects fully 
qualified, is practically a 
brand upon them, affixed by the 
law; an assertion of their 
inferiority, and a stimulant to 
that race prejudice which is an 
impediment to securing to 
individuals of the race that 
equal justice which the law aims 
to secure to all others.

Strauder v. West Virginia, 100 U.S. 303, 
3 0 8 ( 1 880). More than a century later, 

the promise of Strauder —  that all dis­

criminatory acts directed towards black



10

citizens in the administration of justice
will be ended — ■ remains unfulfilled.

Until the 1970's, the primary device
for excluding Blacks from jury service was
simply to keep them off of the jury rolls.
Since Blacks never appeared on venires to
begin with, the use of the peremptory
challenge to get rid of them was rarely
required. When 100 years of decisions of
this Court reversing convictions for jury

3
discrimination, injunctions issued by

4
federal district courts, and the reform

Strauder v. West Virginia, 100 U.S. 303 (1880); 
Virginia v. Rives, 100 U.S. 313 (1880); Ex parte 
Virginia, 100 U.S. 339 (1880); see cases cited m  
Alexander v. Louisiana, 405 U.S. at 628-29, 632 
(1972).
E.g., Carter v. Jury Commission, supra; Turner v. 
Ftoudhe, supra; Broadway v. Culpepper, 439 F.2d 1253 
(5th Cir. 1971).

4



5
of federal and state jury selection laws 

made total exclusion impractical, the use 

of peremptory challenges to exclude those 

Blacks who were placed on venires became 

the method of choice to achieve the same 

historic goal of preventing Black citizens 

from participating in the criminal justice 

system. Although the means used to exclude 

Blacks has changed, the same pernicious 

consequence continues: black citizens do 

not have their rightful voice in an 

institution that is at the heart of a free 

and democratic society.

The exclusion of Blacks from juries 

not only stigmatizes them and deprives 

them of their right meaningfully to 

participate in the criminal justice 

system. It "destroys the appearance of

E.g., The Federal Jury Selection and Service Act, 28 
U.S.C. §§ 1861 et seq.; Uniform Jury Selection and 
Service Act, National Conference of Commissioners on 
Uniform State Laws, 1971.



12

justice and thereby casts doubt on the 
inteqrity of the judicial process . . .,
impair [ingj the confidence of the public 
in the administration of justice." Rose 
v. Mitc h e l l , 443 U.S. 545, 555-56 ( 1979);
accord Hobby v. United States, ___  U.S.
___ , 82 L . E d .2d 260, 277 ( 1984) (Stevens,
J., dissenting). Nothing could be more 
destructive to public confidence in the 
legitimacy of criminal justice than the 
specter of a prosecutor deliberately 
manipulating the process to exclude 
identifiable segments of the community on 
the basis of race, in contravention of 
"deeply and widely accepted views of 
elementary justice . . . Bob Jones
University v. United States, ___  U.S. ___ ,
76 L.Ed.2d 157, 174 ( 1983).

The proliferation of cases raising



13

the issue of this misuse of peremptory 

challenges demonstrates that the practice

is nationwide, arising in states from

California to New York and Massachusetts 
6

to Florida. Thus, the Illinois Supreme 

Court has reviewed "at least 33 cases in 

which criminal defendants have alleged 

prosecutorial misuse of peremptory

See, e.g., People v. Wheeler, 22 Cal. 3d 258, 148 
Cal. Rptr. 890, 583 P.2d 748 (1978)? State v. Neil, 
457 So.2d 482 (Fla. 1984},* People va Payne, 106 111. 
App. 3d 1034, 62 111. Dec. 744, 436 N.E.2d 1046 (111. 
Ct. 4pp. 1982), rev'd, 9 111. 2d 135, 457 N.E.2d 1202 
(1983); Cosrrconwealth v. Soares, 377 Mass. 461, 387 
N.E.2d 499, cert, denied, 444 U.S. 1 881 (1979); 
State v.Crespin, 94 N.M. 2d 486, 612 P.2d 716 (1980); 
People v. Kagan, 420 N.Y.S.2d 987 (N.Y. Sup. Ct. App. 
biv. 1979 )~; People v. Thompson, 79 A.D.2d 87, 435 
N.Y.S.2d 739 (N.Y. Sup. Ct. App. Div. 1981); People 
v. Boone, 107 Misc. 2d 301, 433 N.Y.S.2d 955 (Sup. Ct. 
'l980T;~Peq3].e v» McCray, 57 N.Y.2d 542, 457 N.Y.S.2d 
441, 443 N.E.2d 915 (1982); United States v. Newman, 
549 P.2d 240 (2nd Cir. 1977); United States v. 
McDaniels, 379 F. Supp. 1243 (E.D. EaT~T974)7lMlted 
States v. Childress, 715 F.2d 1313 (8th Cir. 1983); 
T5ut^~^tates~vritfiitfield, 715 F.2d 145 (4th Cir. 
?9§?y71H xted^EaEii~v7~C lark, 737 F.2d 679 (7th Cir. 
1984); Wheathersty v.Morris, 708 F.2d 1493 (9th Cir. 
1983)f"wIITIIv7 Zant, 720 F.2d 1212 (11th Cir. 
1983).



14
7

challenges to exclude Negro jurors." The 
Eighth Circuit has noted "the frequency 
with which we have been called upon to 
examine the prosecutor’s practices in this 
regard in the Western District of Mis­
souri." United States v. Jackson, 696 F .2d

8
578, 592 (8th Cir. 1982). And the
Louisiana Supreme Court reviewed 9 cases 
in 7 years from the same parish, 5 of 
which involved the same prosecutor. State 
v. Brown, 371 So.2d 751 .(La. 1979).

In addition to the many reported 
decisions, our experience and that of our 
cooperating attorneys has convinced us 
that the practice is common and flagrant.

See Williams v. Illinois, 104 S. Ct. 2364, 2365 
(1984) (denial of cert.) (Marshall, J., dissenting).
See also Comment, A Case Study of the Peremptory 
Challenge: A Subtle Strike at Equal Protection and 
Due Process, 18 St. Louis L.J. 662, 676-77 (1974), 
citing to studies finding that local prosecutors 
struck 83% and 67% of black jurors respectively in 
one year.



15

Indeed, prosecutors have publicly admitted 
that they seek to keep Blacks from sitting 
on criminal trials as a matter of course 
because they are afraid that Blacks will 
be too sympathetic to a defendant. Thus, 
an instruction book used by the prosecu­
tor's office in Dallas County, Texas, the

9 10
site of Hill v. Texas, Akins v . Texas,

11
and Cassell v. Texas, advised
prosecutors that they did not want a
"member of a minority group" on a jury
because he will "almost always empathize

12
with the accused." See also, State v.

9 316 U.S. 400 (1942).
10 325 U.S. 398 (1945).
11 339 U.S. 282 (1950).
12 The book states:

"III. What to look for in a juror.
"A. Attitudes
"1. You are not looking for a fair juror, 

but rather a strong, biased and sometimes 
hypocritical individual who believes that



16

Washington, 375 So.2d 1 162, 1 163 (La.
1979), where the prosecutor testified that
he routinely struck Blacks because of his
perception that they favored the 

13
accused.

but rather a strong, biased and sometimes 
hypocritical individual who believes that 
Defendants are different from them in kind, 
rather than degree.

"2. You are not looking for any member of 
a minority group which may subject him to 
oppression— they almost always emphathize with 
the accused.

"3. You are not looking for free-thinkers 
and flower children."

Brown, McGuire, and Winters, The Peremptory Challenge 
as a Manipulative Device in Criminal Trials: fradiz 
tional Use or Abuse? 14 New Eng. L. Rev. 192, 
224 (1978).

^  See also, New Orleans Times-Picayune, April 7, 1985, 
p. A— 16, and the Jackson, Mississippi, Clarion 
Ledger, July 15, 1983, p. 1A, quoting an Orleans 
Parish and a Hinds County prosecutor, respectively, 
to similar effect.



17

Our position is simple. The exclu­
sion of a single juror because of his or 
her race or national origin violates the 
Fourteenth Amendment's guarantee of equal 
protection. The issue in Swain, we 
submit, was not whether the exclusion of a 
single juror because of race violates the 
constitution, but rather how one proves 
the discriminatory motive of such a single 
exclusion. The lower courts have confused 
the two issues and have improperly read 
Swain as limiting the finding of a 
constitutional violation to those rare 
circumstances where it can be shown that 
prosecutors in case after case, over a 
long period of time, have used peremptory 
challenges to exclude Blacks. The con­
tinued misinterpretation of Swain that
allows the decision to be used as a cover



18

for a discriminatory practice should be 
repudiated.

We would also urge that the exclusion 
of Blacks from juries through the use of 
peremptory challenges violates the right 
to a jury representative of a fair 
cross-section of the community, by 
destroying the opportunity of having a 
representative jury seated. The lower 
courts have misconstrued holdings of this 
Court that there is no requirement that a 
particular jury mirror the community. 
These decisions do not hold that nothing 
can be done to end a practice which 
affirmatively prevents a representative 
jury from being seated.

In this brief we will discuss the 
Fourteenth and Sixth Amendments and will 
suggest remedies to end the misuse of



19

peremptory challenges that will not 

interfere with their proper use. First, 

however, we will briefly discuss the 

history of the peremptory challenge, and 

particularly its use by the prosecution. 

In this way the interest involved in the 

prosecutor's right to peremptorily 

challenge jurors, on the one hand, and the 

interest in ensuring that the criminal 

justice system is free from any taint of 

racial discrimination, on the other, will 

be put into proper perspective.

II.

THE HISTORY OF THE PEREMPTORY 
CHALLENGE

At common law, the prosecutor did not 

have the right to excuse peremptorily



-  20

potential jurors. Rather, that right
derives solely from statute, and gained
wide acceptance only in the last one
hundred years —  around the time that the
post-Civil War constitutional amendments
were ratified and this Court began to
apply the Fourteenth Amendment's guarantee
of equal protection to the wholesale
exclusion of blacks from the jury and

14
grand jury systems.

In early English law, jurors func­
tioned essentially as witnesses —  as 
fact-givers rather than fact-finders. The 
Crown therefore initially exercised 
complete control over their selection; any
unacceptable juror could be removed by the 

15
prosecution. Parliament enacted the

See, op. cite supra n. 12, at 195.
Op. cite supra, n. 12, at 194; Comment, Swain v. 
Alabama: A Constitutional Blueprint for the Perpe- 
tuiticn of The All-White Jury, 52 Va. L. Rev. 1157, 
1170-71 (1966)



21

16
Ordinance of Inquests in 1305 which

limited the Crown to challenging jurors 
for "cause certain." On the other hand, 
by the time of the American Revolution, 
the peremptory challenge was firmly rooted 
in the common law as one of a defendant1 s 
greatest protections —  in the words of 
Blackstone, "a provision full of that 
tenderness and humanity to prisoners, for 
which our English laws are justly fa-

33 Edw. 1. c.2 (1305).
4 W. Blackstone, Commentaries 353.

In reaction to the Ordinance of Inquests the 
English courts did fashion the practice of "standing 
aside" jurors. The prosecution can require a juror 
to whom it objects to "stand aside" until all other 
potential jurors have been called; after the defen­
dant has exercised all his challenges, if there are 
too few veniremen remaining to compose a jury, only 
then is the juror "stood aside" allowed to sit, 
unless the Crown can show cause why he should not be. 
As one court has noted, however,

17
mous.

16

The procedure of having a juror stand 
aside is not a perempto 
because, even when the 
erplcyed by the Crown, Which is seldom, the



22

The peremptory challenge for the 
defendant was thus a part of the common
law received by the American states, while
the grant of a similar privilege to the

18
prosecution was not. Extension of that
privilege to the prosecution was strongly
resisted in early state histories, and was

19
slow in gaining legislative acceptance. 
Thus, while one early decision of this 
Court asserted that the English practice 
of standing jurors aside was part of this

juror who has been stood aside may be 
actually seated as a juror after the 
defendant has exercised his challenges. 
Specifically, 26 Halsbury's Laws of 
England, par. 624 (4th ed. 1579) states: 
"The Crown has no right to make peremptory 
challenges."

People v. Payne, 105 111. App. 3d 1034, 1039 n. 4
(111. Ct. App. 1982).
See op. cit. supra note 12, at 194.
Bor a review of this history, see op. cit. supra note
15, at 1170-73.



23
20

country's common law heritage, the Court 
correctly held in 1856 that the prosecu­
tor's right to stand jurors aside was not 
part of American common law, and therefore 
only applied in federal court if the state
in which the federal court was sitting

21
extended that right to prosecutors. 
Although defendants in federal prosecu­
tions were guaranteed the peremptory

22
challenge by statute in 1790, it was not
extended to all federal prosecutors until 

23
1865.

In short, the peremptory challenge 
was not recognized in the Colonies and new 
States as a right of the prosecution.

20 United States v. Marchant, 25 U.S. 480, 483 (1827).
21 United States v. Shackleford, 59 U.S. 588, 590 

(1856).
22 1 Stat. 119 (1790).
23 Act of March 3, 1865, ch. 86, § 2, 13 Stat. 500.



24

Rather, it was given to the defense as a 
means of assuring the underlying right to 
a fair and impartial jury guaranteed by 
the Bill of Rights. It was a protection 
of the people against governmental 
overreaching. The use of peremptory 
challenges by the prosecution to undermine 
the right to a jury representative of the 
community stands history on its head. As 
we show below, it is at odds with the 
Constitution.

III.
THE EXCLUSION OF BLACKS FROM JURY 
SERVICE THROUGH THE USE OF PEREMPTORY 
CHALLENGES VIOLATES THE FOURTEENTH 
AMENDMENT.

In order to illustrate our argument 
that the use of the peremptory challenge 
to exclude Blacks is a denial of equal 
protection, we will use the following



25

hypothetical. By random selection from a 
truly representative jury wheel, a single 
Black is selected for the venire. The 
prosecutor uses a peremptory challenge to 
strike the sole Black juror, and announces 
that he has done so for the specific
purpose of excluding any Blacks from

24
sitting on the jury. Finally, the

prosecutor confesses that it is his
experience that black jurors tend to favor 
defendants, and therefore he believes it 
is to his advantage not to have them sit 
on the jury.

We submit that this hypothetical set 
of facts would establish a clear violation 
of the Equal Protection Clause of the 
Fourteenth Amendment. Indeed, the 
hypothetical prosecutor's action is of the 
type most clearly contemplated to be in

24 See State v. Washington, 375 So.2d 1162 (La. 1979).



26

violation of the Equal Protection Clause, 
whose "central purpose . . .  is the 
prevention of official conduct discrimi­
natory on the basis of race." Washington 
v ■ Day i s , 426 U.S. 229, 239 (1976). Not 
only is it an adverse action deliberately 
taken on the basis of race, and therefore
presumptively illegal under many decisions

25
of this Court, but it is based on
notions of racial characteristics which
are anathema to the most fundamental
principles that the equal protection

26
clause seeks to protect.

Palmare v. Sidoti, ___U. S. , 80 L.Ed.2d 421, 425
(1964)? Loving v. Virginia, 388 U.S. 1 (1967); 
Koreroatsu v. United States, 323 U.S. 214, 216 (1944).

26 YickWbv. Hopkins, 118 U.S. 356 (1886); Hirabayashi 
v. Qiited States, 320 U.S. 81, 100 (1943); Thiel v. 
Southern Pacific Co., 328 U.S. 217, 220 (1946). 
(1943); People v. Johnson, 22 Cal. 3d 296, 299, 583 
P.2d 774, 775, 148 Cal.Rptr. 914, 916 (1978).



27

The problem presented by the misuse 
of peremptory challenges arises only 
because it will be the rare case in which 
a prosecutor admits that the reason for 
his action was race. In Swain, this Court 
hypothesized another set of facts in which 
a violation could be proven by a statisti­
cal showing that over a long period of 
time, in case after case, the prosecutor
consistently struck Blacks from juries.
However, the hypothetical facts set out in
Swain were taken by lower courts to be the
only circumstances in which a constitu-

28
tional violation could be found, and the 
difficulty of assembling such a showing

27 380 U.S. at 223.
28 Sullivan, Deterring the Discriminatory Use of

~ -im. L. Rev. 477, 485

27



28

made it virtually impossible to prevail
regardless of the actual discriminatory 

29
practice,

There are a number of reasons why, in 
the twenty years since Swain, there have 
been virtually no cases in which a 
defendant has been able to demonstrate 
that prosecutors have stricken Blacks in 
case after case over a long period of 
time. First, courts do not routinely 
record voir dires, the race of jurors that 
are excused, or the grounds of excusal. 
Se c o n d , even where there are any records, 
such as transcripts of voir dires, there 
is no ready means to determine in which

oq See, e.g., United States v. Pearson, 448 F.2d 1207, 
1217 (5th Cir. 1971); United States v. Childress, 715 
F.2d 1313, 1317 (8th Clr. 1983), en banc. Of all the 
cases cited in the Appendix,"Th only two, have 
defendants been able to meet the Swain burden of 
proof, and both involved the same prosecutor, who had 
admitted under oath that he customarily struck all 
black jurors. State v. Brown, 371 So.2d 751 (La. 
1979); State v. Washington, 375 So.2d 1162, 1163-64 
(La. 1975J7-  --- ----



29

cases they have been made or kept. Third, 
most criminal defendants lack the re­
sources to conduct an investigation
adequate to assemble the necessary data.
Fourth , the issue will usually arise in
the middle of voir dire when Blacks are
st r u c k ; there will simply not be enough
time to conduct an inquiry unless a
lengthy continuance of the trial is
granted, with the accompanying disruption 
of the orderly course of justice. Fifth, 
for all of the above reasons, the only 
evidence available as a practical matter 
will be the testimony of presiding judges, 
court clerks, and members of the bar as to 
their recollection of events that occurred 
in years past. Finally, unlike an 
ordinary challenge to the make-up of the 
jury rolls, it is also totally impractical 
to raise the peremptory challenge issue in 
an aff irmative inj unctive action. In



30

addition to the impossibility of assem­
bling the proof, an order prohibiting the 
prosecutor from striking Blacks because of 
their race would be unenforcible without 
proof that that was his intent in a 
specific case.

The restrictive reading of Swain by
lower courts is inconsistent with other
decisions of this Court. In every other
c o n text , the Court has recognized the
ability of a trial judge to infer
discrimination from a wide variety of 

30
circumstances. Thus , the misinterpreta­
tion of Swain has resulted in anomalous 
results in comparison to every other area 
of discrimination. In one federal case,

30 E.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 
(1973) (erployment); anted States Postal Service Bd. 
of Governors v. Aikens, 460 U.S. 711 (1983) (employ­
ment); Rogers v. lodge, 458 U.S. 613 (1982) (voting); 
Columbus Bd. of EdV v. Penick, 443 U.S. 449 (1979) 
(school desegregation); Arlington Heights v. Metro­
politan Housing Corp,, 429 U.S. 252 (1977) (govern­
mental action).



31

for example, the defendants challenged the 
make-up of the jury rolls as unlawfully 
excluding Blacks. The district court 
rejected the claim, holding that, although 
it was a close question, the under-repre­
sentation of Blacks was not enough to 
establish a violation. The prosecutor 
then proceeded to strike all the Blacks 
from the venire when the actual jury was 
assembled. Despite the mutually con­
firming discriminatory practices, the 
district court held that because of the 
absence of a Swain showing of a long
history of striking Blacks, there was not

31a constitutional violation under Swain.

31 United States v. McDaniels, 379 F. Supp. 1243 (D. La. 
1974). The court did order a new trial, however, "in 
the interests of justice" pursuant to Fed. R. Crim. 
P. 33. See also United States v. Leslie, 759 F.2d 
366 (5th Cir. 1985), rehearing en banc granted, May 
14, 1985.



32

Under ordinary rules for adjudication 
of a claim of intentional discrimination? 
however? these circumstances would have 
allowed the court to draw the inference 
that the prosecutor had a discriminatory 
motive,, Similarly? when a prosecutor with 
a limited number of pereroptories uses all 
of them to exclude the few Blacks on the 
panel? as occurred in petitioner Batson’s 
case? a court should be permitted to
infer a discriminatory motive sufficient 
to cast upon the prosecutor the burden of
coming forward with a "legitimate,

32
non-discriminatory reason" for his

33
action.

32 McDonnell Douglas v. Green, 411 U.S. 792, 803 (1974).
33 In the present case the trial court did not make such 

a judgment because he specifically declined to make 
any factual inquiry on an erroneous legal theory. The 
court took the view that? as a matter of law, the 
constitutional cross-section requirement was limited 
to "the whole, entire panel and the selection 
process," and that ”[a]ny body can strike anybody 
they want to" without constitutional restraint. 
(Appendix to Petition for Certiorari? at p. 16.) This



Other inquiries would permit a judge 
to infer discrimination. Did the prosecu­
tor strike all the Blacks called to the 
jury box, or only some of them? How many 
Blacks, absolutely or in comparison to 
w h i t e s , were struck? What proport ion of 
peremptories were use to strike Blacks? 
Were Blacks questioned on voir dire, and, 
if so, in the same way or as extensively 
as the whites whom the prosecution 
struck? What was the demeanor of the 
prosecutor and the black potential jurors 
during their exchanges? Did they appear 
to be fair and impartial jurors? Did the 
white jurors who were struck have common 
attributes, visibly adverse reactions to

rule of law was expressly endorsed by the Kentucky 
Supreme Court as the basis for affirming Batson' s 
conviction cn appeal: "an allegation of the lack of 
a fair cross section which does not concern a 
systematic exclusion from the jury drum does not rise 
bo constitutional proportions." (Id., at p. 5)]



34

the prosecutor, or obvious drawbacks from 
a prosecutorial perspective? Did the 
Blacks? Conversely, did the prosecutor 
retain whites who had the same attributes 
as the Blacks that were struck? Did the 
prosecutor attempt to purge the jury of 
Blacks by other means, e,g., did he 
challenge Blacks for cause while passing 
up equally available for-cause challenges 
to whites? Did the prosecutor use his last 
peremptory challenge to get rid of a 
Black, in contravention of the well-recog­
nized tactic of trial lawyers not to run 
the risk of getting a worse replacement?

In short, trial court judges should
be given the freedom to infer intentional
discrimination from the totality of the
circumstances in the particular case 

34
before them in the same way they may

United States Postal Service Bd. of Governors v.
Aikens, 460 U.S. 711 (1983). ~



35

infer such discrimination in a variety of 
other types of cases decided since Swain. 
Thus, as this Court noted in Arlington 
Heights v. Metropolitan Housing Corp., 429 
D.S. 252, 266 n. 14 (1977),

. . . [A] consistent pattern of
official racial discrimination is 
[not] a necessary predicate to a 
violation of the Equal Protection 
Clause. A single invidious dis­
criminatory governmental act would 
not necessarily be immunized by the 
absence of such discrimination in the 
making of other comparable deci­
sions .

In jury discrimination cases this 
Court has also found a violation of the 
Fourteenth Amendment by a showing that 
eligible Blacks had been eliminated "at 
each stage of the selection process until 
ultimately an all-white grand jury was 
selected to indict him" ini the particular
case of the defendant. Alexander v



36

Louisiana, 405 U.S. 625, 629 (1972)?5

In sum, the Fourteenth Amendment is 
violated whenever the State denies equal 
protection of the laws, even in a single 
instance. Repeated denials of equal 
protection need not be shown in order to 
trigger the Amendment's protection in an 
individual case.

35 Ihe Court noted that Alexander was not a case where 
the systematic exclusion of Blacks over a period of 
years had been shown. Rather, the proof went only to 
the selection process for the particular venire and 
jury. Id. See also Whit us v. Georgia, 385 U.S. 545, 
549-50 (1967): it is "the law of this Court as 
applied to the States through the Equal Protection 
Clause of the Fourteenth Amendment, that a conviction 
cannot stand if it is based on an indictment of 
grand jury or the verdict of a petit jury from which 
Negroes were excluded by reason of their race." 
(Emphasis added.)



37

IV.
THE EXCLUSION OF BLACK JURORS 
VIOLATES THE RIGHT TO HAVE A JURY 
REPRESENTATIVE OF THE COMMUNITY.

A number of lower courts have held
that Swain should be reexamined in light

36
of subsequent decisions that have held
the Sixth Amendment guaranty of a repre-

37
sentative jury applicable to the states.
The question is: since the use of
peremptory challenges to exclude Blacks 
results in unrepresentative juries, is the 
practice unconstitutional?

O/T

Duncan v. Louisiana, 391 U.S. 145 (1968); Taylor v. 
Louisiana, 419 U.S. 522 (1975).

^  McCray v. Abrams, 750 F.2d 1113 (2nd Cir. 1984), reh. 
en banc denied, 756 F.2d 177 (1985). People v. 
Vheeler, 22 Cal.3d 258, 148 Cal. Rptr. 890, 593 P.2d 
748 (1978); State v. Nail, 457 So.2d 482 (Fla. 1948); 
Gamonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499
(1979) ;State v. Crespin, 94 N.M. 486, 612 P.2d 716
(1980) .



38

Taylor v, Louisiana, 419 U.S. 522 

(1975), held that "[t]he unmistakable 

import of this Court's opinions, at least 

since 1940 . . .  is that the selection of 

a petit jury from a representative cross 

section of the community is an essential 

component of the Sixth Amendment right to 

a jury trial.” 419 U.S. at 528. In Smith 

v. T e x a s , 311 U.S. 128, 130 (1940), the 

Court declared that exclusion of racial 

groups from jury service was "at war with 

our basic concepts of a democratic society 

and a representative government.” Ballard 

v. United States, 329 U.S. 187 ( 1946), 

reversed a conviction by a jury from which 

women had been excluded, relying on a 

federal statutory "design to make the jury 

a 'cross-section of the community.'" In

Brown v. Allen, 344 U.S. 443, 474 ( 1953),



39

the Court asserted that the source of jury 
lists roust "reasonably reflect . . .  a 
cross-section of the population suitable 
in character and intelligence for that 
civic duty."

In Taylor the Court also relied on 
its decision in the six-person jury case, 
which had stated that a jury should "be 
large enough to promote group deliberation 
. . . and to provide a fair possibility 
for obtaining a representative cross-sec­
tion of the community." Williams v. 
Florida, 399 U.S. 78, 100 ( 1970). On the 
basis of this precedent, the Court 
declared:

We accept the fair-cross-section 
as fundamental to the jury trial 
guaranteed by the Sixth Amendment and 
are convinced that the requirement 
has solid foundation. The purpose of 
a jury is to guard against the



40

exercise of arbitrary power —  to 
make available the common sense 
judgment of the community as a hedge 
against the over-zealous or mistaken 
prosecutor . . . This prophylactic 
vehicle is not provided if the jury 
pool is made up of only special 
segments of the populace or if large, 
distinctive groups are excluded from 
the pool. Community participation in 
the administration of the criminal 
law, moreover, is not only consistent 
with our democratic heritage but is 
also critical to public confidence in 
the fairness of the criminal justice 
system . . . [T]he broad representa­
tive character of the jury should be 
maintained, partly as assurance of a 
diffused impartiality and partly 
because sharing in the administration 
of justice is a phase of civic 
responsibility.' Thiel v. Southern 
Pacific Co., 328 U.S. 217, 227 (1946) 
(Frankfurter, J ., dissenting).

Taylor v. Louisiana, 419 U.S. at 530-31.



41

The requirement of a fair cross-sec­
tion theory in jury selection has also
been adopted by statute as "the policy of

38
the United States." Taylor quoted
approvingly from the House Report on the 
Federal Jury Selection and Service Act:

It must be remembered that the 
jury is designed not only to under­
stand the case, but also to reflect 
the community's sense of justice in 
deciding it. As long as there are 
significant departures from the cross

Federal Jury Selection and Service Act of 1968, Pub. 
L. 90-274, 82 Stat. 53, 28 U.S.C. §§ 1861 et seq. 
Section 1862 provides that:

No citizen shall be excluded from service as a 
grand or petit juror . . .  on account of race, 
color, religion, sex, national origin, or 
econanic status.

See also, Section 2 of the Uniform Jury Selection and 
Service Act (National Conference of Commissioners on 
Uniform State laws, 1970), and Md. Ann. Code § 
8-1-13. The Uniform Act has been substantially 
adopted by eight states. Colo. Rev. St. §§ 13-71-107 
to 13-71-121 (1971); Idaho Code §§ 2-201 to 2-221 
(1971); ESiwaii Rev. Stat. §§ 612-1 to 612-26 (1973); 
Indiana Code §§ 33-4-5.5-1 to 33-4-5.5-22 (1973); 14 
Maine Rev. St. §§ 1211 et seq. (1971); Minn. Stat. 
Ann. §§ 593-31 to 593-50 (1977); Miss. Code 1972, §§ 
13-5-2 et sea. (1974); No. Dakota Code §§ 17-09.1-01 
to 27-09.1-22 (1971).



42

sectional goal, biased juries are the 
result -- biased in the sense that 
they reflect a slanted view of the 
community they are supposed to
represent.

419 U.S. at 26 n. 37.
The argument based on the Sixth

Amendment is not inconsistent with
decisions of this Court which hold that
the defendant has no right to have his
particular jury represent the community

39
with precision. Thus, for example, in a 
community in which one third of the 
persons eligible for jury service are 
Black there is no right to have a jury 
with four Blacks out of the 12 jurors.

Although this proposition is correct, 
it does not negate the conclusion that the

Apodaca v. Oregon, 406 U.S. 404, 413 (1972) (plu- 
rality opinion); Fay v. New York, 332 U.S. 261, 284 
(1947).



43

affirmative use of peremptory challenges
to produce an unrepresentative jury
violates the Sixth Amendment. What the
Court has held is that, assuming a system
of jury selection which results in jury
lists that are representative of the
community, the use of a neutral device to
select particular juries does not violate
the Fourteenth Amendment just because in a
particular case the jury may not precisely

40
mirror that community. Put another
way, although there is an affirmative 
obligation to have a process by which a 
representative jury can be chosen, there 
is not an affirmative obligation to 
achieve the result of juries that are 
precisely representative.

40 See, e.g., Taylor v. Louisiana, 419 U.S. at



44

Bat the converse must also be true: 
there is a right not to have selection 
methods that result in unrepresentative 
juries. The protections of the Sixth and 
Fourteenth Amendments cannot stop with the 
composition of the jury roll (or "drum" in 
this case), but extend to the selection of 
the specific jury itself. See Ballew v. 
Georgia, 435 U.S. 223 (1978); Alexander v. 
Louisiana, 405 U.S. 625 (1972). Thus, a 
defendant has the right to a fair oppor­
tunity for a jury on which are represented 
the various groups that make up the 
community in which he is tried. To allow 
the unscrutinized use of peremptory 
challenges on the basis of race biases the 
process as surely as the exclusion of 
Blacks from the jury lists or drum.

The right to a fair cross-section is



45

not based on the notion that individuals
vote to convict or acquit because of the
racial group to which they belong; rather,
it derives from the principle that juries
should contain representatives of the
various groups in the community so that
their opinions, voices, points of view,
and perceptions come to bear on the
deliberative process. When a prosecutor
removes Blacks from the jury the result is
a jury which is insulated from one of

41
those viewpoints and voices.

The question of whether the use of 
peremptory challenges has violated the 
cross-section requirement will, after all, 
only arise in a particular case when a 
fair system has produced a panel of 
potential jurors that includes Blacks.

Bsters v. Kiff, 407 U.S. 493, 503-04 (1972); see op. 
cit. supra n. 28, for an example of the impact on a 
"jury's deliberations of the experiences of a black 
juror.



46

Unless the prosecutor strikes them, a
representative jury will sit. If then the
prosecutor makes the jury unrepresentative
by striking some or all of the Blacks, his
abuse of the peremptory challenge violates

42
the Sixth Amendment.

To illustrate, one may assume a county that is 20% 
black and that has a jury roll that is also 20% 
black. In trial #1, 20 potential jurors are randomly 
selected, one of whan is black, a result well within 
the range of probability. That single Black is 
excused for a valid, racially-neutral reason, and an 
all-white jury sits. That result does not violate 
the Sixth Amendment.

In trial #2, twenty potential jurors are 
randomly selected, 4 of whom, or 20%, are black. 
Through neutral selection criteria 2 of the 12 
jurors to sit will be black, or almost 20%. The 
prosecutor then affirmatively creates a non-repre­
sentative jury by striking the two Blacks. That 
result does violate the Sixth Amendment.



47

V.
EFFECTIVE, MINIMALLY INTRUSIVE MEANS 
EXIST TO REMEDY THE UNCONSTITUTIONAL 
MISUSE OF PEREMPTORY CHALLENGES
Amici believe that it is clear that

the exclusion of Blacks from juries
through the use of peremptory challenges
violates both the Sixth and Fourteenth
Amendments to the Constitution. There are
numerous ways in which these violations
can be remedied. They will of necessity
vary from locality to locality depending
on the particular jury selection practices
in use. The appropriate remedy may also
vary with the nature of the constitutional
violation, depending on the amendments
invoked. Amici therefore suggest that the
lower state and federal courts be given



48

leeway to develop appropriate remedies in 

light of local practices and condi­

tions .

In the first analysis, however, the 

prophylactice effect of a pronouncement by 

this Court that the misuse of peremptory 

challenges violates both the Sixth and 

Fourteenth Amendments cannot be over-esti­

mated. At present, prosecutors can and do 

indulge the same misinterpretation of 

Swain that prevails in the lower courts. 

They think that the "case after case" 

language in the Swain opinion defines a 

substantive principle of constitutional 

law rather than a principle relating to 

the sufficiency of factual proof based on 

statistics (see page 27, supra) . Thus, 

the prosecutor who is conscientious in his 

desire to obey the Constitution never-



49

theless sees nothing unconstitutional 
about peremptorily challenging blacks qua 
blacks in particular cases, so long as he 
does not do it in all cases. Told that 
this is indeed unconstitutional, the 
conscientious prosecutor will stop doing 

it.
To the extent that prosecutors do not 

stop misusing peremptory challenges, the 
primary agency for enforcing the Constitu­
tion will be the trial judge, in pro­
ceedings prior to the attachment of
jeopardy. As this Court has recognized in

43
other contexts, trial judges are
experienced and discerning in the inter­
pretation and understanding of what is 
being conveyed by the demeanor and 
interaction of the participants during the

See, Rosales-Lopez v. United States, 451 U.S. 182
(1982); Patton v. Yount, ___U.S. ___ , 81 L.Ed.2d 847
(1984); Wainwright v. Witt, U.S. , 83 L.Ed.2d 
841 (1985).



50

process of jury selection. They are fully 
capable both of recognizing a prima facie 
case of racially discriminatory peremptory 
challenges by the totality of the circum­
stances of the case before them, and of 
taking effective action to remedy the 
abuse.

The first thing that a trial judge 
faced with an apparent prosecutorial 
misuse of peremptories may do is to ask 
the prosecutor for an explanation. This 
alone will often suffice to warn the 
prosecutor that his behavior is under 
scrutiny, and make him change his ways. If 
his explanation for his past behavior is 
unsatisfactory, or if his behavior 
persists under circumstances that render 
the explanation hollow, the trial judge 
then has numerous options to correct the



51

problem. He can disallow a peremptory, 
dismiss the partially-selected jury and 
bring in a new panel, or take other 
pretrial corrective action.

For example, there exists a simple, 
direct, and highly effective way both to 
correct the exclusion of Blacks and to 
leave undisturbed the proper use of 
peremptory challenges. A state need only 
adopt a practice that would permit defense 
counsel to object upon the exclusion of a 
member of a racial or national origin 
minority group member. From that point on, 
if a black, Hispanic, etc., juror were 
excluded by use of a peremptory challenge, 
he or she would be replaced by a member of 
the same group. This would be directly 
responsive to the nature of the violation, 
insuring a representative cross-section of



52

the community on the jury. At the same
time, it allows the prosecution to strike
a juror for any reason other than race.

Such a rule would also have the great
advantage of not requiring the prosecutor
to explain the reasons for any challenge.
Moreover, the mere existence of the rule
would do much to end any discriminatory
practice since prosecutors would know
ahead of time that they would be unable,
as a practical matter, to use challenges

44
to exclude all Blacks from juries.

Another possibility is the highly 
successful remedy that has been working 
for more than six years in California and

44-------- ----Although this particular rule would be a race-con­
scious remedy, it would not adversely affect the 
rights of a person who was not a member of the 
minority group, since that person would simply be 
selected later and would not lose his or her right to 
jury service.



53
45

Massachusetts without impeding the
efficient administration of justice, or 
infringing significantly upon the wide 
discretion that has been traditionally 
accorded to prosecutors in the exercise of 
their peremptory challenges.

Briefly stated, the system developed 
by California and Massachusetts requires 
that the defendant demonstrate a prima 
facie case of discriminatory intent before 
the trial judge will look beyond the 
traditional presumption that the prosecu­
tor is using his peremptory challenges in 
a permissible manner. If the judge finds 
that a prima facie case has been made, the 
prosecutor is given the opportunity to

45 See People v. Wheeler, 583 P.2d 748, 148 Cal. Rptr. 
890 (1978) (Mosk, J.); Commonwealth v. Soares, 377 
Mass. 461, 387 N.E.2d 499 (197$). This model has 
been adopted elsewhere. See State v. Crespin, 94 
N.M. 486, 612 P.2d 716 (1980)? State v. Neil, 457 
So.2d 481 (Fla. 1984), and State v. Gilmore, No. 
A-870-82 T4 (N.J. Super. Ct. App. Div., March 8, 
1985).



54

show that his challenges are not predi­
cated on group bias. The reasons for the 
challenges do not have to be sufficient to 
sustain a challenge for cause, but could
relate to any of the many legitimate

46
reasons for peremptory challenges. The
judge will examine the prosecutor's
reasons and will dismiss the venire or 

47
panel or disallow the particular

48
challenge only if the prosecutor fails

See People v. Hall, 672 P.2d 854, 859, 197 Cal. Rptr. 
71 (1983); People v. Wheeler, 583 P.2d at 760, 148 
Cal. Jptr. 890. See, e.g., Commonwealth v. Kelly, 10 
Mass. App. 847, 406 N.E.2d 1327, 1328 (Mass. App. Ct. 
1980) (accepting prosecutor's challenge based on the 
prospective juror's "demeanor, manner and the 'smirk 
on her face'"); People v. Walker, 157 Cal. App. 3d 
1060, 205 Cal. Ifctr. 278, 280 (Ct. App. 1984) (trial 
court accepts prosecutor's explanation that a 
prospective juror "stood out as 'a comic'"),

47 People v. Wheeler, 583 P.2d at 765. Whether the 
venire as a whole*or only the panel drawn for the 
particular case would be dismissed, could depend on 
the procedures used in the jurisdiction and the 
practicality of assembling a new venire without 
delay.

48 Qarmanwealth v. Perry, 15 Mass. App. 932, 444 N.E.2d 
1298, 1300, (Mass. App. Ct. 1983), further appellate 
review denied, 388 Mass. 1104, 448 N.E.2d 766 (1983);



55

to persuade the court that the challenges 
were exercised for nondiscriminatory 
reasons.

This remedy for the discriminatory
use of peremptory challenges leaves the
jury selection process unaffected in the

49
vast majority of cases. In order to
precipitate such an inquiry, the defen- 

50
dant must demonstrate a "strong likeli-

Gamonwealth v. Reid, 384 Mass. 247, 424 N.E.2d 495, 
500 (Mass. 1981).
Amici have examined all of the reported cases in 
California and Massachusetts involving claims by 
criminal defendants of racial discrimination under 
Wheeler and Soares. There have been a total of 15 
such cases in California (an average of barely more 
than 2 a year.) In Massachusetts, where the Soares 
case has been in effect for six years, there have 
been 13 such cases. (In New Mexico, which adopted the 
Wheeler~Soares approach five years ago, there has 
been only one reported case involving a claim under 
the rule.)
In Massadhuetts, judges occasionally investigate the 
discriminatory use of peremptory challenges on their 
own initiative. See Commonwealth v. Joyce, 18 Mass. 
App. 417, 467 N . O d  214, 218 (Mass. App. Ct.1984), 
further appellate review denied, 470 N.E.2d 798
( M ) 7 —  -------- ----------------------------------



56

hood" that Blacks "are being challenged
because of their group association rather
than because of any specific bias". This
showing may be on the basis of evidence
such as that suggested at pp. 30-34, 

51
the nature of the questioning, 

the demeanor of the potential jurors or
the prosecutor, cf. Patton v. Yount, ___
U.S. ___ , 81 L.Ed. 2d 847 ( 1984), or any
other of a number of factors that ordi­
narily permit a trier of fact to infer 
bias.

People v. Wieeler, 583 P.2d at 764. The California 
court listed sane of the factors the defendant might 
rely upon in demonstrating discriminatory uses of 
challenges. These were (1) that the prosecutor had 
struck most or all of the members of the identified 
group from the venire or (2) that he had used a 
disproportionate number of his peremptory challenges 
against members of the group or (3) that the jurors 
in question have only their group identification in 
cormon and that they otherwise are as heterogeneous 
as the community as a whole. 583 P.2d at 764, 148 
Cal. iptr. 890. Courts will also consider the race 
of the defendant and the victim and whether the 
prosecutor's questioning of the excluded jurors was 
"desultory." Id.



57

One trial judge, disagreeing with his 
own Circuit Court of Appeals, has argued 
that providing a remedy for the misuse of 
peremptory challenges will necessitate 
"twelve mini-trials" in every case. See 
Roman v. Abrams, No. 85 Civ. 0763-CLB, 
slip. op. at 20 (S.D.N.Y. May 15, 1985). 
The record in California and Massachu­
setts, the two states with the longest 
experience with this remedy, refutes this 
charge. The California Supreme Court has 
recently found no empirical evidence to 
support a claim that this remedy has 
proved "unworkable" in the trial courts. 
People v. Hall, 672 P.2d 854, 859, 197
Cal. Rptr. 71 (1983) (en banc).

Even though minimally intrusive, the 
Wheeler-Spares remedy has been effective
in reducing the intentionally discrimi-



58

natory use of peremptory challenges, as 
the recent reported decisions in Cali­
fornia and Massachusetts attest. None of 
these cases involves a fact pattern 
showing as blatant a misuse of peremptory
challenges as occurred before Wheeler and

5 2Soares were decided. _■—  ----  Compare , e »g , ,
People v. Cobb, 97 111. 2d 465, 455 N.E.2d 
31 (1983). The experience in California
and Massachusetts demonstrates that the 
discriminatory use of peremptory chal­
lenges is not only reprehensible but also 

53
remediable.

In Soares itself, the prosecution used peremptory 
challenges to eliminate twelve of the thirteen black 
venirepersons. 387 N.E.2d at 508. In Wheeler, the 
state excluded all of the blacks in the venire 
(approximately seven) by using peremptory challenges. 
583 P.2d at 752-54.
There are, of course, other possible remedies, 
including abolishing peremptory challenges or 
limiting them to the defense as under the common law. 
A state may went to provide for additional voir dire, 
so that the prosecutor (and defense counsel) will 
have a more informed basis for exercising their 
challenges. Indeed, the California Supreme Court has



59

None of the potential available 
remedies impedes the vigorous and 
effective prosecution of crime; none 
delays trials more than momentarily or 
encumbers them significantly. Indeed, 
administration of the rule would involve 
less disruption of trials than the 
"case-after-case" rule currently applied: 
under the prevailing misinterpretation of 
Swain jury selection must be suspended 
pending an evidentiary hearing into the 
prosecutor's record in past cases.

recently expanded the scope of voir dire by holding 
that counsel may asik questions reasonably designed to 
assist in the intelligent exercise of peremptory 
challenges even if such questions may not uncover 
grounds sufficient to sustain a challenge for cause. 
People v. Williams, 628 P.2d 869, 174 Cal. Rptr. 317 
(Cal. 1981) (en banc). Thus, prosecutors are given 
an opportunity to uncover evidence of specific bias 
and to exercise their peremptory challenges in a 
constitutional manner. Id. at 875.



60

Conclusion
No one can "deny that, [more than 114 

years after the close of the War Between 
the States and nearly 100 years after 
Strauder, racial and other forms of 
discrimination still remain a fact of 
life. . . . " Rose v. Mitchell, 443 U.S.
at 558 . The final cutting off of all 
means to perpetuate the practices first 
condemned in Strauder is not only overdue, 
but essential to ensure both the reality 
and the appearance of justice in our 
society.

For the foregoing reasons, the 
decision below should be reversed.



Respectfully submitted

JULIOS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON * 
STEVEN L. WINTER

NAACP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street 
16th Floor
New York, N.Y. 10013 
(212) 219-1900

ANTHONY G. AMSTERDAM 
New York University 

Law School
40 Washington Square South 
New York, N.Y. 10012

SAMUEL RABINOVE
The American Jewish 

Committee
165 East 56th Street 
New York, N.Y. 10022

LOIS WALDMAN
The American Jewish 

Congress
15 East 84th Street 
New York, N.Y. 10028

Attorneys for Amici Curiae
* Counsel of Record



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