Batson v. Kentucky Brief for the Lawyers' Committee for Civil Rights Under Law as Amicus Curiae

    No. 8 4 - 6 2 6 3

In The

Supreme Court of tfjc tlm’teb States
October T erm, 1984

JAMES KIRKLAND BATSON,
Petitioner,

COMMONWEALTH OF KENTUCKY,
Respondent.

On Writ Of Certiorari To 
The Supreme Court Of Kentucky

BRIEF FOR THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW 

AS AMICUS CURIAE

F red N. F ishman  
R obert H. K app 

Co-Chairmen 
N orman R edlich 

Trustee
W illiam L. R obinson 
N orman J. Chachkin  
LAWYERS’ COMMITTEE FOR 

CIVIL RIGHTS UNDER LAW 
Suite 400
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

B arry S ullivan 
Counsel of Record 

R ichard P. S teinken  
M ichael T . Brody 
JENNER & BLOCK 
One IBM Plaza 
Suite 4400
Chicago, Illinois 60611 
(312) 222-9350

A ttorneys for Am icus Curiae

Midwest Law Printing Co., Chicago 60611, (312) 321-0220



TABLE OF CONTENTS

P age

TABLE OF AUTHORITIES ..............................  ii
STATEMENT OF INTEREST 

OF AMICUS CURIAE .................................... 1
STATEMENT ........................................................  2
INTRODUCTION AND SUMMARY 

OF ARGUMENT ............................................... 3
ARGUMENT:

I. THE USE OF PEREMPTORY CHAL­
LENGES TO EXCLUDE MEMBERS OF A 
RACIAL GROUP FROM JURY SERVICE 
IN AN INDIVIDUAL CASE VIOLATES 
BOTH THE SIXTH AND FOURTEENTH 
AMENDMENTS .......................................  7
A. The Use of Peremptory Challenges to

Exclude Members of a Racial Group 
from Jury Service Violates the Sixth 
Amendment  ..........................  7

B. The Use of Peremptory Challenges
to Exclude Members of a Racial 
Group from Jury Service Violates the 
Equal Protection Clause of the Four­
teenth Amendment  ................... 11

II. STATE AND FEDERAL COURTS HAVE 
DEVELOPED A WORKABLE ALTER­
NATIVE TO SWAIN WHICH PROTECTS 
THE CONSTITUTIONAL RIGHTS OF 
CRIMINAL DEFENDANTS AND PRE­
SERVES THE DISCRETION OF PROSE­
CUTORS IN EXERCISING PEREMPTORY 
CHALLENGES .......................................  17



11

A. State and Federal Courts Have
Developed a Rule Which More Effec­
tively Balances the Competing Con­
cerns Identified in S w a in ..............  18

B. The Wheeler Rule is Necessary to 
Ensure the Constitutional Exercise
of Peremptory Challenges ...............  20

CONCLUSION ......................................................  25

APPENDIX A .........................................................  A-l

TABLE OF AUTHORITIES

Cases P age

Adams v. Texas, 448 U.S. 38 (1980) ................. 10
Alexander v. Louisiana, 405 U.S. 625 (1972) ..

.........................................   3,5,12,14
Apodaca v. Oregon, 406 U.S. 404 (1972) ...........  13
Avery v. Georgia, 345 U.S. 559 (1953) .............  3, 12
Ballard v. United States, 329 U.S. 187 (1946) .. 12
Ballew v. Georgia, 435 U.S. 223 (1978) ................ 9
Board of Regents v. Roth, 408 U.S. 564 (1972) .. 24
Bordenkircher v. Hayes, 434 U.S. 357 (1978) .. 24
Carter v. Jury Commission, 396 U.S. 320 (1970) . 9
Cassell v. Texas, 339 U.S. 282 (1950) ............. . 3
Castaneda v. Partida, 430 U.S. 482 (1977)___ 12
Commonwealth v. Brown, 11 Mass. App. Ct. 288,

416 N.E.2d 218 (1981) ....................................  22



Ill

Commonwealth v. Gagnon, 16 Mass. App. Ct. 110,
449 N.E.2d 686 (1983), rev’d sub nom., Common­
wealth v. Bourgeois, 391 Mass. 869, 465 N.E.2d 
1180 (1984) .................................................. 22

Commonwealth v. Martin, 461 Pa. 289, 336 A.2d
290 (1975) ........................ ................................  16

Commonwealth v. Soares, 377 Mass. 461, 387
N.E,2d 499, cert, denied, 444 U.S. 881 (1979) . 20, 22

Connecticut v. Teal, 457 U.S. 440 (1982) .........  14
Davis v. Georgia, 429 U.S. 122 (1976) (per curiam) . 10
Duncan v. Louisiana, 391 U.S. 145 (1968) ___4, 7,8
Ex parte Virginia, 100 U.S. 339 (1880)...........  12
Gibson v. Mississippi, 162 U.S. 565 (1896)___ 12
Hernandez v. Texas, 347 U.S. 475 (1954).........  12
Hoyt v. Florida, 368 U.S. 57 (1961) ................. 4, 8
Jones v. Georgia, 389 U.S. 24 (1967) ................. 14
Lane v. Wilson, 307 U.S. 268 (1939)  ...........  11
McCray v. Abrams, 750 F.2d 1113 (2d Cir. 1984), 

petition for cert, filed, No. 84-1426 (March 4,
1985) .................................................. .......... 10,16,20

McCray v. New York, 461 U.S. 961 (1983)___ 15,21
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) .............................................................. 6
Mt. Healthy City School District Board of Educa­

tion v. Doyle, 429 U.S. 274 (1977) ...............  5, 24
People v. Allen, 23 Cal. 3d 286, 590 P.2d 30 (1979) . 21
People v. Fuller, 136 Cal. App. 3d 403, 186 Cal.

Rptr. 283 (1982) 22



IV

People v. Hall, 35 Cal. 3d 161, 672 P.2d 854 (1983) . 21, 22
People v. McCray, 57 N.Y.2d 542, 443 N.E.2d 915

(1982), cert, denied, 461 U.S. 961 (1983) . . . .  20
People v. Mack, 27 Cal. 3d 145, 611 P.2d 454

(1980) .................................................................  21
People v. Payne, 106 111. App. 3d 1034, 436 N.E.

2d 1046 (1982), rev’d, 99 111. 2d 135, 457 N.E.2d 
1202 (1983), cert, denied, 105 S. Ct. 447 (1984) .. 20

People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 
739 (1981), overruled by People v. McCray, 57 
N.Y.2d 542, 443 N.E.2d 915 (1982), cert, denied,
461 U.S. 961 (1983) .......................................... 20

People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748
(1978) ...................................    passim

Peters v. Kiff, 407 U.S. 493 (1972) ................. 3, 10, 12
Reddick v. Commonwealth, 381 Mass. 398, 409

N.E.2d 764 (1980) ...........................................  21
Smith v. Texas, 311 U.S. 128 (1940) .................  12
State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct.

App. 1980) ..........................  . . . . 2 0 , 2 3
State v. Davis, 99 N.M. 522, 660 P.2d 612 (Ct. App.

1983)   23
State v. Gilmore, 199 N.J. Super. 389, 489 A.2d

1175 (Super. Ct. App. Div. 1985) .................  20
State v. Neil, 457 So. 2d 481 (Fla. 1984) .........  20
Strauder v. West Virginia, 100 U.S. 303 (1880) ..

....................................... ................................  3, 12, 17
Swain v. Alabama, 380 U.S. 202 (1965) ......... passim
Taylor v. Louisiana, 419 U.S. 522 (1975) .........  4, 8



V

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) . 9,12
United States v. Leslie, 759 F.2d 366, reh’g en banc

granted, 759 F.2d 366 (5th Cir. 1985) .........  20
Wayte v. United States, 105 S. Ct. 1524 (1985) .. 24
Whitus v. Georgia, 385 U.S. 545 (1967) . . . . . . .  14
Williams v. Florida, 399 U.S. 78 (1970) ...........  8
Witherspoon v. Illinois, 391 U.S. 510 (1968) . . .  9

Rule
Supreme Court Rule 36.2 .................................... 2



I n  T h e

Supreme Coutt of tfje Slnitefc States!
October T erm, 1984

No. 8 4 - 6  2 6  3

JAMES KIRKLAND BATSON,
Petitioner,

v.

COMMONWEALTH OF KENTUCKY,
Respondent.

On Writ Of Certiorari To 
The Supreme Court Of Kentucky

BRIEF FOR THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW 

AS AMICUS CURIAE

STATEMENT OF INTEREST OF 
AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963, at the request of the President 
of the United States, to involve private attorneys in the 
national effort to assure the civil rights of all Americans.



-2 -

During the past 22 years, the Lawyers’ Committee and 
its local affiliates have enlisted the services of thousands 
of members of the private bar in addressing the legal 
problems of minorities and the poor. The Committee’s 
membership today includes past presidents of the 
American Bar Association, a number of law school deans, 
and many of the nation’s leading lawyers. The importance 
of this case to the principle of equal justice under law, 
and the widespread perception of minority group members 
that prosecutors can exercise peremptory challenges in 
a discriminatory manner, have prompted the Lawyers’ 
Committee to file this brief amicus curiae in support of 
petitioner. The parties have consented to the filing of this 
brief, which is therefore submitted pursuant to Supreme 
Court Rule 36.2.

STATEMENT

Petitioner James Kirkland Batson, a black man, was con­
victed by a Kentucky jury of second degree burglary and 
receipt of stolen property, based upon his alleged theft 
of two purses (J.A. 5). He was sentenced to 20 years’ 
imprisonment (J.A. 5).

Although the venire in petitioner’s case included four 
blacks, the Commonwealth used four of its six peremptory 
challenges to exclude each of them (J.A. 2-3). Petitioner 
timely objected to this deployment of the Commonwealth’s 
peremptory challenges, moved to discharge the jury panel, 
and later objected to the swearing of the jury (J.A. 2-4). 
The trial court overruled petitioner’s objections, refused 
to inquire into the Commonwealth’s reasons for striking 
all of the black veniremen, and refused even to determine 
whether the record showed a strong likelihood that the



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Commonwealth had stricken the black veniremen solely 
because of their race (J.A. 3).

The Supreme Court of Kentucky affirmed petitioner’s 
conviction (J.A. 9). The Supreme Court rejected peti­
tioner’s constitutional claim, based on the Commonwealth’s 
exercise of its peremptory challenges, on the ground that 
petitioner had not satisfied the standard established by 
this Court in Swain v. Alabama, 380 U.S. 202 (1965) 
(J.A. 8).

INTRODUCTION AND SUMMARY 
OF ARGUMENT

For more than 100 years, this Court has consistently 
held that the Equal Protection Clause of the Fourteenth 
Amendment precludes the exclusion of blacks, based solely 
on their race, from service on grand and petit juries. See, 
e.g., Peters v. Kiff, 407 U.S. 493 (1972); Alexander v. 
Louisiana, 405 U.S. 625 (1972); Avery v. Georgia, 345 U.S. 
559 (1953); Strauder v. West Virginia, 100 U.S. 303 (1880).

In Swain v. Alabama, 380 U.S. 202 (1965), this Court 
noted the “unquestioned” soundness of that principle {id. 
at 205) and reaffirmed that “ ‘[j jurymen should be selected 
as individuals, on the basis of individual qualifications, and 
not as members of a race’ ” (id. at 204, quoting Cassell 
v. Texas, 339 U.S. 282, 286 (1950)). Thus, as the Court 
held in Swain, “a State’s purposeful or deliberate denial 
to Negroes on account of race of participation as jurors 
in the administration of justice violates the Equal Pro­
tection Clause” (380 U.S. at 203-04). Based, however, on



-4-

the perceived need to balance an individual’s Fourteenth 
Amendment rights against the state’s traditional discre­
tion in exercising peremptory challenges, the Court also 
held that a criminal defendant could not establish a viola­
tion of the Fourteenth Amendment by proving that the 
state had practiced such discrimination in his individual 
case (id. at 221-22). In Swain, the Court held that a defen­
dant could establish a violation of the Equal Protection 
Clause in this context only by proving that the state had 
a longstanding, systematic practice of deploying peremp­
tory challenges to exclude members of particular racial 
groups from jury service (id. at 223-24).

Insofar as it creates a virtually irrebuttable presump­
tion in favor of the state’s exercise of peremptory 
challenges and limits the kind of proof which may be ad­
duced to establish a constitutional violation in this con­
text, the Court’s holding in Swain is doctrinally unsound 
and must be overruled for at least three separate reasons. 
First, Swain is inconsistent with this Court’s more re­
cent decisions under the Sixth Amendment. In 1968, three 
years after Swain was decided, this Court held for the 
first time that the Sixth Amendment requirement of trial 
by an impartial jury applies to state prosecutions. Dun­
can v. Louisiana, 391 U.S. 145 (1968). Under the Sixth 
Amendment, as the Court later held in Taylor v. Loui­
siana, 419 U.S. 522, 527 (1975), a criminal defendant is 
entitled to be tried by “a jury drawn from a fair cross 
section of the community.” To withstand Sixth Amend­
ment scrutiny, as the Taylor Court observed, the exclu­
sion of a distinctive class from that cross-section must be 
justified by “weightier reasons” than the “merely rational 
grounds” sufficient to satisfy the equal protection stand­
ard (id. at 534). Compare Taylor v. Louisiana, 419 U.S. 
522 (1975), with Hoyt v. Florida, 368 U.S. 57 (1961). Thus,



—5—

even if the Swain Court was correct in holding that the 
use of peremptory challenges to practice racial discrimina­
tion in an individual case does not violate the Equal Pro­
tection Clause of the Fourteenth Amendment, the same 
conduct clearly deprives a criminal defendant of his Sixth 
Amendment right to be tried by a jury drawn from a fair 
cross-section of the community.

Second, the equal protection analysis articulated in 
Swain is doctrinally unsound and inconsistent with this 
Court’s more recent cases under the Fourteenth Amend­
ment. The distinction posited in Swam—between sys­
tematic and individual discrimination—is analytically un­
sound because it confuses the separate and distinct ques­
tions of what constitutes a constitutional violation and how 
such a violation may be proved. Proof that discrimination 
has occurred in previous cases may indeed be probative 
of present discrimination, but the existence of present 
discrimination cannot be determined by reference only to 
historical practice. Because the right to be tried by an 
impartial jury is a personal right, a defendant is entitled 
to constitutional protection of that right even if the state 
has not previously denied it to others. See, e.g., Alexander 
v. Louisiana, 405 U.S. 625, 628-29 (1972).

Finally, the Swain Court erred in finding that respect 
for the historical nature of peremptory challenges pre­
cluded any inquiry into the racially discriminatory exer­
cise of those challenges in an individual case. The balance 
struck by the Court in Swain, which elevates the goal 
of preserving the absolute discretion traditionally em­
bodied in the peremptory challenge (without possibility 
of even the most minor alteration), in preference to the 
protection of individual constitutional rights, conflicts with 
the Court’s more recent decisions in analogous areas in­
volving similarly competing values. See Mt. Healthy City



- 6-

School District Board of Education v. Doyle, 429 U.S. 274
(1977); McDonnell Douglas Corp. v. Green, 411 U.S. 792 
(1973). A balance more consistent with this Court’s re­
cent cases was struck by the California Supreme Court 
in People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748 (1978). 
In Wheeler, the court held that where a defendant has 
established a prima facie case of discrimination in the use 
of peremptory challenges in an individual case, the state 
must show that the challenges were based on grounds 
reasonably relevant to the particular case, rather than on 
group bias. Only if the state’s explanation is pretextual 
will the trial court dismiss the jurors already selected and 
begin the process anew. The Wheeler rule gives adequate 
protection both to the prosecutor’s discretion and to indi­
vidual constitutional rights; it is the logical and constitu­
tionally mandated culmination of constitutional develop­
ments since Swain.



__7-

ARGUMENT

I.
THE USE OF PEREMPTORY CHALLENGES TO EX­
CLUDE MEMBERS OF A RACIAL GROUP FROM JURY 
SERVICE IN AN INDIVIDUAL CASE VIOLATES BOTH 
THE SIXTH AND FOURTEENTH AMENDMENTS.

In the 20 years since the Court decided Swain v. 
Alabama, 380 U.S. 202 (1965), the Court has consistent­
ly held that the Sixth Amendment applies to state as well 
as federal prosecutions. Thus, a state criminal defendant 
is constitutionally guaranteed the right to trial by an im­
partial jury of his peers drawn from a fair cross-section 
of the community. The use of peremptory challenges to 
exclude an identifiable class from jury service irrecon­
cilably conflicts with that individual right. In addition, the 
law relating to racial discrimination has developed great­
ly in the past twenty years. Since Swain, this Court has 
consistently held that the Equal Protection Clause of the 
Fourteenth Amendment prohibits race-based discrimina­
tion against individuals; an individual’s entitlement to 
relief cannot depend upon whether he stands first or last 
in a line of victims. Developments in both of these areas 
have eviscerated the doctrinal underpinnings of the rule 
announced in Swain.

A. The Use of Peremptory Challenges to Exclude Members 
of a Racial Group from Jury Service Violates the Sixth 
Amendment.

In 1968, three years after the Court’s decision in Swain, 
the Court held that the Sixth Amendment requirement 
of trial by an impartial jury applies to state criminal pros­
ecutions. Duncan v. Louisiana, 391 U.S. 145 (1968). The



- 8-

Sixth Amendment right to trial by an impartial jury “con­
templates a jury drawn from a fair cross section of the 
community.” Taylor v. Louisiana, 419 U.S. 522, 527 
(1975). See Williams v. Florida, 399 U.S. 78, 100 (1970). 
In Taylor v. Louisiana, this Court recognized that the 
“fair-cross-section requirement [is not only] fundamental 
to the jury trial guaranteed by the Sixth Amendment,” 
but mandated by the basic purpose of the jury, which is 
“to guard against the exercise of arbitrary power—to 
make available the commonsense judgment of the com­
munity as a hedge against the overzealous or mistaken 
prosecutor and in preference to the professional or 
perhaps overconditioned or biased response of a judge” 
(419 U.S. at 530). See also Duncan v. Louisiana, 391 U.S. 
145, 155-56 (1968).

The Court in Taylor also recognized that the Sixth 
Amendment right to a jury drawn from a representative 
cross-section of the community imposes restrictions on the 
exclusion of members of identifiable groups from jury par­
ticipation, which are more stringent than those applicable 
under the equal protection standard articulated in Swain. 
Thus, the Court invalidated on Sixth Amendment grounds 
the conviction of a male defendant who had been tried 
by a jury selected from a venire from which most women 
had been excluded by statute. Just 14 years earlier, in 
Hoyt v. Florida, 368 U.S. 57 (1961), this Court had upheld 
a virtually identical statutory provision against an attack 
brought on due process and equal protection grounds, 
although, as Justice Rehnquist noted in Taylor, the earlier 
case presented “circumstances which were much more 
suggestive of possible bias and prejudice” (419 U.S. at 
539 (Rehnquist, J., dissenting)). The Louisiana statute 
violated the Sixth Amendment because, as the Taylor 
Court explained, “[restricting jury service to only special 
groups or excluding identifiable segments playing major



9 -

roles in the community cannot be squared with the 
constitutional concept of jury trial” (419 U.S. at 530). The 
central principle was stated, albeit in a different context, 
almost 40 years ago: “Jury competence is an individual 
rather than a group or class matter. That fact lies at the 
very heart of the jury system. To disregard it is to open 
the door to class discriminations which are abhorrent to 
the democratic ideals of trial by jury.” Thiel v. Southern 
Pacific Co., 328 U.S. 217, 220 (1946). See also Carter v. 
Jury Commission, 396 U.S. 320, 330 (1970) (exclusions 
based on class or race “contravene!. ] the very idea of a 
jury—‘a body truly representative of the community’ ”).

The Court has applied the more exacting standard of 
the Sixth Amendment, not only in the context of venire 
composition, but also with respect to actions affecting the 
jury selection process where the venire itself is deemed 
acceptable. In Ballew v. Georgia, 435 U.S. 223 (1978), the 
Court held that the Sixth Amendment prohibits the use 
of a five-person petit jury in a criminal misdemeanor trial. 
There was no suggestion in Ballew of an improper venire; 
nor was there any suggestion that the venire did not con­
tain a fair cross-section of the community.1 Similarly, in 
Witherspoon v. Illinois, 391 U.S. 510, 518 (1968), the 
Court held that a petit jury selected pursuant to a state 
law allowing the disqualification of veniremen opposed to 
the death penalty lacked “the impartiality to which the

1 Although there was no majority opinion, six Justices found the 
jury system defective. Justice Blackmun, joined by Justice Stevens, 
noted that the size of the jury hindered achievement of the goal 
of the jury to “truly represent! 1 their communities” (435 U.S. at 
239). Justice White concurred on the ground that a jury of less 
than six failed to satisfy the “fair cross-section requirement of the 
Sixth and Fourteenth Amendments” (435 U.S. at 245). Justice 
Powell, joined by the Chief Justice and Justice Rehnquist, noted 
that the jury size raised “grave questions of fairness” (435 U.S. 
at 245).



- 10-

petitioner was entitled under the Sixth and Fourteenth 
Amendments.” See also Adams v. Texas, 448 U.S. 38 
(1980); Davis v. Georgia, 429 U.S. 122 (1976) (per curiam).

If the rights secured by the Constitution are to be ef­
fectively safeguarded, the exacting standard established 
by the Sixth Amendment must be applied to every stage 
of jury selection. Even in the face of this Court’s deci­
sion in Swain, several state and federal courts have now 
concluded that the peremptory challenge cannot be used 
categorically to exclude members of racial groups from 
service as jurors in an individual case because that prac­
tice “restrict^] unreasonably the possibility that the petit 
jury will comprise a fair cross section of the community.” 
McCray v. Abrams, 750 F.2d 1113, 1129 (2d Cir. 1984), 
petition for cert, filed, No. 84-1426 (March 4, 1985). See 
also pages 18-20, infra. Indeed, the constitutional guar­
antee of an impartial jury, chosen from a fair cross- 
section of the community, would be illusory if the state 
were given a free hand to use peremptory challenges to 
bar blacks at the threshold to the jury box, and thus 
achieve the very same discrimination prohibited at all 
earlier stages of the jury selection process. Invidious 
discrimination is no less unconstitutional because it occurs 
at the eleventh hour. Regardless of when it occurs, the 
result is the same: a jury chosen in a manner which 
precludes even the possibility that it will reflect a fair 
cross-section of the community. This the Constitution does 
not permit, both because of the appearance of bias and 
because of the increased risk of actual bias in the deci­
sion of a particular case. See Peters v. K iff 407 U.S. 493, 
502 (1972).2

2 Many social scientists have documented both the tendency of 
prosecutors to exclude blacks from juries and the pro-prosecution 
effect such exclusions may have on a verdict, especially where the 

(Footnote continued on following page)



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The deployment of peremptory challenges to practice 
racial discrimination in a particular case cannot be 
tolerated because it violates the individual defendant’s 
right to be free from official discrimination. The peremp­
tory challenge cannot be deemed sacrosanct because the 
Sixth Amendment, like the Fifteenth, prohibits “sophis­
ticated as well as simple-minded modes of discrimination.” 
Lane v. Wilson, 307 U.S. 268, 275 (1939) (Frankfurter, J.).

B. The Use of Peremptory Challenges to Exclude Members 
of a Racial Group from Jury Service Violates the Equal 
Protection Clause of the Fourteenth Amendment.

Although the Swain Court reaffirmed the principle that 
racial discrimination can play no role in jury selection (380 
U.S. at 204-05), the Court’s holding—that an equal pro­
tection violation may be proved only through evidence of a 
long-standing and systematic pattern of discrimination- 
marks the case as an aberration in an otherwise un­
broken line of jury selection cases that stretches back for 
more than 100 years of our history. In addition, the Four­
teenth Amendment analysis articulated in Swain conflicts 
with this Court’s more recent decisions under the Four­
teenth Amendment. By focusing entirely on proof of 
systematic discrimination, the Court in Swain lost sight 
of the central meaning of the Equal Protection Clause: that 
every defendant is individually entitled “to require that 
the State not deliberately and systematically deny to 
members of his race the right to participate as jurors in

2 continued
government’s evidence is relatively weak and the defendant is 
black. Based in part upon such empirical evidence, many legal com­
mentators have taken the position that the Swain rule affords in­
adequate protection to individual constitutional rights, and they 
have therefore advocated adoption of the Wheeler rule. The most 
important of those commentaries are catalogued in Appendix A, 
infra.



-1 2

the administration of justice.” Alexander v. Louisiana, 
405 U.S. 625, 628-29 (1972), citing Ex parte Virginia, 100 
U.S. 339 (1880), and Gibson v. Mississippi, 162 U.S. 565 
(1896). See also Castaneda v. Partida, 430 U.S. 482 (1977).

The cross-section of the community principle embodied 
in the Sixth Amendment was first articulated by this 
Court as a component of equal protection. In a long line 
of cases, this Court has relied on the cross-section prin­
ciple in holding that the deliberate exclusion of black 
potential jurors because of their race, in whatever stage 
of jury selection, is a violation of equal protection. In 
Strauder v. West Virginia, 100 U.S. 303, 309 (1880), this 
Court struck down a state statute which barred blacks 
from jury service, noting that “prejudices often exist 
against particular classes in the community, which sway 
the judgment of jurors, and which, therefore, operate in 
some cases to deny to persons of those classes the full 
. . . protection which others enjoy.” Thus, the protection 
of a black defendant “against race or color prejudice” is 
an individual constitutional right, which is violated by 
“compelling [him] to submit to a trial . . .  by a jury drawn 
from a panel from which the State has expressly excluded 
every man of his race, because of color alone, however 
well qualified in other respects” (100 U.S. at 309). See 
also Alexander v. Louisiana, 405 U.S. 625, 630-32 (1972); 
Hernandez v. Texas, 347 U.S. 475, 478-79 (1954); Avery 
v. Georgia, 345 U.S. 559, 561-62 (1953); Ballard v. United 
States, 329 U.S. 187, 195 (1946); Thiel v. Southern Pacific 
Co., 328 U.S. 217, 221-22 (1946); Smith v. Texas, 311 U.S. 
128, 130-31 (1940).

More recently, in Peters v. Kiff, 407 U.S. 493 (1972), 
the Court reversed the conviction of a white defendant 
because blacks had been excluded from jury service. As 
Justice Marshall explained in a plurality opinion in which 
he was joined by Justice Douglas and Justice Stewart,



- 1 3 -

“the exclusion from jury service of a substantial and iden­
tifiable class of citizens has a potential impact that is too 
subtle and too pervasive to admit of confinement to par­
ticular issues or particular cases” {id. at 503). Similarly, 
“[w]hen any large and identifiable segment of the com­
munity is excluded from jury service, the effect is to 
remove from the jury room qualities of human nature and 
varieties of human experience, the range of which is un­
known and perhaps unknowable” {id.). The exclusion of 
such a range of human nature and experience “may have 
unsuspected importance in any case that may be pre­
sented” {id. at 504). See also Apodaca v. Oregon, 406 U.S. 
404, 410-11 (1972).

The Court’s decision in Swain is aberrational insofar as 
it holds that an equal protection violation may be estab­
lished in a particular case only through evidence of an 
historical pattern or practice of discrimination in jury 
selection. The Court reached this conclusion only after 
declining to “hold that the striking of Negroes in a par­
ticular case is a denial of equal protection of the laws” 
(380 U.S. at 221). The Court refused to subject a prose­
cutor’s use of peremptory challenges to equal protection 
scrutiny because the Court believed that doing so “would 
entail a radical change in the nature and operation of the 
challenge” {id. at 221-22). Because the Swain Court felt 
compelled to preserve the common law peremptory chal­
lenge without any alteration, however minor, the Court 
effectively sacrificed the defendant’s individual right to 
equal protection in the jury selection process, and there­
fore put in place an unprecedented and unworkable rule 
of equal protection analysis. Where the protection of in­
dividual constitutional rights required accommodation, the 
Court instead installed the peremptory challenge in a 
preferred position. For that reason alone, this prong of 
the Swain holding must be overruled.



- 1 4 -

In the 20 years since Swain was decided, experience 
has demonstrated that its holding is both doctrinally un­
sound and practically unworkable. Swain’s equal protec­
tion analysis, which requires proof of an historical pat­
tern of discrimination to establish a violation of equal pro­
tection, has been eroded in subsequent decisions of this 
Court. In Alexander v. Louisiana, 405 U.S. 625 (1972), 
for example, this Court found an equal protection viola­
tion in the selection of a particular all-white grand jury, 
based on: (1) statistical evidence that the percentage of 
blacks eligible to participate in that grand jury decreased 
in each succeeding phase of the selection process, and (2) 
evidence that the state listed each potential grand juror’s 
race on his identification form. The Court concluded that 
the selection of an all-white grand jury, together with the 
incorporation in the jury selection process of a mechanism 
susceptible to discriminatory application, sufficed to es­
tablish a prima facie equal protection violation, which the 
state had not rebutted (id. at 630-32). See also Whitus 
v. Georgia, 385 U.S. 545 (1967); Jones v. Georgia, 389 U.S. 
24 (1967). Notably, the Court did not consider whether 
this jury selection practice was part of an historic or long­
term pattern or practice of discrimination, nor did the 
Court consider any long-term effect which any such prac­
tice may have had on the representation of blacks on 
grand juries in Louisiana.

No less than the grand jury selection process challenged 
in Alexander, the prosecutor’s use of peremptory chal­
lenges provides “an easy opportunity for racial discrim­
ination” (405 U.S. at 630). Where individual rights have 
been abridged in a particular case, correction of that 
wrong logically cannot be made to depend upon proof that 
the state has previously violated the constitutional rights 
of others. Cf Connecticut v. Teal, 457 U.S. 440, 445 (1982) 
(“an employer [cannot] discriminate against some employees



15

on the basis of race or sex merely because he favorably 
treats other members of the employees’ group”). While 
evidence of an historical pattern or practice of discrimina­
tion may provide relevant and useful proof of discrimina­
tion in a particular case, the lack of such evidence can­
not establish the absence of a constitutional violation in 
a particular case. Logically, other competent evidence may 
also be used to prove discrimination. For example, a 
prosecutor may admit that his purpose was to exclude 
blacks from the jury. Alternatively, the prosecutor may 
offer an explanation which cannot withstand the most 
minimal scrutiny. He may say, for instance, that his deci­
sion to exclude all black veniremen was based on their 
responses to particularly significant questions, while the 
record reflects that he never bothered to ask those same 
questions of the white veniremen whom he did not chal­
lenge. Such evidence is no less (and probably more) pro­
bative of discrimination in a particular case than is evi­
dence derived by inference from a prior pattern or prac­
tice.

Swain’s stringent limitation on the type of proof accept­
able in demonstrating racial discrimination in this con­
text has erected a practically impenetrable barrier to the 
protection of this important right. Efforts to prove a pat­
tern of discrimination are necessarily limited by the ex­
tent to which relevant facts, such as the race of challenged 
jurors, have been made a part of the record in prior cases. 
As Justice Marshall has observed, “[i]t is doubtful that 
many jurisdictions maintain comprehensive records of per­
emptory challenges, let alone information regarding the 
race of those individuals challenged.” McCray v. New 
York, 461 U.S. 961, 965-66 n.4 (1983) (Marshall, J., dissent­
ing from denial of certiorari). In most cases, therefore, 
defense counsel will bear the burden of developing a 
record concerning the prosecutor’s use of peremptory



- 1 6 -

challenges, often at the price of annoying the trial judge, 
who will be understandably anxious to commence the trial. 
There may be little incentive for defense counsel to make 
such a record in an individual case, however, because that 
record will not assist the defendant on trial, but only some 
future defendant, to whom defense counsel owes no duty 
of loyalty. Indeed, given defense counsel’s duty to the 
defendant on trial, it might well be unethical for him to 
risk incurring the disapproval of the trial judge by per­
sisting in an unwanted attempt to develop the record. 
Even in those cases in which evidence, albeit often anec­
dotal, has been presented, courts have almost uniformly 
rejected challenges brought under Swain. See McCray v. 
Abrams, 750 F.2d 1113, 1120 & n.2 (2d Cir. 1984), peti­
tion for cert, filed, No. 84-1426 (March 4, 1985). In sum, 
the requirements of proof established by Swain, being vir­
tually unattainable in practice, have eviscerated the consti­
tutional right identified in that case.3

By turning back blacks at the threshold of the jury box, 
the state discriminates not only against black defendants, 
but also against the black veniremen who are inexplicably 
barred from fully exercising the rights and duties of 
citizenship. To excuse blacks, one by one, from the venire, 
until the only remaining faces are white, with no obvious 
explanation but for the color of their faces, not only dis-

3 As a practical matter, proof of a constitutional violation has been 
foreclosed by the Court’s holding that only proof of an historical 
practice of similar violations can suffice to overcome the presump­
tion that a prosecutor has used his peremptory challenges for a 
proper purpose. See Commonwealth v. Martin, 461 Pa. 289, 299, 
336 A.2d 290, 295 (1975) (Nix, J., dissenting) (“Is justice to sit 
supinely by and be flaunted in case after case before a remedy 
is available? Is justice only obtainable after repeated injustices are 
demonstrated? Is there any justification within the traditions of 
the Anglo-Saxon legal philosophy that permits the use of a 
presumption to hide the existence of an obvious fact?”).



- 1 7 -

credits the judicial process, but puts “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, 308 (1880). The imposition 
of that badge of slavery, within the four walls of a court 
of law, cannot be tolerated in a society which stands upon 
the principle that justice may not be rationed according 
to wealth, race, color or creed.

II.
STATE AND FEDERAL COURTS HAVE DEVELOPED A 
WORKABLE ALTERNATIVE TO SWAIN WHICH PRO­
TECTS THE CONSTITUTIONAL RIGHTS OF CRIMINAL 
DEFENDANTS AND PRESERVES THE DISCRETION OF 
PROSECUTORS IN EXERCISING PEREMPTORY CHAL­
LENGES.

In Swain, the Court sought to preserve “the per­
emptory system and the function it serves in a pluralistic 
society in connection with the institution of the jury trial” 
(380 U.S. at 222). Recognizing that racial discrimination 
in jury selection violates individual constitutional rights, 
the Court in Swain nonetheless declined to require any 
inquiry into the prosecutor’s reasons for exercising his 
peremptory challenges because the Court feared that such 
a rule would emasculate the peremptory challenge. As a 
result, the Swain Court adopted an equal protection analy­
sis which has proven ineffective and unworkable as well 
as doctrinally unsound.

Recognizing both the failure of the Swain rule and the 
need for an alternative that would protect both the con­
stitutional rights of individual defendants and the con­
tinued efficacy of the peremptory challenge, several state 
and federal courts have reexamined Swain in light of



- 1 8 -

more recent Sixth Amendment and equal protection cases. 
In a series of decisions, these courts have adopted a rule 
which allows the ordinary exercise of peremptory chal­
lenges, while also preserving the right of a criminal defen­
dant to challenge the prosecutor’s discriminatory use of 
peremptory challenges in an individual case. The rule ar­
ticulated by those courts is essential to the protection of 
individual constitutional rights, does no damage to the use 
of peremptory challenges, and warrants adoption by this 
Court.

A. State and Federal Courts Have Developed A Rule Which 
More Effectively Balances The Competing Concerns 
Identified In Swain.

The appellate courts of five states and two federal cir­
cuits have rejected Swain, in favor of an alternative rule 
which protects the right of a criminal defendant to a 
representative jury, while leaving virtually untouched the 
traditional discretion of peremptory challenges. The 
California Supreme Court first proposed this alternative 
rule in People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748
(1978), to resolve the tension between these competing 
values in a manner more exacting than that which this 
Court embraced in Swain. Subsequent application of the 
Wheeler rule has confirmed its effectiveness as a workable 
rule to protect the competing interests involved.

The Wheeler court concluded that the racially biased use 
of peremptory challenges violated the defendant’s state 
law right to a representative jury. In creating a mech­
anism to protect that right, the court first adopted the 
precept in Swain that the prosecutor is entitled to the 
presumption that he has exercised his peremptory chal­
lenges on constitutionally permissible grounds. The court 
then held, however, that if a defendant believes that the 
state has used its peremptory challenges to strike jurors



19

because of their group membership, he should interpose 
an immediate objection. To substantiate that objection, the 
defendant must then prove a prima facie case of dis­
crimination by making a complete record of the proceed­
ings, establishing the exclusion of a cognizable group, and 
showing from the overall circumstances that there was 
“a strong likelihood” that the stricken veniremen were 
excluded on the basis of group association rather than per­
sonal characteristics (22 Cal. 3d at 280-81, 583 P.2d at 764 
(emphasis added)).4

Only after the trial court has determined the sufficien­
cy of the defendant's prima facie case does the burden 
shift to the state to show the existence of valid reasons 
for the exercise of its challenges. Such justification need 
not rise to the level of an objection for cause, of course, 
and may be based on the totality of the circumstances 
rather than single, specific traits. Only if the court finds 
that the prosecution has failed to satisfy this burden of 
justification will the court dismiss the jury so selected. 
In all other cases, the jury will be impaneled and the case 
tried without delay (22 Cal. 3d at 281-82, 583 P.2d at 765).

The Wheeler rule strikes a reasonable balance between 
the prosecutor’s interest in the unbridled use of peremp­
tory challenges and the defendant’s constitutional right 
to a jury selected from a fair cross-section of the com­
munity. By requiring the defendant to make both a con-

4 Without exhausting the ways in which such a showing may be 
made, the Wheeler court described types of evidence which may 
support a showing of the discriminatory use of peremptories. The 
objecting party may show that all or most of a particular group 
has been challenged; that the challenged jurors share only their 
group affiliation, while differing in all other respects; that the party 
has failed to engage in any voir dire before exercising his 
challenges; and that the challenged jurors share a group affilia­
tion with the defendant, and differ from the victim (22 Cal. 3d 
at 280-81, 583 P.2d at 764).



- 20-

temporaneous objection to the use of peremptory chal­
lenges and a showing of a strong likelihood of discrimina­
tion, the rule preserves the prosecutor’s broad discretion 
in exercising peremptory challenges in all but the most 
extraordinary case. Recognizing the effectiveness of the 
Wheeler rule, the courts of Massachusetts, New Mexico, 
Florida, and New Jersey have recently adopted it. Com­
monwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert, 
denied, 444 U.S. 881 (1979); State v. Crespin, 94 N.M. 486, 
612 P.2d 716 (Ct. App. 1980); State v. Neil, 457 So. 2d 
481 (Fla. 1984); State v. Gilmore, 199 N.J. Super. 389, 489
A. 2d 1175 (Super. Ct. App. Div. 1985).5 In addition, two 
federal courts of appeals have also adopted the Wheeler 
rule. The Second Circuit adopted the rule under the Sixth 
Amendment in McCray v. Abrams, 750 F.2d 1113 (2d Cir.
1984) , petition for cert, filed, No. 84-1426 (March 4, 1985), 
while the Fifth Circuit, in United States v. Leslie, 759 
F.2d 366, reh’g en banc granted, 759 F.2d 366 (5th Cir.
1985) , recently adopted the rule pursuant to its super­
visory power over federal prosecutions.

B. The Wheeler Rule Is Necessary To Ensure The Constitu­
tional Exercise of Peremptory Challenges.

The Wheeler rule protects the right of an individual 
defendant to be free from racial discrimination in the 
selection of a trial jury, while also preserving intact the 
efficacy of the peremptory challenge. As Justice Marshall

5 The intermediate appellate courts of New York and Illinois also 
adopted the Wheeler rule, but the courts of last resort of those 
two states subsequently reaffirmed the Swain rule, both largely 
on the basis of stare decisis. People v. Payne, 106 111. App. 3d 
1034, 436 N.E.2d 1046 (1982), rev’d, 99 111. 2d 135, 457 N.E.2d 1202 
(1983), cert, denied, 105 S. Ct. 447 (1984); People v. Thompson, 
79 A.D.2d 87, 435 N.Y.S.2d 739 (1981), overruled by People v. 
McCray, 57 N.Y.2d 542, 443 N.E.2d 915 (1982), cert, denied, 461 
U.S. 961 (1983).



- 21-

has observed, the Wheeler procedure “appears to be quite 
workable.” McCray v. New York, 461 U.S. 961, 969 (1983) 
(Marshall, J., dissenting from denial of certiorari). The ac­
curacy of that observation is confirmed by the experience 
of those states that have adopted the Wh,eeler rule.

In the seven years since the Wheeler rule was adopted, 
the California Supreme Court has been required to decide 
only one case tried since the decision in Wheeler, involv­
ing the use of peremptory challenges to exclude qualified 
citizens from juries because of group bias.6 In that case, 
People v. Hall, 35 Cal. 3d 161, 168-69, 672 P.2d 854, 858-59 
(1983), the California Supreme Court reversed a criminal 
conviction because the trial judge had held that a prose­
cutor’s use of peremptory challenges could be deemed un­
constitutional only in the rare case in which the prose­
cutor actually admitted that he had practiced discrimina­
tion during jury selection. In Hall, the California Attorney 
General criticized the Wheeler rule as unworkable and called 
for its reversal.7 The California Supreme Court noted, 
however, that the state’s contention was without foun­
dation in empirical evidence, was based on an improper 
perception of the Wheeler rule, and was belied by the 
dearth of reported cases raising any issue under Wheeler

6 In two earlier decisions, the California Supreme Court refused 
to apply the Wheeler rule to juries empaneled before the Supreme 
Court’s decision in that case. See People v. Mack, 27 Cal. 3d 145, 
611 P.2d 454 (1980); People v. Allen, 23 Cal. 3d 286, 590 P.2d 30 
(1979). Accord Reddick v. Commonwealth, 381 Mass. 398, 409 
N.E.2d 764 (1980) (Massachusetts rule applied only prospectively 
and to cases pending on direct appeal at the time Soares was 
decided).
7 The California Attorney General claimed that the Wheeler rule 
prohibited the use of peremptories to strike jurors based on 
“hunches.” The California Supreme Court disagreed, observing 
that a prosecutor may still follow his hunches unless his “hunches” 
lead only to the exclusion of jurors of a single group affiliation, 
and even then the prosecution is free to rebut the inference of 
discrimination (35 Cal. 3d at 169-71, 672 P.2d at 859-60).



-22

in the intervening years (35 Cal. 3d at 169-70, 672 P.2d 
at 859).

Since its decision in Hall, the California Supreme Court 
has not had occasion to revisit the Wheeler question, 
which indicates that the rule has proved workable in prac­
tice. Even more compelling is the fact, as the California 
Supreme Court noted in Hall, that the issue had been 
raised in only three reported decisions of the California 
Appellate Court in the five years between the decisions 
in Wheeler and Hall (35 Cal. 3d at 170 n.12, 672 P.2d at 
859 n.12). The issue has been raised, of course, in several 
California Appellate Court cases since the California 
Supreme Court’s decision in Hall. In all the years since 
Wheeler was decided, however, the California Appellate 
Court has reversed only one criminal conviction because 
of a trial court’s failure to comply with Wheeler. See 
People v. Fuller, 136 Cal. App. 3d 403, 186 Cal. Rptr. 
283 (1982).

The experience in Massachusetts has been similar. Al­
though the Supreme Judicial Court and the Massachusetts 
Appeals Court have both addressed the issue in a number 
of cases since Commonwealth v. Soares, 377 Mass. 461, 
387 N.E.2d 499, cert, denied, 444 U.S. 881 (1979), only 
one criminal conviction has ever been reversed because 
of prosecutorial misuse of peremptory challenges. See 
Commonwealth v. Brown, 11 Mass. App. Ct. 288, 416 
N.E.2d 218 (1981).8

8 In one additional case, which had been tried before the Supreme 
Judicial Court adopted the Wheeler rule, the Massachusetts Ap­
peals Court reversed a conviction on this ground, but the Supreme 
Judicial Court granted further review and reversed that court’s 
decision on the facts of that case. See Commonwealth v. Gagnon, 
16 Mass. App. Ct. 110, 449 N.E.2d 686 (1983), rev’d sub nom., 
Commonwealth v. Bourgeois, 391 Mass. 869, 465 N.E.2d 1180 
(1984).



-23

Since State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct. 
App. 1980), the New Mexico courts have revisited the 
issue only once, in a case in which the Appeals Court 
found no violation of the New Mexico version of the 
Wheeler rule and affirmed the defendant’s conviction. See 
State v. Davis, 99 N.M. 522, 660 P.2d 612 (Ct. App. 1983).

From this experience, one must conclude that the 
Wheeler rule is workable and that it accomplishes its pur­
pose. On the one hand, the prosecutor’s discretion in ex­
ercising peremptory challenges remains undiminished. On 
the other hand, the absence of racial discrimination in the 
trial of cases is assured prior to trial, as it should be, 
without creating unnecessary issues for resolution on ap­
peal.

The Wheeler rule has proved to be workable in prac­
tice as a result of its allocation of the burden of proof. 
Like the Swain rule, Wheeler presumes that the exercise 
of peremptory challenges in any particular case is con­
sistent with constitutional requirements. The Wheeler rule 
differs in application from Swain only if the defendant 
satisfies the trial court, based on a timely objection, that 
the pattern of peremptory challenges creates a strong 
likelihood of discriminatoiy use. Once the strong likelihood 
test is satisfied, however, the Wheeler rule assures 
enforcement of constitutional rights for each individual 
defendant so affected, rather than requiring an accumula­
tion of historical proof of racial discrimination before such 
enforcement can occur.

As the California Supreme Court found in People v. 
Hall, the Wheeler rule has not diminished the currency 
of the peremptory challenge, which retains a vital role 
in the California system of criminal justice. While the 
Wheeler rule does require a prosecutor to explain his 
peremptory challenges when a defendant satisfies the 
heavy burden of establishing a prima facie case, such a



-24-

limited incursion into the prosecutor’s absolute discre­
tion is necessary to assure protection of individual con­
stitutional rights. Unlike Swain, the Wheeler rule strikes 
the proper accommodation between these competing in­
terests.9

In analogous areas, this Court has limited the tradi­
tionally unfettered discretion of government officials in 
order to accommodate constitutional rights. For example, 
this Court has held that non-tenured public employees 
may not be discharged for constitutionally impermissible 
reasons, despite the strong tradition of the common law 
that such employees may be discharged for any reason 
or no reason at all. Compare Mt. Healthy City School 
District Board of Education v. Doyle, 429 U.S. 274, 284
(1977) , with Board of Regents v. Roth, 408 U.S. 564, 578 
(1972). Likewise, the broad discretion accorded prosecutors 
in the initiation and preparation of criminal cases, which 
this Court recently has described as “particularly ill-suited 
to judicial review,” is nonetheless subject to judicial 
review if it is “ ‘deliberately based upon an unjustifiable 
standard such as race, religion, or other arbitrary classi­
fication.’ ” Wayte v. United States, 105 S. Ct. 1524, 1531 
(1985), quoting Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978) (emphasis added).

Like the peremptory challenge, the roots of the 
employment-at-will and prosecutorial discretion doctrines 
run deep in our legal history. Nonetheless, in order to

9 Indeed, the Wheeler rule, by focusing on the case at bar, rather 
than on a prior pattern of discrimination, may benefit the prose­
cutor, who will be afforded an opportunity to explain his use of 
peremptory challenges. If he gives credible reasons for exercis­
ing his peremptory challenges to strike members of a particular 
racial group, those challenges may still be sustained, even if the 
state has previously engaged in discrimination. That possibility is 
foreclosed by Swain.



-25-

protect the constitutional rights of public employees and 
criminal defendants, this Court has held that these tra­
ditional elements of unreviewable governmental discretion 
must yield in some small way to accommodate individual 
constitutional rights. The Wheeler rule likewise imposes a 
reasonable and minimal limitation on the power of prose­
cutors to use peremptory challenges for racially discrimi­
natory reasons. This Court should adopt the Wheeler rule 
as the least intrusive method for giving effect to the Sixth 
and Fourteenth Amendment rights which are clearly 
abridged by the practice of racial discrimination in the 
use of peremptory challenges.

CONCLUSION

The judgment of the Supreme Court of Kentucky should 
be reversed and the cause remanded.

Respectfully
F red N. F ishman 
R obert H. Kapp 

Co-Chairmen 
N orman R edlich 

Trustee
W illiam L. R obinson 
N orman J. Chachkin 
LAWYERS’ COMMITTEE FOR 

CIVIL RIGHTS UNDER LAW 
Suite 400
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

submitted,
Barry Sullivan 

Counsel of Record 
R ichard P. Steinken 
Michael T. Brody 
JENNER & BLOCK 
One IBM Plaza 
Suite 4400
Chicago, Illinois 60611 
(312) 222-9350

CuriaeAttorneys for Amicus 

Dated: June 28, 1985



A-l

APPENDIX A

I. Legal Commentary Concerning Swain and Alter­
native Rules

Brown, McGuire & Winters, The Peremptory Chal­
lenge as a Manipulative Device in Criminal 
Trials: Traditional Use or Abuse, 14 New Eng. 
L. Rev. 192 (1978);

Kuhn, Jury Discrimination: The Next Phase, 41 
S. Cal. L. Rev. 235 (1968);

Winick, Prosecutional Peremptory Challenge Prac­
tice in Capital Cases: An Empirical Study and 
a Constitutional Analysis, 81 Mich. L. Rev. 1 
(1982);

Comment, Deterring the Discriminatory Use of 
Peremptory Challenges, 21 Am. Grim. L. Rev. 
477 (1984);

Note, Peremptory Challenges: United States v. 
Childress: Discriminatory Use of Peremptory 
Challenges: The Sixth Amendment as an Alter­
native Approach, 17 Creighton L. Rev. 1433 
(1983-84);

Note, Systematic Exclusion of Cognizable Groups 
by Use of Peremptory Challenges, 11 Fordham 
Urb. L. J. 927 (1982-83);

Note, The Defendant’s Right to Object to Prose­
cutorial Misuse of the Peremptory Challenge, 
92 Harv. L. Rev. 1770 (1979);

Comment, The Sixth Amendment: Limiting The 
Use of Peremptory Challenges, 16 J. Mar. L. 
Rev. 349 (1983);



A-2

Note, Peremptory Challenges in Transition, 5 Pace 
L. Rev. 185 (1984);

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

Note, Limiting the Peremptory Challenge: Repre­
sentation of Groups on Petit Juries, 86 Yale L. 
J. 1715 (1977).

II. Sociological Literature Concerning Blacks and the 
Jury System

H. Kalven & H. Zeisel, The American Jury 196-98, 
210-13 (1966);

R. Simon, The Jury and the Defense of Insanity 
111 (1967);

J. Van Dyke, Jury Selection Procedures: Our Un­
certain Commitment to Representative Panels, 
33-35, 154-60 (1977);

Rhine, The Jury: A  Reflection of the Prejudices 
o f the Community, in Justice on Trial (D. 
Douglas & P. Noble eds. 1971);

Adler, Socioeconomic Factors Influencing Jury 
Verdicts, N.Y.U. Rev. L. & Soc. Change 1-10 
(1973);

Bell, Racism in American Courts: Cause for Black 
Disruption or Despair? 61 Cal. L. Rev. 165-203 
(1973);

Bernard, Interaction Between the Race of the 
Defendant and That of Jurors in Determining 
Verdicts, 5 Law & Psychology Rev. 103, 107-08 
(1979);



A-3

Broeder, The Negro in Court, 1965 Duke L,J. 19,
22;

Davis & Lyles, Black Jurors, 30 Guild Prac. I l l  
(1973);

Gerard & Terry, Discrimination Against Negroes 
in the Administration of Criminal Law in 
Missouri, 1970 Wash. St. U.L.Q. 415-37;

Ginger, What Can Be Done to Minimize Discrimi­
nation in Jury Trials? 20 J. Pub. L. 427, 427-28 
(1971);

Gleason & Harris, Race, Socio Economic Status, 
and Perceived Similarity as Determinants of 
Judgments by Simulated Jurors, 3 Soc. Behav. 
& Personality 175-80 (1975);

McGlynn, Megas & Benson, Sex and Race as Fac­
tors Affecting the Attribution of Insanity in a 
Murder Trial, 93 J. Psychology 93-99 (1976);

Miller & Hewitt, Conviction of a Defendant as a 
Function of a Juror-Victim Racial Similarity, 
105 J. Soc. Psychology 156-60 (1978);

Ugwuegbu, Racial and Evidential Factors in 
Juror Attribution of Legal Responsibility, 15 
J. Experimental Soc. Psychology 133, 143-44
(1979);

Comment, A Case Study of the Peremptory Chal­
lenge: A Subtle Strike at Equal Protection and 
Due Process, 18 St. Louis U.L.J. 62 (1974).