Ham v. South Carolina Brief for Petitioner

    A M 5 / 6 < J

IN THE

Supreme Court of the United States
J fS B S  

Sup,
I F

OCTOBER TERM, 1971

No. 71-5139

GENE HAM,
Petitioneri*

v.

Scprsfits ficajt. p s 
F  I J. E D "

MAR 20 N7?

i f  feaiiii, as.,sing

STATE OF SOUTH CAROLINA.

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

BRIEF FOR PETITIONER

JACK GREENBERG 
JAMES M. NABRIT, III 
JONATHAN SHAPIRO 

10 Columbus Circle 
New York, New York 10019

MQRDECAI C. JOHNSON 
JOHN A. GAINES 

P.O. Box 743 
Florence, South Carolina

ANTHONY G. AMSTERDAM
Stanford University Law School 
Stanford, California 94305

Attorneys for Petitioner

Washington, D. C. " t h ie T PRESS 202 ■ 393-0625



( i)

TABLE OF CONTENTS

Page
OPINION BELOW ................................ .. ........................... .. 1

JURISDICTION ...........................       1

CONSTITUTIONAL PROVISIONS INVOLVED.............................  2

QUESTION PRESENTED ..........    2

STATEMENT OF THE C A SE.....................................................  2

ARGUMENT

The Trial Judge’s Refusal To Examine the Jurors on Voir 
Dire as to Whether They Were Prejudiced Against Peti- 
titioner Because of His Race or Because of Their Exposure 
to Pretrial Publicity Violated Petitioner’s Right to an 
Impartial Jury Guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution.......... .. 6

CONCLUSION........................... ......................................................  18

TABLE OF AUTHORITIES
Cases:
Aldridge v. United States, 283 U.S. 308 (1931)............. 6, 12, 1 6 ,18
Bailey v. United States, 53 F.2d 982 (5th Cir. 1 9 3 1 ).................  12
Boykin v. Alabama, 395 U.S. 238 (1 9 6 9 ).................... .................  8

Brown v. United States, 119 U.S. App. D.C. 203, 338 F.2d
543 (D.C. 1964)............................................... ..........................  12

Carter v. Jury Commissioners, 396 U.S. 320 (1 9 7 0 )....................  9
Coleman v. Alabama, 377 U.S. 129 (1964 )......................... .. 8

Dennis v. United States, 339 U.S. 162 (1 9 5 0 )...........................  10, 12
Duncan v. Louisiana, 391 U.S. 145 (1 9 6 8 )................................ . 6
Epps v. State, 102 Ind. 539, 1 N.E. 491 (1885)...........................  14
Estes v. Texas, 381 U.S. 532 (1965) .............................................  7

Fendrick v. State, 39 Tex. Cr. 147, 45 S.W. 589 (1 8 9 8 )............  17
Foute v. State, 85 Tenn. 712 (1 8 8 5 ).......................................... .. 14
Frasier v. United States, 267 F.2d 62 (1st Cir. 1959).......... .. 16
Gholston v. State, 221 Ala. 556, 130 So. 69 (1930) ............ .. . 16



Giles v. State, 229 Md. 370, 183 A.2d 359 (1962) .......................  16
Groppi v. Wisconsin, 400 U.S. 505 (1971) .................... .. 6, 8, 17
Hamer v. United States, 259 F.2d 274 (9th Cir. 1958), cert.

denied, 359 U.S. 196 (1959)....................... ...............................  13
Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934) . . . . . . . .  16
Irvin v. Dowd, 366 U.S. 717 (1961) ...................................6, 7, 9, 17
Johnson v. State, 88 Neb. 565, 130 N.W. 282 (1911).................  16
Jones v. People, 23 Colo. 276, 47 Pac. 275 (1898) ....................  ] i
Kiernan v. Van Schaik, 347 F.2d 775 (3rd Cir. 1965).  ............  13
King v. United States, 362 F.2d 968 (DC. Cir. 1966).................  16
Lewis v. United States, 146 U.S. 370 (1892)..............................  9 ,10
Marson v. United States, 203 F.2d 904 (6th Cir. 1953)...............  17

Morford v. United States, 339 U.S. 258 (1950) ............................  12
Nobles v. State, 127 Ga. 212, 56 S.E. 125 (1906) .......................  14
North Carolina v. Pearce, 395 U.S. 711 (1 9 6 9 ) ...................  7
Owens v. State, 177 Miss. 488, 171 So. 345 (1936) ....................  16
Parker v. Gladden, 385 U.S. 363 (1966)......................................  . 7
People v. Boulware, 29 N.Y.2d 135, 324 N.Y.S.2d 30 (1971) . . .  12

People v. Decker, 157 N.Y. 186, 51 N.E. 1018 (1 8 9 8 ).......  17
People v. Wheeler, 96 Mich. 1, 55 N.W. 371 (1 8 9 3 )............... . 11, 14
Pinder v. State, 27 Fla. 370, 8 So. 837 (1891) .......................... 16
Pointer v. United States, 151 U.S. 396 (1894)...........................  10,12
Reece v. Georgia, 350 U.S. 85 (1955) ..........................................  8
Rideau v. Louisiana, 373 U.S. 723 (1963)................................. 7 ,9 , 17
Roberson v. State, 456 P.2d 595 (Okla. Crim. 1968) ..................  14
Santobello v. New Y ork,___ U .S .____, 30 L.Ed.2d 427

(1971) .......................................................................................... 8
Sheppard v. Maxwell, 384 U.S. 333 (1966) ...................................  7, 17
Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968) . . 15,17
Smith v. United States, 262 F.2d 50 (4th Cir. 1959) .................  16
State v. Britt, 237 S.C. 293, 117 S.E .2d 379 (1960) .................  17

(ii)



State v. Dooley, 89 Iowa 584, 57 N.W. 414 (1 8 9 4 )....................  14

State v. Gurrington, 11 S.D. 178, 76 N.W. 326 (1 8 9 8 )...............  14

State v. Hoagland, 39 Idaho 405, 228 Pac. 314 (1924)...............  14
State v. Higgs, 143 Conn. 138, 120 A.2d 152 (1 9 5 6 ).................. 16
State v. Jones, 175 La. 1014, 144 So. 899 (1932) .......................  16
State v. McAfee, 64 N.C. 339 (1870).............................................  17
State v. Mann, 83 Mo. 489 (1884)..................................................  14
State v. Marfaudille, 48 Wash. 117, 92 Pac. 939 (1907)...............  14
State v. Mercier, 98 Vt. 368, 127 Atl. 715 (1925) ....................  14
State v. Morgan, 23 Utah 212, 64 Pac. 356 (1900) ..............   14
State v. Peterson, 255 S.C. 579, 180 S.E. 2d 341.........    17
State v. Pyle, 343 Mo. 875, 123 S,W.2d 166 (1938) ..................  36
State v. Smith, 49 Conn. 376 (1 8 8 1 ).............................................  11
State v. Stonestreet, 112 W. Va. 668, 116 S.E. 378 (1932) . . . .  14
Stone v. United States, 324 F.2d 804 (5th Cir. 1963), cert.

denied, 376 U.S. 938 (1964)............................................... .. 13
Strauder v. West Virginia, 100 U.S. 303 (1880 )......................... .. 7

Swain v. Alabama, 380 U.S. 202 (1965) ........................................ 16
Swenson v. Bosler, 386 U.S. 258 (1967)........................................ 7
Thompson v. City of Louisville, 362 U.S. 199 (1960).................  7
Turner v. Fouche, 396 U.S. 346 (1 9 7 0 )........................................  9
Turner v. Louisiana, 379 U.S. 466 (1965).....................................  7

United States v. Carter, 440 F.2d 1132 (6th Cir. 1 9 7 1 ) ..........15, 16
United States v. Dennis, 183 F.2d 201, n. 35 (2d Cir. 1951,

affd, 341 U.S. 494 (1951) .................................................... .. 16

United States v. Gore, 435 F.2d 1110 (4th Cir. 1 9 7 0 ) ............  16, 17
Whitus v. Georgia, 385 U.S. 545 (1967 )........................................ 7
Williams v. Florida, 399 U.S. 78 (1970) . ............. ........................ 10
Zancannelli v. People, 63 Colo. 252, 165 Pac. 612 (1917).......... 14

Statutes and Court Rules:
Ala. Code, Tit. 15, §52 (1 9 5 8 )....................................................... 13

§55 ....................................................... 11

{ Hi)



Alaska Stat. §09.20.090 (1962)....................................................  11, 13
Ariz. R. Crim. P. 217 (1956) .......................................................... 11

219 ............................................................................ 13
Ark. Stat. Ann. § 39-226 (1962) ................................. .. 14

§43-1915 (1964)....................................................   11
Cal. Pen. Code § 1078 (West’s 1969)..........................................   14

§ 1066 (West’s 1970)...............................................  11
Conn. Gen. Stat. Ann. §51-240 (Cum. Supp. 1 9 6 7 )................. .. 14
Del. Code §11-3301 (1953) ............................................................  14
Del. Super. Ct. (Crim.) R. 24 (1 9 4 8 ) ..........................................  11,14
D.C. Code Gen Sessions Ct. R. 24 (1961) . . . . . . . . . . . . . . . .  11, 14

Fed. R. Crim. P. 2 4 (a ) ........................   11,14
Fla. Stat. Ann. §913-02(2) (1969)...........................    11
Fla. Stat. Crim. Pro. R. § 1.290 (1968) . ...........................    14
Ga. Code Ann. §59-804 (1965).....................................    11

§59-806 ............... ......................................... ”  ’ ’ 14
Hawaii Rev. Stat. §635-27 (1968) ....................... ..................... .. . 14

§635-28................................................  11
Idaho Code Ann. §§19-2012, 2013, 2016 (1948).........................  H
111. Rev. Stat. ch. 38, §115-4 (1965) ..........................................  11,14

Ind. Stat. (Bums) §9-1054 (1956 ).................................................. 11
Iowa Code Ann. §779.6 (1946) ..................................................... 11

Kan. Stat. §22-3410 (1 9 7 1 ) .............................    H
§22-3408(3) ...................................................................  14

Ky. Rev. Stat. R. Crim. P. §§9.36,9.38 (1970) • .......................  11, 14
La. Const. Art. I § 1 0 ......................................................................  11,14

La. Stat. Ann. Code Crim. P. §786 (1 9 6 7 ) ................................... 14
§ 797 ...............................................  11

Me. Rev. Stat. Ann. Tit. 15, § 1258 (1 9 6 9 )................................... 14
§ 1259 ................................................  11

Md. Ann. Code, Tit. 51, §§10, 18 (1957)......................... .. H
Rule 745 (1971)................................................... 14

Mass. Ann. Laws ch. 234, §28 (1956) ........................................  11,14

(iv)



Mich. Comp. Laws Ann. §768.8 (1 9 4 8 ) ................................... .. . 14
§768.9 ..........................................   11

Minn. Stat. Ann. §631.26 (1945) ................. ...............................  14
§631.28 ............................................................   11

Miss. Code Ann. § 1802 (1 9 4 2 ) ..................................................  11,14
Mo. Rev. Stat. §§546.120-546.160 (1959) .......................  11
Mont. Rev. Code, Tit. 95, § 1909 (1947) ...................................... 11

§ 1909(c)......................    14
Neb. Rev. Stat. §29-2004 (1964)......................      14

§29-2006 .................................................................  11
Nev. Rev. Stat., Tit. 14 § 175.031 (1 9 6 7 ) .....................................  14

§175.036 . ...........................    11
N.H. Rev. Stat. Ann., ch. 500-A:32; 606:1 (Cum. Supp.

1 9 7 1 ) ....................................................................................... .. . 14
ch. 606, §3 (1 9 5 5 ).....................................  H

N.J. Stat. Ann. Tit. 2A §78-4 (1952) . ...........................................  14
2A §78-7 .........................................................  11

N.M. Stat. §19-1-14 (1953) ...........................    n
§ 21-1-1 (47a)............................................   14

N.Y. Crim. Proc. L. §270.15 (McKinney’s 1 9 7 1 ).........................  14
§270.20 ......................     i i

N.C. Gen Stat. §9-15 (1969)...................... ............................. .. .11, 14
N.D. Cent. Code §29-17-28 (1960) ...............................................   14

§29-17-32.........    11
Ohio Rev. Code §2945.24 (1 9 7 1 ) .................... ............................. n

§2945.27 ......................................................   14
Okla. Stat. Ann. §656 (1969) ..........................................................  11
Ore. Rev. Stat. § 136.210 (1961 ).....................................................  14

§§ 17.165,136.210 ......................   11

Pa. Stat. Tit. 19 §811 (1 9 6 4 )....................................................  11, 14
R. I. Gen Laws §9-10-14 (1956)..................................................  11,14
S. C. Code of Laws § 38-61 (1962) 13

§38-202 ...............................................  5,11, 14, 17
S.D. Comp. Laws §§23-43-28, 23-43-29 (1967) . . .................. .. . n



Tenn. Code §22-301 (1 9 5 6 ) .................................................. n
Tex. Code Crim. P. (Vernon’s Ann.) Art. 35.16 (1965) . . . . . . .  n

35 .17 ...................... .. . 14
United States Code, Tit. 28, § 1257(3)..........................................  2
Utah Code §77-30-16 (1953) .........................................................  11
Va. Code §§8-199, 19.1-206 (1960)..........................................  11, 14
Vt. Ann. Stat., Tit. 12 § 1941 (1947).............................................  11

Wash. Rev. Code Ann. §10.40.040 (1961). . ......................... .. 11
W. Va. Code §62-34 (1966) .........................................................  11

Wis. Stat. Ann. §§957.14, 270.16 (1957) .............................. .. 11,14
Wyo. Stat. R. Crim. P. 25 (1 9 6 8 ) ............ ................... ..............  11, 14
Wyo. Stat. §7-222 (1957) .................................................. ...........  11

Other Authorities:
ABA PROJECT ON STANDARDS FOR CRIMINAL 

JUSTICE, Fair Trial and Free Press, §2.3, 126-127 
(Approved Draft 1968) ................................ ..................... 9 ,15 ,17

ABA PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, Trial by Jury, §2.4 (Supp. 1968) . 9, 11, 13, 14, 17, 18

ALI CODE OF CRIMINAL PROCEDURE (1931)...................... 11,14
1 ANNALS OF CONG. 435 (1 7 8 9 ).........    10

3 BLACKSTONE, COMMENTARIES 363 .................................  13
1 BUSCH, LAW AND TACTICS IN JURY TRIALS 9

(Encyl. ed. 1 9 5 9 ) ........................................................................  9

DEVLIN, TRIAL BY JURY 30-31 (1956) ................................  9, 13
FORSYTH, HISTORY OF TRIAL BY JURY 175 (1852 ).......... 8
HELLER, THE SIXTH AMENDMENT TO THE CONSTI­

TUTION OF THE UNITED STATES 24 (1951) ....................  10
1 LETTERS AND OTHER WRITINGS OF JAMES

MADISON 491 (1856)...............................................    io
Note, Community Hostility and the Right to an Impartial

Jury, 60 COLUM. L. Rev. 349 (1 9 6 0 ) .....................................  13
2 WRIGHT, FEDERAL PRACTICE AND PROCEDURE

38(1969)

(vi)

11



IN THE

Supreme Court of the United States
OCTOBER TERM, 1971

No. 71-5139

GENE HAM,
Petitioner,

v.

STATE OF SOUTH CAROLINA.

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

BRIEF FOR PETITIONER

OPINION BELOW

The opinion of the Supreme Court of South Carolina is 
reported at 256 S. C. 1, ISO S.E.2d 628 (1971) and is set 
out in the Appendix (A. 100). Petitioner was convicted 
upon trial by jury in the Court of General Sessions of 
Florence County, South Carolina, and there is no opinion 
with respect to that conviction.

JURISDICTION

The judgment of the Supreme Court of South Carolina 
was entered on April 7, 1971 and a timely petition for 
rehearing was denied on April 28, 1971 (A. 106). The 
petition for writ of certiorari was filed on July 24, 1971 
and certiorari was granted on January 24, 1972. The juris­



diction of this Court is invoked pursuant to 28 U.S.C 
§ 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution 
provides in part:

“In all criminal prosecutions the accused shall enjoy 
the right to a speedy and public trial, by an impartial 
jury of the State and district wherein the crime shall 
have been committed . .

The Fourteenth Amendment to the United States Consti­
tution provides in part:

“ Section 1 . . . No State shall make or enforce any 
law which shall abridge the privileges or immunities 
of citizens of the United States; nor shall any State 
deprive any person of life, liberty, or property with­
out due process of law; nor deny to any person 
within its jurisdiction the equal protection of the 
laws.”

QUESTION PRESENTED

Whether the trial judge’s refusal to examine the jurors 
on voir dire as to whether they were prejudiced against 
petitioner because of his race or because of their exposure 
to pretrial publicity violated petitioner’s right to an 
impartial jury, guaranteed by the Sixth and Fourteenth 
Amendments to the United States Constitution?

STATEMENT OF THE CASE

Petitioner Gene Ham is a black civil rights worker who 
has long been active in the civil rights movement in Flor­
ence County, South Carolina (A. 73). On June 3, 1970 
he was convicted after a jury trial in the Court of General 
Sessions of Florence County of possession of marijuana and 
sentenced to eighteen months upon the public works of the 
county or in the state penitentiary (A. 2).



3

Petitioner was arrested by three police officers on the 
afternoon of May 15, 1970 on the basis of several warrants 
that had been issued for his arrest (A. 4-7, 49). After his 
arrest he was frisked on the street, placed in a patrol car 
and taken to the police station (A. 75). There he was 
booked and asked to take everything out of his pockets 
(A. 50). According to the police officers, he removed 
eight packages from his pocket which were opened, 
examined, and found to contain somewhat less than an 
ounce of marijuana (A. 50, 60). An additional warrant 
charging him with possession of marijuana was then issued 
(A. 53).

After a preliminary hearing on May 28th and 29th, 
petitioner was bound over to the grand jury on each of the 
five charges against him, including possession of marijuana 
(A. 2). He was indicted on each charge on June 1st 
(A. 2), and on June 2nd the possession of marijuana 
charge was called for trial in the General Sessions Court 
(A. 8).

Petitioner’s motion for a continuance on the ground that 
he had not been able, on one day’s notice, to file motions 
or prepare for trial was denied, and counsel was directed to 
make all motions orally (A. 11). His motion for a 
change of venue or for a continuance on the ground of 
prejudicial publicity was summarily overruled (A. 12).
A brief hearing was then held on his motion to strike the 
petit jury venire on the ground that Negroes had been sys­
tematically excluded (A. 17). Despite his showing that 
only six (17%) of the thirty-six petit jurors who were 
available for his case were black although 32% of the 
names in the jury box were of blacks, and that the trial 
venire was selected from slips of paper on which the race 
of the juror was indicated, the motion was denied (A. 31-32). 
Over petitioner’s objection, the trial on the merits was set 
for the following day (A. 32).

At the beginning of the selection of the jury, petitioner 
requested that the judge put the prospective jurors on voir 
dire and ask them the following questions:



4

1. Would you fairly try this case on the basis of the 
evidence and disregarding the defendant’s race?

2. You have no prejudice against negroes? Against 
black people? You would not be influenced by the 
use of the term “black?”

3. Would you disregard the fact this defendant wears 
a beard in deciding this case?

4. Did you watch the television show about the local 
drug problem a few days ago when a local police­
man appeared for a long time? Have you heard 
about recent newspaper articles to the effect that 
the local drug problem is bad? Would you try this 
case solely on the basis of the evidence presented
in this courtroom? Would you be influenced by the 
circumstances that the prosecution’s witness, a police 
officer, has publicly spoken on TV about drugs?”
(A. 35-36).

The judge refused to ask any of these proposed questions 
on the ground that “ [tjhey were not relevant” (A. 35). 
Instead, he asked generally whether any member of the 
panel was related by blood or marriage to petitioner 
(A. 35), and addressed the following three questions to 
each juror individually:

“Have you formed or expressed any opinion as to the 
guilt or innocence of the defendant?

“Are you conscious of any bias for or against him?
“Can you give the State and the defendant a fair 
trial?” (A. 36-48).

Tito© jurors were excused by the court because of their an­
swers to these questions.1 No one was challenged for cause 
by either the State or petitioner, but each side exhausted its 
five peremptory challenges (A. 37, 39, 40, 41,42, 44, 46, 47).

1 One juror answered in the affirmative to the first two questions 
(A. 42), and one juror answered “no” to the third question (A. 47).



5

The State’s case consisted only of testimony that eight 
packages had been discovered among petitioner’s personal 
belongings when he had been searched at the police station 
after his arrest (A. 50), and that the packages had been 
found to contain a small quantity of marijuana (A. 60). 
Petitioner took the stand in his own defense and testified 
that the first time he had seen the package was when he 
removed the contents of his pockets (A. 76). He stated 
that he had not had the packages in his possession at any 
time before he was arrested, and could only speculate that 
the police officers had planted them in his pockets when 
he was frisked or later at the police station (A. 77). He 
also testified that he had heard that the local police were 
“out to get him” because of his civil rights activities, which 
included working for the Southern Christian Leadership Con­
ference (SCLC) and being a member of the Bi-Racial Com­
mittee of the City of Florence (A. 71, 73-74, 85).

The jury returned a verdict of guilty and, despite the fact 
that it was a first offense, petitioner was sentenced to 
eighteen months imprisonment (A. 92). A motion for judg­
ment notwithstanding the verdict or for a new trial, which pre­
served his rights on appeal under all motions and objections 
raised during the trial, was denied (A. 92).

On appeal, petitioner assigned as error the refusal of the 
trial court to examine the jurors on voir dire with respect 
to racial prejudice or their exposure to pretrial publicity 
and argued that such refusal violated his right to an impartial 
jury guaranteed by the Fourteenth Amendment to the Con­
stitution.2 A divided South Carolina Supreme Court 
affirmed petitioner’s conviction. The majority held that the 
trial judge had asked the basic questions required by §38- 
202 S. C. Code (1962),3 and had not abused his discretion 
in refusing to ask others.

2Brief of Appellant, p. 15; Reply Brief, pp. 3-7.
3This section provides:

§38-202. Jurors may be examined by court; i f  not 
indifferent, shall be set aside. -  The Court shall, on motion



6

Noting that petitioner was a “black, bearded, civil or 
human rights activist,” two of the five Justices dissented on 
the ground that the trial court’s refusal to examine the jurors 
was in conflict with the decision of the United States 
Supreme Court in Aldridge v. United States, 283 U.S. 308 
(1931), which they considered binding on the States. A 
petition for rehearing was denied over the same dissenting 
votes (A. 106).

ARGUMENT
THE TRIAL JUDGE’S REFUSAL TO EXAMINE THE 
JURORS ON VOIR DIRE AS TO WHETHER THEY 
WERE PREJUDICED AGAINST PETITIONER BECAUSE 
OF HIS RACE OR BECAUSE OF THEIR EXPOSURE 
TO PRETRIAL PUBLICITY VIOLATED PETITIONER’S 
RIGHT TO AN IMPARTIAL JURY GUARANTEED BY 
THE SIXTH AND FOURTEENTH AMENDMENTS TO 
THE UNITED STATES CONSTITUTION.

The Sixth and Fourteenth Amendments guarantee a crim­
inal defendant a trial by an impartial jury. Groppi v. Wis­
consin, 400 U.S. 505 Duncan v. Louisiana, 391 U.S.
717 (1961); Irvin v. Dowd, 366 U.S. 717 (1961). This Court 
has said:

“In essence, the right to jury trial guarantees to the 
accused a fair trial by a panel of impartial, ‘indif­
ferent’ jurors. The failure to accord an accused a 
fair hearing violates even the minimal standards of 
due process . . .  In the language of Lord Coke, a 
juror must be as ‘indifferent as he stands unsworne.’ 
Co Litt 155 b. His verdict must be based on evi­
dence developed at the trial . . .” 4
of either party in the suit, examine on oath any person who 
is called as a juror therein to know whether he is related 
to either party, has any interest in the cause, has expressed 
or formed any opinion or is sensible of any bias or prejudice 
therein, and the party objecting to the juror may introduce 
any other competent evidence in support of the objection.
If it appears to the court that the juror is not indifferent in 
the cause, he shall be placed aside as to the trial of that cause 
and another shall be called.”

4Irvin v. Dowd, supra, 366 U.S. at 722.



7

Unless the impartiality of the jury can be assured, the fun­
damental right to a fair trial will itself be rendered mean­
ingless.

It cannot be doubted that the right to an impartial jury 
requires a panel of jurors who are free from prejudice against 
the defendant because of his race or because of their expo­
sure to pretrial publicity. As long ago as 1880 this Court 
held that the “apprehended existence of prejudice” against 
a black criminal defendant from a jury from which blacks 
had been systematically excluded required the reversal of 
his conviction. Strauder v. West Virginia, 100 U.S. 303 
(1880). In order to prevent racial prejudice from affecting 
the impartiality of juries, an unbroken line of cases since 
that time has condemned any racial discrimination in the 
jury selection process. Whitus v. Georgia, 385 U.S. 545 
(1967). Similarly, the right of the accused to a jury deter­
mination based only upon the evidence presented at a trial 
has been recognized as one of the fundamental guarantees 
of due process. Irvin v. Dowd, supra, 366 U.S. at 722; 
Thompson v. City o f  Louisville, 362 U.S. 199 (1960). And 
this Court has been particularly sensitive to the denial of 
this right by prejudicial publicity and extra-judicial state­
ments. Parker v. Gladden, 385 U.S. 363 (1966); Sheppard 
v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S. 
532 (1965); Turner v. Louisiana, 379 U.S. 466 (1956); 
Rideau v. Louisiana, 373 U.S. 723 (1963).

It is well established that where federal constitutional 
rights such as the right to an impartial trial are at stake, 
federal law requires that the States make available the means 
that are necessary to safeguard those rights. Swenson v. 
Bosler, 386 U.S. 258 (1967).5 Only recently this Court

5 In several different areas, this Court has held that specific state 
court procedures are necessary to adequately insure the protection of 
federal rights. Thus, a state court is constitutionally required to give 
a statement of reasons for an increased sentence after a second con­
viction of a successful appellant in order to provide assurance that he 
is not being penalized for the exercise of his right to appeal, North



8

recognized that since a change of venue may provide the 
only means by which to assure an impartial jury, a State 
could not constitutionally bar changes of venue in all mis­
demeanor cases. Groppi v. Wisconsin, supra. Thus, it was 
held that “under the Constitution a defendant must be 
given an opportunity to show that a change of venue is 
required in his case.” Id. at 511. (Emphasis in original). 
Just as a defendant is constitutionally entitled to show that 
a change of venue is required to insure an impartial jury, 
Groppi v. Wisconsin, supra, so too must he be entitled to 
an adequate means to select an impartial jury in the venue 
in which he is tried. In the present case, petitioner con­
tends that his right to an impartial jury can only be vouch­
safed if he is given a meaningful opportunity to challenge 
for cause prospective jurors who are prejudiced against him 
because of his race or because of their exposure to pretrial 
publicity.

The right to challenge prospective jurors for cause on 
account of bias or prejudice is essential to the constitu­
tional guarantee of an impartial trial because it is the prin­
cipal, if not the only, means by which a criminal defendant 
can secure an impartial jury.6 Even the fairest procedures 
by which master jury lists are compiled can at best only

Carolina v. Pearce, 395 U.S. 711 (1969); it cannot sentence a defen­
dant on a guilty plea where any aspect of the prosecutor’s 
plea-bargaining promise has not been kept, in order to insure against 
the involuntary waiver of his constitutional right to a jury trial,
Santobello v. New York, ___  U.S. ___ , 30 L.Ed.2d 427 (1971);’
it cannot accept a guilty plea unless the prerequisites of the plea 
affirmatively appear on the record, Boykin v. Alabama, 395 U.S. 
238 (1969); and it must give a defendant an opportunity to introduce 
evidence in support of his claim that the jury selection procedure 
violated his rights under the Fourteenth Amendment, Coleman v. 
Alabama, 377 U.S. 129 (1964); Reece v. Georgia, 350 U S 65 
(1956).

6See W. FORSYTH, HISTORY OF TRIAL BY JURY 175 (1852); 
DEVLIN, TRIAL BY JURY 30-31 (1956); Note, Community Hos­
tility and the Right to an Impartial Jury, 60 COLUM. L. REV 349 
354 (1960).



9

provide juries that represent a “cross-section” of the com­
munity and cannot guarantee that the jurors selected will 
be unbiased toward a particular defendant. Carter v. Jury 
Commissioner, 396 U.S. 320 (1970); Turner v. Fouche, 396 
U.S. 346 (1970). Similarly, the right to a continuance or 
to a change of venue only serves to reduce the likelihood 
of prejudice to a defendant which may result from com­
munity hostility in connection with a particular case. Irvin 
v. Dowd, supra-, Rideau v. Louisiana, 373 U.S. 723 (1963). 
Indeed, a continuance or change of venue is available in 
many jurisdictions only after a defendant has been unable 
to secure an impartial jury through his exercise of chal­
lenges.7 It is, therefore, only through the right of challenge 
that the defendant can eliminate from the jury which may 
strip him of liberty or life those individuals who are actu­
ally prejudiced against him. As one authority has stated:

“Trial by jury will be useless as a safeguard for the 
subject. . .  if it means trial by a packed jury. There­
fore the precautions which the law takes to secure 
that a jury is unbiased and independent must be 
preserved . . .” 8

The right of challenge for cause on account of bias or 
prejudice is also a fundamental component of the right to 
a jury trial. As this Court has recognized, “the right of 
challenge comes from the common law with the trial b y j^ 'j  
itself, and has always been held essential to the fairness of 
trial by jury.” Lewis v. United States, 146 U.S. 370, 376 
(1892). As early as the middle of the thirteenth century, 
Bracton wrote that exceptions could be taken to individual 
jurors on the ground of a previous conviction for perjury, 
serfdom, consanguinity, affinity, enmity, or close friend­
ship.9 And by the middle of the fifteenth century, most of

7 ABA PROJECT ON STANDARDS FOR CRIMINAL JUSTICE,
Fair Trial and Free Press, 126-2(17 (Approved Draft 1968).

8 DEVLIN, supra, n. 5, at 31
91 BUSCH, LAW AND TACTICS IN JURY TRIALS 9 (Encyl. ed. 

1959).



10

the incidents of the modern jury trial, including the right 
of challenge, had become settled.10 Although a specific 
reference to the right of challenge was not included in the 
Sixth Amendment,11 it has always been recognized in this 
country as a fundamental element of a jury trial, embraced 
by the guarantee of an “impartial” jury .12 It is guaranteed 
to a criminal defendant under the law of every State and

10 Ibid.
11 Because of the objections to the absence of an explicit provision 

saving the right to challenge prospective jurors in Article III of the 
Constitution, the Sixth Amendment originally contained such a pro­
vision when introduced in the House by James Madison. HELLER, 
THE SIXTH AMENDMENT 24 (1951). This version provided that:

“The trial of all crimes . . . shall be by an impartial jury of 
freeholders of the vicinage, with the requisite of unanimity 
for conviction, of the right of challenge and other accus­
tomed requisites . . . ” 1 ANNALS OF CONG. 435 (1789).

Largely at the insistence of the Senate, however, the Amendment was 
altered to eliminate the specific references to the common law 
features of a jury trial. HELLER, supra at 31-33. The reason for 
these deletions is unclear because there is no record of the Senate 
debates on the Sixth Amendment. Id. at 31. However, in two letters 
to Edmund Pendleton, Madison wrote that the vicinage requirement 
was the only feature of the common law jury that was specifically 
objected to by the Senate. 1 LETTERS AND OTHER WRITINGS 
OF JAMES MADISON 491, 492-93 (1865); see Williams v. Florida, 
399 U.S. 78, 94-96 (1970). In the absence, therefore, of any con­
crete evidence that the Senate opposed the right of challenge, its 
deletion from the Amendment cannot be taken as an indication that 
Congress did not intend the right of challenge to be part of the con­
stitutional right to a jury trial. On the contrary, it is at least as likely 
that the Senate’s action in streamlining the Madison version rested on 
the “assumption that the most prominent features of the jury would 
be preserved as a matter of course.” Williams v. Florida, supra, 399 
U.S. at 123 n. 9 (Harlan, J. Concurring).

12 HELLER, THE SIXTH AMENDMENT TO THE CONSTITUTION 
OF THE UNITED STATES 71 (1951); see Dennis v. United States, 
339 U.S. 162 (1950); Pointer v. United States, 151 U.S. 396 (1894); 
Lewis v. United States, 146 U.S. 370 (1892).



11

the District of Columbia,13 and is established practice in the 
federal courts.14 The right of challenge for cause, therefore,

13 The right of challenge is guaranteed specifically by statute in 
most states, and in other states by either court rule or decisional law. 
See ALA. CODE, Tit. 15, §55 (1958); ALASKA STAT. §09.20.090 
(1962); ARIZ. R. CRIM. P. 219 (1956); ARK. STAT. ANN. §43-1915 
(1964); CAL PEN. CODE § 1066 (West’s 1970); Jones v. People, 23 
Colo. 276, 47 Pac. 275 (1898); State v. Smith, 49 Conn. 376 (1881); 
DEL. SUPER. CT. (CRIM.) R. 24 (1948); D.C. CODE GEN SESSIONS 
CT. R. 24 (by inference) (1961); FLA. STAT. ANN. §913-02(2) 
(1969); GA. CODE ANN. §59-804 (1965); HAWAII REV. STAT. 
§635-28 (1968); IDAHO CODE ANN. §§19-2012, 2013, 2016 
(1948); ILL. REV. STAT. ch. 38, § 1154 (1965); BURNS IND. STAT. 
§9-1054 (by inference) (1956); IOWA CODE ANN. §§779.6 (1946); 
KAN. STAT. §22-3410 (1971); KY. REV. STAT. R. CRIM. P. 
§§9.36, 9.38 (1970); LA. CONST. ART. I §10; LA. STAT. ANN. 
CODE CRIM. P. §797 (1967); ME. REV. STAT. ANN., tit. 15, 
§1259 (1969); MD. ANN. CODE, tit. 51, §§10, 18 (1957; MASS. 
ANN. LAWS ch. 234, §28 (1956); MICH. COMP. LAWS ANN. §768.9 
(1948); People v. Wheeler, 96 Mich. 1, 55 N.W. 371 (1893); MINN. 
STAT. ANN. § 631.28 (1945); MISS CODE ANN. § 1802 (by inference) 
(1942); MO. REV. STAT. §§546.120-546.160 (1959); MONT. REV. 
CODE, tit. 95, §1909 (1947); NEB. REV. STAT. §29-2006 (by 
inference (1964); NEV. REV. STAT., tit. 14, § 175.036 (1967); N.H. 
REV. STAT. ANN., ch. 606, §3 (1955); N .J. STAT. ANN., tit.2A  
§78-7 (1952); N. M. STAT. §19-1-14 (1953); N. Y. CRIM. PROC. 
L. §270.20 (McKinney’s 1971); N. C. GEN. STAT. §9-15 (1969),
N. D. CENT. CODE §29-17-32 (1960); OHIO REV. CODE §2945.24 
(by inference) (1971); OKLA. STAT. ANN. §656 (1969); ORE. REV. 
STAT. §§ 17.165, 136.210 (1961); PA. STAT. tit. 19 §811 (1964);
R. I. GEN. LAWS §9-10-14 (1956); S. C. CODE OF LAWS §38-202 
(1962); S.D. COMP. LAWS §§2343-28, 2343-29 (1967; TENN. 
CODE §22-301 (1956); TEX. CODE CRIM. P. (Vernon’s Ann.) Art. 
35.16 (1965); UTAH CODE §77-30-16 (1953); VT. ANN. STAT., 
tit. 12 § 1941 (1947); VA. CODE §§ 8-199, 19.1-206 (1960); WASH. 
REV. CODE ANN. § 10.49. 040 (1961); W. VA. CODE § 62-34 (1966); 
WIS. STAT. ANN. §§957.14, 290.16 (1957); WYO. STAT. §7-222 
(1957); WYO. R. CRIM. P. 25 (1968). See ALI CODE OF 
CRIMINAL PROCEDURE, 109-110, 822 (Official Draft 1931); ABA 
PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, Trial by 
Jury 67 (Approved Draft 1968).

14FED. R. CRIM. P. 24(a); see 2 WRIGHT, FEDERAL PRAC­
TICE AND PROCEDURE 38 (1969).



12

is not only essential to the enforcement of the right to an 
impartial jury, but it has an independent source in the 
Sixth Amendment’s right to a jury trial.

In order to exercise effectively his constitutional right to 
challenge for cause jurors who are prejudiced against him 
by reason of his race or pretrial publicity, a criminal 
defendant must be provided with some procedure for exam­
ining prospective jurors with respect to their biases and pre­
judices. As this Court has said, “ [p]reservation of the 
opportunity to prove actual bias is a guarantee o f a defend­
ant’s right to an impartial jury .” Dennis v. United States, 
339 U.S. 162, 171-172 (1950). And the right of challenge 
would indeed be a hollow guarantee unless the defendant 
were “brought face to face in the presence of the court, 
with each proposed juror, and an opportunity given for 
such inspection and examination of him as is required for 
the due administration of justice.” Pointer v. United States, 
151 U.S. 196, 409 (1894).15

In the absence of a voir dire examination, the only 
means that a defendant would have of discovering the exis­
tence of grounds upon which he could exercise a challenge 
for cause would be to investigate prospective jurors prior to 
the commencement of the trial. But such a possibility does 
not provide a realistic alternative to a voir dire examination. 
Not only would such an investigation be unlikely to dis­
close the biases and prejudices that a juror will only reveal 
when he is put on oath and examined by the court or coun­
sel, but there would be no way to lay the foundation for 
the exercise of a challenge for such a cause without ques­
tioning the juror himself. The practical impossibility, more­
over, for a criminal defendant, who may be indigent, to 
conduct an extensive investigation of a trial venire in the

15See also Morford v. United States, 339 U.S. 258, 259 (1950); 
Aldridge v. United States, 283 U.S. 308 (1931); Brown v. United 
States, 119 U.S. App. D.C. 203, 338 F.2d 543 (D.C. 1964); Bailey 
v. United States, 53 F.2d 982, 984 (5th Cir. 1931), People v. Boul- 
ware, 29 N.Y.2d 135, 324 N.Y.S.2d 30 (1971).



13

limited time between its publication and the time of trial 
severely limits its usefulness.16 Finally, any procedure 
which encouraged pretrial contact between a defendant 
and prospective jurors might itself impair their impartiality 
and be open to serious abuse.17 It is for these reasons 
that a voir dire examination of prospective jurors in con­
nection with the exercise of challenges for cause has been 
widely recognized as the principal, if not the only, means 
of selecting an impartial jury .18 The practice is deeply 
rooted in the history of trial by jury,19 and is the right 
of a criminal defendant in the fifty States, the District of 
Columbia and the federal courts.20

16In the present case, the trial venire of 50 persons was not selected 
and summoned until ten days before the term of court at which 
petitioner was tried, in accordance with §38-61, S. C. CODE (1962) 
(A. 28). There is, moreover, no requirement that the defendant be 
provided with a list of the veniremen prior to the day of the trial. 
See Stone v. United States, 324 F.2d 804 (5th Cir. 1963), cert, denied, 
376 U.S. 938 (1964); Hamer v. United States, 259 F.2d 274 (9th Cir. 
1958), cert, denied, 359 U.S. 196 (1959); cf. ABA PROJECT ON 
STANDARDS FOR CRIMINAL JUSTICE, Trial By Jury §2.3 
(Approved Draft 1968).

17See Kiernan v. Van Schaik, 347 F.2d 775, 780 (3rd Cir. 1965) 
(“The impartiality of jurors should be tested under the control of the 
court rather than by the unsupervised activities of investigators with 
all the undesirable possibilities of intimidation and jury tampering 
which such surveillance inevitably presents.”)

18See Note, supra n. 5, 60 COLUM. L. REV. at 354; DEVLIN, 
supra, n. 5, at 31-33.

19Blackstone described the practice at common law as follows:
“A juror may himself be examined on oath of voir dire, 

veritatem dicere (to speak the truth) with regard to such 
causes of challenge as are not to his dishonor or discredit; 
but not with regard to any crime, or any thing which tends 
to his disgrace or disadvantage.” 3 W. BLACKSTONE, COM­
MENTARIES 363 (Cooley ed. 1899).

20The right to conduct a voir dire examination is guaranteed 
specifically by statute in most states, and in other states by either 
court rules or decisional law. See ALA. CODE, tit. 15, §52 (1958); 
ALASKA STAT. §09.20.090 (1962); ARIZ. R. CRIM. P. 217 (1956);



14

By refusing to ask the questions proposed by petitioner, 
the trial judge effectively denied petitioner any opportunity 
to have the prospective jurors examined on voir dire with 
respect to whether they were prejudiced against him.

ARK. STAT. ANN. §39-226 (1962); CAL. PEN. CODE §1078 (West 
1969); Zancannelli v. People, 63 Colo. 252, 165 Pac. 612 (1917); 
CONN. GEN. STAT. ANN. §51-240 (Cum. Supp. 1967); DEL. CODE 
§ 11-3301 (1953); DEL. SUPER. CT. (CRIM.)R.24(1948); D.C. CODE 
GEN. SESSIONS CT. R. 24 (1961); FLA. STAT. ANN. CRIM. 
PRO. R. § 1.290 (1968); GA. CODE ANN. §59-806 (felony); Nobles 
v. State, 127 Ga. 212, 56 S.E. 125 (1906) (misdemeanor); (1965); 
FLAW All REV. STAT. §635-27 (1968); State v. Hoagland, 39 Idaho 
405, 228 Pac. 314 (1924); ILL. REV, STAT. ch. 38, § 115-4(0 
(1965); Epps v. State, 102 Ind. 539, 1 N.E. 491 (1885); State v. 
Dooley, 89 Iowa 584, 57 N.W. 414 (1894); KAN. STAT. ANN. 
§22-3408(3) (Cum. Supp. 1971); KY. REV. STAT. R. CRIM.
P. §9.38 (1970); LA. CONST. ART. I. § 10; LA. STAT. ANN. CODE 
CRIM. P. § 786 (1967); ME. REV. STAT. ANN., tit. 15, § 1258 
(1969); MD. ANN. CODE, Rule 745 (1971); MASS. ANN. 
LAWS, ch. 234, § 28 (1956); MICH. COMP. LAWS ANN. §768.8 
(1948); People v. Wheeler, 96 Mich. 1, 55 N.W. 371 (1893); MINN. 
STAT. ANN. §631.26 (1945); MISS. CODE ANN. § 1802 (1942); State 
v. Mann, 83 Mo. 589 (1884); MONT. REV. CODE, tit. 95 §1909 (c) 
(1947); NEB. REV. STAT. §29-2004 (1964); NEV. REV. STAT., tit. 
14 §175.031 (1967); N. H. REV. STAT. ANN., ch. 500-A:32; 606:1, 
(Cum. Supp. 1971); N. J. STAT. ANN. tit. 2A §78-4 (1952); N. M. 
STAT. §21-1-1 (47a) (1953); N. Y. CRIM. PROC. L. §270.15 
(McKinney’s 1971); N. C. GEN. STAT. §9-15 (1969); N. D. CENT. 
CODE §29-17-28 (1960); OHIO REV. CODE §2945.27 (1971); 
Roberson v. State, 456 P.2d 595 (Okla. Crim. 1968); ORE. REV. 
STAT. §136.210 (1961); PA. STAT., tit. 19 §811 (1964); R.I. GEN. 
LAWS § 9-10-14 (1956); S. C. CODE OF LAWS' § 38-202 
(1962);State v. Gurrington, 11 S. D. 178, 76 N.W. 326 (1898);Ebwte 
v State, 83 Tenn. 712 (1885); TEX. CODE CRIM. P. (Vernon’s 
Ann.), Art. 35.17 (1965); State v. Morgan, 23 Utah 212, 64 Pac. 
356 (1900); State v. Mercier, 98 Vt. 368, 127 Atl. 715 (1925); VA. 
CODE §§8-199, 19.1-206 (1960); State v. Marfaudile, 48 Wash. 117, 
92 Pac. 939 (1907); State v. Stonestreet, 112 W. Va. 668, 116 S.E. 
378 (1932); WIS. STAT. ANN. §§957.14, 270.16 (1947); WYO STAT. 
R. CRIM. P. 25 (1968). See ALI CODE OF CRIMINAL PROCEDURE, 
109-110, 822 (Official Draft 1931); ABA PROJECT ON STANDARDS 
FOR CRIMINAL JUSTICE, Trial by Jury 67 (Approved Draft 
1968). FED. R. CRIM. P. 24 (a).



15

Clearly, the three general questions the judge put to the 
jurors relating to their impartiality were inadequate to elicit 
meaningful responses. It is widely recognized that the mere 
statement by the juror in response to a general query that 
he can be impartial is entitled to little weight. As one fed­
eral court concluded:

“ [Mjerely going through the form of obtaining 
juror’s assurances of impartiality is insufficient. . . . 
[Wjhether a juror can render a verdict based solely 
on evidence adduced in the courtroom should not 
be adjudged on that juror’s own assessment o f self- 
righteousness without something more” (Emphasis 
in original).21

Calling for purely subjective responses to general questions 
is ineffective to test impartiality, and “the defendant in a 
criminal case has the ‘right to probe for the hidden preju­
dices o f jurors’.”22

A specific inquiry into prejudices of the jurors resulting 
from racial bias or pretrial publicity was particularly vital 
under the circumstances of the present case. As noted by the 
two dissenting Justices of the South Carolina Supreme 
Court, petitioner is a “black, bearded, civil or human rights 
activist” whose role as an SCLC worker had gained him noto­
riety in Florence County (A. 71,73-74). The outcome of the 
prosecution against him for the possession of marijuana de­
pended solely upon weighing the credibility of a white police 
officer who claimed that he had found the drug in petitioner’s 
possession while searching him, and of petitioner who testi­
fied that he did not have the marijuana in his possession and 
that he was being “framed” by the authorities because of 
his involvement in civil rights. The case was, moreover,

21 Silverthorne v. United States, 400 F.2d 627, 638-39 (9th Cir. 
1968); see also United States v. Carter, 440 F.2d 1132, 1134 (6th 
Cir. 1971).

22Silverthorne v. United States, supra, 400 F.2d at 640; see ABA 
PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, supra, n.6, 
at 130-134.



16

of unusual interest because of the recent concern and publi­
city in Florence over a serious “drug problem” (A. 36). 
Indeed, the police officer who was the State’s chief witness 
had recently appeared on local television on a program 
devoted to violation of the drug abuse laws (A. 36). Peti­
tioner’s motions to quash the trial venire on the ground 
that blacks had been systematically excluded and for a 
change of venue or continuance on the ground of pretrial 
publicity, furthermore, alerted the trial judge to the possi­
bility that prospective jurors might be prejudiced against 
him (A. 12, 15).

This Court has itself recognized that inquiries of the 
nature sought by petitioner are essential to the guarantee of 
an impartial trial. In Swain v. Alabama, 380 U.S. 202, 221 
(1965), the Court noted that the influence of race on jurors 
is widely explored during voir dire and “that the fairness of 
trial by jury requires no less.” And in Aldridge v. United 
States, 382 U.S. 308, 310 (1931), this Court reversed a con­
viction on the ground that the refusal of a federal trial 
judge to ask prospective jurors a question relative to racial 
prejudice in a case o f a black defendant who was charged 
with shooting a white policeman violated “ the essential 
demands of fairness.” Federal courts have consistently held 
that a criminal defendant has a right to examine jurors 
specifically with respect to racial prejudice,23 and such ques­
tions have been widely approved by state courts.24

23United States v. Carter, 440 F.2d 1132 (6th Cir. 1971); United 
States v. Gore, 435 F.2d 1110 (4th Cir. 1970); King v. United States, 
362 F.2d 968 (D.C. Cir. 1966); Frasier v. United States, 267 F.2d 
62 (1st Cir. 1959); Smith v. United States, 262 F.2d 50 (4th Cir.— 
1959); United States v. Dennis, 183 F.2d 201, 227, n. 35 (2d Cir.), 
a ff’d  341 U.S. 494 (1951).

24Gholston v. State, 221 Ala. 556, 130 So. 69 (1930); State v. 
Higgs, 143 Conn. 138, 120 A.2d 152 (1956); Finder v. State, 27 
Ha. 370, 8 So. 837 (1891); Herndon v. State, 178 Ga. 832, 174 
S.E. 597 (1934); State v. Jones, 175 La. 1014, 144 So. 899 (1932); 
Giles v. State, 229 Md. 370, 183 A.2d 359 (1962); Owens v. State,
111 Miss. 488, 171 So. 345 (1930); State v. Pyle, 343 Mo. 876, 123 
S.W.2d 166 (1938); Johnson v. State, 88 Neb. 565, 130 N.W. 282



17

The right to conduct an inquiry into whether the jurors 
have been prejudiced by pretrial publicity is implicit in the 
decisions of this Court. Irvin v. Dowd, supra; Rideau v. 
Louisiana, supra-, Sheppard v. Maxwell, supra. Unless there 
had been such a voir dire examination in these cases, this 
Court would have been completely unable to assess the 
impact of the pretrial publicity on the impartiality of the 
jurors. And a defendant who has a right to a hearing to 
show that he is entitled to a change of venue because of 
pretrial publicity surely must also be entitled to show that 
a particular juror is not impartial for the same reason. 
Groppi v. Wisconsin, supra,25

In affirming petitioner’s conviction, the South Carolina 
Supreme Court held that the trial judge did not abuse his 
discretion in refusing to examine the jurors as requested in 
view of the fact that petitioner “ failed to carry the burden 
of showing that [the] questions should have been asked to 
assure a fair and impartial jury” (A. 102).26 But the judge 
was fully aware of petitioner’s race, the nature of the pros­
ecution, the existence of pretrial publicity, and the pro­
posed questions were reasonably designed to disclose the 
prejudices o f jurors.27 Under the circumstances, the limita­

(1911); People v. Decker, 157 N.Y. 186, 51 N.E. 1018 (1898); State 
v. McAfee, 64 N.C. 339 (1870); Fendrick v. State, 39 Tex. Cr. 147, 
45 S.W. 589 (1898).

25 See ABA PROJECT STANDARDS FOR CRIMINAL JUSTICE, 
supra, n. 6 at 130-135; Silverthorne v. United States, supra; Marson 
v. United States, 203 F.2d 904 (6th Cir. 1953).

26The court did not indicate what kind of a showing a defendant 
must make before being permitted to make inquiries with respect to 
race or pretrial publicity. Although it is clear under South Carolina 
law that in examining prospective jurors on voir dire it is within the 
discretion of the trial judge to go beyond the questions that are 
required by § 38-202 S. C. CODE (1962), State v. Peterson, 255 S. C. 
579, 180 S.Ed.2d 341 (1871); State v. Britt, 237 S. C. 293, 117 
S.Ed. 379 (1960), the cases do not establish any standards for the 
exercise of that discretion.

27See United States v. Gore, 435 F.2d 1110 (4th Cir. 1970). In 
this case, the Fourth Circuit rejected the argument that this Court’s



18

tion o f the voir dire examination by the court deprived 
petitioner of the only means by which he could enforce his 
constitutional right to challenge for cause jurors who were 
not impartial towards him. Although the extent of exami­
nation to which a defendant is entitled and the manner in 
which it is to be conducted, i.e., by court, counsel or both, 
must fee necessarily be left largely to the discretion of the 
trial judge depending on the circumstances of the particular 
case,28 petitioner submits that minimal constitutional stan­
dards for the effective exercise of his right to an impartial 
jury required the trial judge to have permitted him some 
opportunity to probe for prejudice resulting from racial 
bias or pretrial publicity.

CONCLUSION

For the foregoing reasons, petitioner’s conviction violated 
his right to be tried by an impartial jury, guaranteed by the 
Sixth and Fourteenth Amendments to the United States

decision in Aldridge v. United States, supra, should be limited to 
cases of interracial violence. The court held that the refusal to ask 
questions concerning racial bias could not be considered harmless 
error where, as in the present case, the defendant was black, the 
government’s witnesses were white, and the outcome depended on 
weighing credibility. Id. at 1112.

28See ABA PROJECT ON STANDARDS FOR CRIMINAL JUS­
TICE, Trial by Jury, §2.4 (Supp. 1968), giving the judge primary 
responsibility to conduct a voir dire examination but authorizing him 
to “permit such additional questions by the defendant or his attorney 
and the prosecuting attorney as he deems reasonable or proper.”

Since counsel for petitioner did not seek to conduct the voir dire 
examination himself, this case raises no issue as to who should con­
duct the interrogation. Similarly, as the dissenting judges on the 
South Carolina Supreme Court recognized, the only question here 
is whether any inquiry into racial prejudice or the effect of pretrial 
publicity should be permitted, and not the extent of such inquiry.



19

Constitution. The judgment of the Supreme Court of 
South Carolina should be reversed and the case remanded 
for a new trial.

Respectfully submitted,

JACK GREENBERG
JAMES M. NABRIT, til
JONATHAN SHAPIRO 

10 Columbus Circle 
New York, New York 10019

MORDECAI C. JOHNSON
JOHN A. GAINES 

P.O. Box 743 
Florence, South Carolina

ANTHONY G. AMSTERDAM 
Stanford University Law School 
Stanford, California 94305

Attorneys for Petitioner