Impartial Jury

The requirement of an impartial jury is secured not only by the Sixth Amendment, which is as applicable to the states as to the Federal Government,132 but also by the Due Process and Equal Protection Clauses of the Fourteenth Amendment,133 and perhaps by the Due Process Clause of the Fifth Amendment. In addition, the Court’s has directed its supervisory power over the federal system to the issue.134 Even before the Court extended the right to a jury trial to state courts, it was firmly established that, if a state chose to provide juries, the juries had to be impartial.135

Impartiality is a two-fold requirement. First, “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.”136 This requirement applies only to jury panels or venires from which petit juries are chosen, and not to the composition of the petit juries themselves.137 “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.”138 Further, once a plaintiff demonstrates a prima facie violation, the defendant faces a formidable burden: the jury selection process may be sustained under the Sixth Amendment only if those aspects of the process that result in the disproportionate exclusion of a distinctive group, such as exemption criteria, “manifestly and primarily” advance a “significant state interest.”139 Thus, in one case the Court voided a selection system under which no woman would be called for jury duty unless she had previously filed a written declaration of her desire to be subject to service, and, in another it invalidated a state selection system granting women who so requested an automatic exemption from jury service.140

Second, there must be assurance that the jurors chosen are unbiased, i.e., willing to decide the case on the basis of the evidence presented. The Court has held that in the absence of an actual showing of bias, a defendant in the District of Columbia is not denied an impartial jury when he is tried before a jury composed primarily of government employees.141 A violation of a defendant’s right to an impartial jury does occur, however, when the jury or any of its members is subjected to pressure or influence which could impair freedom of action; the trial judge should conduct a hearing in which the defense participates to determine whether impartiality has been undermined.142 Exposure of the jury to possibly prejudicial material and disorderly courtroom activities may deny impartiality and must be inquired into.143 Private communications, contact, or tampering with a jury, or the creation of circumstances raising the dangers thereof, is not to be condoned.144 When the locality of the trial has been saturated with publicity about a defendant, so that it is unlikely that he can obtain a disinterested jury, he is constitutionally entitled to a change of venue.145 It is undeniably a violation of due process to subject a defendant to trial in an atmosphere of mob or threatened mob domination.146

Because it is too much to expect that jurors can remain uninfluenced by evidence they receive even though they are instructed to use it for only a limited purpose and to disregard it for other purposes, the Court will not permit a confession to be submitted to the jury without a prior determination by the trial judge that it is admissible. A defendant is denied due process, therefore, if he is convicted by a jury that has been instructed to first determine the voluntariness of a confession and then to disregard the confession if it is found to be inadmissible.147 Similarly invalid is a jury instruction in a joint trial to consider a confession only with regard to the defendant against whom it is admissible, and to disregard that confession as against a co-defendant which it implicates.148

Nonetheless, there are limits on the extent to which an inquiry can be made into whether a criminal defendant’s right to a jury trial has been denied by a biased jury. With origins dating from the English common law, a rule of evidence has been adopted by the federal rules of evidence149 and by the vast majority of the states150 that forbids the “impeachment” or questioning of a verdict by inquiring into the internal deliberations of the jury.151 The “no impeachment” rule, which aims to promote “full and vigorous discussion” by jurors and to preserve the “stability” of jury verdicts, has limited the ability of criminal defendants to argue that a jury’s internal deliberations demonstrated bias amounting to a deprivation of the right to a jury trial.152 Indeed, the Court has held that the Sixth Amendment justifies an exception to the no impeachment rule in only the “gravest and most important cases.”153 As a result, the Court has rejected a Sixth Amendment exception to the rule when evidence existed that jurors were under the influence of alcohol and drugs during the trial.154 Likewise, the Court concluded that the no-impeachment rule prevented evidence from being introduced indicating that a jury forewoman had failed to disclose a prodefendant bias during jury selection (voir dire) and allegedly influenced the jury with such bias.155 In the Court’s view, three safeguards—(1) the voir dire process, (2) the ability for the court and counsel to observe the jury during trial, and (3) the potential for jurors to report untoward behavior to the court before rendering a verdict— adequately protect Sixth Amendment interests while preserving the values underlying the no impeachment rule.156

However, in Pena-Rodriguez v. Colorado, the Court for the first time recognized a Sixth Amendment exception to the no-impeachment rule.157 In that case, a criminal defendant contended that his conviction by a Colorado jury for harassment and unlawful sexual contact should be overturned on constitutional grounds because evidence from two jurors revealed that a fellow juror had expressed anti-Hispanic bias toward the petitioner and his alibi witness during deliberations.158 The Court agreed, concluding that where a juror makes a “clear statement” indicating that he relied on “racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way . . . .”159 In so holding, Pena-Rodriguez emphasized the “imperative to purge racial prejudice from the administration of justice” that underlies the Fourteenth Amendment, which, in turn, makes the Sixth Amendment applicable to the states.160 Contrasting the instant case from earlier rulings that involved “anomalous behavior from a single jury—or juror—gone off course,” the Court noted that racial bias in the judicial system was a “familiar and recurring evil” that required the judiciary to prevent “systematic injury to the administration of justice.”161 Moreover, the Court emphasized “pragmatic” rationales for its holding, noting that other checks on jury bias, such as questioning during voir dire or jurors reporting inappropriate statements during the course of deliberations, unlikely would disclose racial bias.162

Inquiries into jury basis have arisen in the context of the imposition of the death penalty. In Witherspoon v. Illinois,163 the Court held that the exclusion in capital cases of jurors conscientiously scrupled about capital punishment, without inquiring whether they could consider the imposition of the death penalty in the appropriate case, violated a defendant’s constitutional right to an impartial jury. “A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.”164 A jury, the Court wrote, must “express the conscience of the community on the ultimate question of life or death,” and the automatic exclusion of all with generalized objections to the death penalty “stacked the deck” and made of the jury a tribunal “organized to return a verdict of death.”165 A court may not refuse a defendant’s request to examine potential jurors to determine whether they would vote automatically to impose the death penalty; general questions about fairness and willingness to follow the law are inadequate.166

In Wainwright v. Witt, the Court held that the proper standard for exclusion is “whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ”167 Thus, to be excluded, a juror need not indicate that he would “automatic[ally]” vote against the death penalty, nor need his “bias be proved with ‘unmistakable clarity.’ ”168 Instead, a juror may be excused for cause “where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.”169 Persons properly excludable under Witherspoon may also be excluded from the guilt/innocence phase of a bifurcated capital trial.170 It had been argued that to exclude such persons from the guilt/innocence phase would result in a jury somewhat more predisposed to convict, and that this would deny the defendant a jury chosen from a fair cross-section. The Court rejected this argument, concluding that “it is simply not possible to define jury impartiality . . . by reference to some hypothetical mix of individual viewpoints.”171 Moreover, the state has “an entirely proper interest in obtaining a single jury that could impartially decide all of the issues in [a] case,” and need not select separate panels and duplicate evidence for the two distinct but interrelated functions.172 For the same reasons, there is no violation of the right to an impartial jury if a defendant for whom capital charges have been dropped is tried, along with a codefendant still facing capital charges, before a “death qualified” jury.173

In Uttecht v. Brown,174 the Court summed up four principles that it derived from Witherspoon and Witt: “First a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. Second, the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes. Third, to balance these interests, a juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible. Fourth, in determining whether the removal of a potential juror would vindicate the State’s interest without violating the defendant’s right, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts.”175 If there is ambiguity in a prospective juror’s statement, a court is “entitled to resolve it in favor of the State.”176

Exclusion of one juror qualified under Witherspoon constitutes reversible error, and the exclusion may not be subjected to harmless error analysis.177 However, a court’s error in refusing to dismiss for cause a prospective juror prejudiced in favor of the death penalty does not deprive a defendant of his right to trial by an impartial jury if he is able to exclude the juror through exercise of a peremptory challenge.178 The relevant inquiry is “on the jurors who ultimately sat,” the Court declared, rejecting as overly broad the assertion in Gray that the focus instead should be on “ ‘whether the composition of the jury panel as a whole could have been affected by the trial court’s error.’ ”179

It is the function of the voir dire to give the defense and the prosecution the opportunity to inquire into, or have the trial judge inquire into, possible grounds of bias or prejudice that potential jurors may have, and to acquaint the parties with the potential jurors.180 It is good ground for challenge for cause that a juror has formed an opinion on the issue to be tried, but not every opinion which a juror may entertain necessarily disqualifies him. The judge must determine whether the nature and strength of the opinion raise a presumption against impartiality.181 It suffices for the judge to question potential jurors about their ability to put aside what they had heard or read about the case, listen to the evidence with an open mind, and render an impartial verdict; the judge’s refusal to go further and question jurors about the contents of news reports to which they had been exposed did not violate the Sixth Amendment.182

Under some circumstances, it may be constitutionally required that questions specifically directed to the existence of racial bias must be asked. Thus, in a situation in which defendant, a black man, alleged that he was being prosecuted on false charges because of his civil rights activities in an atmosphere perhaps open to racial appeals, prospective jurors must be asked about their racial prejudice, if any.183 A similar rule applies in some capital trials, where the risk of racial prejudice “is especially serious in light of the complete finality of the death sentence.” A defendant accused of an interracial capital offense is entitled to have prospective jurors informed of the victim’s race and questioned as to racial bias.184 But in circumstances not suggesting a significant likelihood of racial prejudice infecting a trial, as when the facts are merely that the defendant is black and the victim white, the Constitution is satisfied by a more generalized but thorough inquiry into the impartiality of the veniremen.185

Although government is not constitutionally obligated to allow peremptory challenges,186 typically a system of peremptory challenges has existed in criminal trials, in which both prosecution and defense may, without stating any reason, excuse a certain number of prospective jurors.187 Although, in Swain v. Alabama,188 the Court held that a prosecutor’s purposeful exclusion of members of a specific racial group from the jury would violate the Equal Protection Clause, it posited so difficult a standard of proof that defendants could seldom succeed. The Swain standard of proof was relaxed in Batson v. Kentucky,189 with the result that a defendant may establish an equal protection violation resulting from a prosecutor’s use of peremptory challenges to systematically exclude blacks from the jury.190 A violation can occur whether or not the defendant and the excluded jurors are of the same race.191 Racially discriminatory use of peremptory challenges does not, however, constitute a violation of the Sixth Amendment, the Court ruled in Holland v. Illinois.192 The Sixth Amendment “no more forbids the prosecutor to strike jurors on the basis of race than it forbids him to strike them on the basis of innumerable other generalized characteristics.”193 To rule otherwise, the Court reasoned, “would cripple the device of peremptory challenge” and thereby undermine the Amendment’s goal of “impartiality with respect to both contestants.”194

The restraint on racially discriminatory use of peremptory challenges is now a two-way street. The Court ruled in 1992 that a criminal defendant’s use of peremptory challenges to exclude jurors on the basis of race constitutes “state action” in violation of the Equal Protection Clause.195 Disputing the contention that this limitation would undermine “the contribution of the peremptory challenge to the administration of justice,” the Court nonetheless asserted that such a result would in any event be “too high” a price to pay. “It is an affront to justice to argue that a fair trail includes the right to discriminate against a group of citizens based upon their race.”196 It followed, therefore, that the limitation on peremptory challenges does not violate a defendant’s right to an impartial jury. Although a defendant has “the right to an impartial jury that can view him without racial animus,” this means that “there should be a mechanism for removing those [jurors] who would be incapable of confronting and suppressing their racism,” not that the defendant may remove jurors on the basis of race or racial stereotypes.197

Footnotes

132
Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. Louisiana, 379 U.S. 466 (1965); Parker v. Gladden, 385 U.S. 363 (1966); Witherspoon v. Illinois, 391 U.S. 510 (1968); Gonzales v. Beto, 405 U.S. 1052 (1972). back
133
Thus, it violates the Equal Protection Clause to exclude African-Americans from grand and petit juries, Strauder v. West Virginia, 100 U.S. 303 (1880); Alexander v. Louisiana, 405 U.S. 625 (1972), whether defendant is or is not an African-American, Peters v. Kiff, 407 U.S. 493 (1972), and exclusion of potential jurors because of their national ancestry is unconstitutional, at least where defendant is of that ancestry as well, Hernandez v. Texas, 347 U.S. 475 (1954); Castaneda v. Partida, 430 U.S. 482 (1977). back
134
In the exercise of its supervisory power over the federal courts, the Court has permitted any defendant to challenge the arbitrary exclusion from jury service of his own or any other class. Glasser v. United States, 315 U.S. 60, 83–87 (1942); Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946); Ballard v. United States, 329 U.S. 187 (1946). In Taylor v. Louisiana, 419 U.S. 522 (1975), and Duren v. Missouri, 439 U.S. 357 (1979), male defendants were permitted to challenge the exclusion of women as a Sixth Amendment violation. back
135
Turner v. Louisiana, 379 U.S. 466 (1965). back
136
Taylor v. Louisiana, 419 U.S. 522, 528 (1975). See also Williams v. Florida, 399 U.S. 78, 100 (1970); Brown v. Allen, 344 U.S. 443, 474 (1953). In Fay v. New York, 332 U.S. 261 (1947), and Moore v. New York, 333 U.S. 565 (1948), the Court in 5-to-4 decisions upheld state use of “blue ribbon” juries from which particular groups, such as laborers and women, had been excluded. With the extension of the jury trial provision and its fair cross section requirement to the States, the opinions in these cases must be considered tenuous, but the Court has reiterated that defendants are not entitled to a jury of any particular composition. Taylor, 419 U.S. at 538. Congress has implemented the constitutional requirement by statute in federal courts by the Federal Jury Selection and Service Act of 1968, Pub. L. 90–274, 82 Stat. 53, 28 U.S.C. §§ 1861et seq. back
137
Lockhart v. McCree, 476 U.S. 162 (1986). “We have never invoked the fair cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large.” 476 U.S. at 173. The explanation is that the fair cross-section requirement “is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does).” Holland v. Illinois, 493 U.S. 474, 480 (1990) (emphasis original). back
138
Duren v. Missouri, 439 U.S. 357, 364 (1979). To show that underrepresentation resulted from systematic exclusion requires rigorous evidence beyond merely pointing to a single factor or a host of factors that might have caused fewer members of a distinct group to have been included. Berghuis v. Smith, 559 U.S. ___, No. 08–1402, slip op. (2010). back
139
439 U.S. at 367–68. back
140
Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439 U.S. 357 (1979). back
141
Frazier v. United States, 335 U.S. 497 (1948); Dennis v. United States, 339 U.S. 162 (1950). On common-law grounds, the Court in Crawford v. United States, 212 U.S. 183 (1909), disqualified such employees, but a statute removing the disqualification because of the increasing difficulty in finding jurors in the District of Columbia was sustained in United States v. Wood, 299 U.S. 123 (1936). back
142
Remmer v. United States, 350 U.S. 377 (1956) (attempted bribe of a juror reported by him to authorities); Smith v. Phillips, 455 U.S. 209 (1982) (during trial one of the jurors had been actively seeking employment in the District Attorney’s office). back
143
E.g., Irvin v. Dowd, 366 U.S. 717 (1961); Sheppard v. Maxwell, 384 U.S. 333 (1966). Exposure of the jurors to knowledge about the defendant’s prior criminal record and activities is not alone sufficient to establish a presumption of reversible prejudice, but on voir dire jurors should be questioned about their ability to judge impartially. Murphy v. Florida, 421 U.S. 794 (1975). The Court indicated that under the same circumstances in a federal trial it would have overturned the conviction pursuant to its supervisory power. Id. at 797–98, citing Marshall v. United States, 360 U.S. 310 (1959). Essentially, the defendant must make a showing of prejudice into which the court may then inquire. Chandler v. Florida, 449 U.S. 560, 575, 581 (1981); Smith v. Phillips, 455 U.S. 209, 215–18 (1982); Patton v. Yount, 467 U.S. 1025 (1984). back
144
Remmer v. United States, 347 U.S. 227 (1954). See Turner v. Louisiana, 379 U.S. 466 (1965) (placing jury in charge of two deputy sheriffs who were principal prosecution witnesses at defendant’s jury trial denied him his right to an impartial jury); Parker v. Gladden, 385 U.S. 363 (1966) (influence on jury by prejudiced bailiff). Cf. Gonzales v. Beto, 405 U.S. 1052 (1972). back
145
Irvin v. Dowd, 366 U.S. 717 (1961) (felony); Rideau v. Louisiana, 373 U.S. 723 (1963) (felony); Groppi v. Wisconsin, 400 U.S. 505 (1971) (misdemeanor). Important factors to be considered, however, include the size and characteristics of the community in which the crime occurred; whether the publicity was blatantly prejudicial; the time elapsed between the publicity and the trial; and whether the jurors’ verdict supported the theory of prejudice. Skilling v. U.S., No. 08–1394, slip op. at 16–18 (June 24, 2010). back
146
Frank v. Mangum, 237 U.S. 309 (1915); Irvin v. Dowd, 366 U.S. 717 (1961); Sheppard v. Maxwell, 384 U.S. 333 (1966). back
147
Jackson v. Denno, 378 U.S. 368 (1964) (overruling Stein v. New York, 346 U.S. 156 (1953)). back
148
Bruton v. United States, 391 U.S. 123 (1968) (overruling Delli Paoli v. United States, 352 U.S. 232 (1957)). The rule applies to the states. Roberts v. Russell, 392 U.S. 293 (1968). But see Nelson v. O’Neil, 402 U.S. 622 (1971) (co-defendant’s out-of-court statement is admissible against defendant if co-defendant takes the stand and denies having made the statement). back
149
See FED. R. EVID. 606(b)(1) (“During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.”). back
150
See Pena-Rodriguez v. Colorado, 580 U.S. ___, No. 15–606, slip op. at 9 (2017) (noting that 42 jurisdictions follow the federal rule). back
151
The no-impeachment rule does have three central exceptions, allowing a juror to testify about (1) extraneous prejudicial information improperly brought to the jury’s attention; (2) outside influences brought to bear on any juror; and (3) a mistake made in entering the verdict on the verdict form. See FED. R. EVID. 606(b)(2). As a result, the rule prohibits all juror testimony excepting for when the jury considers prejudicial extraneous evidence or is subject to other outside influence. See Pena-Rodriguez, slip. op at 8. back
152
See Pena-Rodriguez, slip. op at 11. back
153
See McDonald v. Pless, 238 U.S. 264, 269 (1915). back
154
See Tanner v. United States, 483 U.S. 107, 127 (1987). back
155
See Warger v. Shauers, 574 U.S. ___, No. 13–517, slip op. at 3–4 (2014). back
156
See Tanner, 483 U.S. at 127. In addition, while the no-impeachment rule, by its very nature, prohibits testimony by jurors, evidence of misconduct other than juror testimony can be used to impeach the verdict. Id. back
157
See Pena-Rodriguez, slip. op at 17. back
158
Id. at 3–4. back
159
Id. at 17. The Court noted that “[n]ot every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry,” but that instead the no-impeachment rule does not govern when a juror makes a statement exhibiting “overt racial bias” that was a “significant motivating factor in the juror’s vote to convict.” Id. If the Pena-Rodriguez exception to the no-impeachment rule applies, the trial court must examine the underlying evidence and determine whether a retrial is necessary in “light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.” Id. back
160
Id. at 13. back
161
Id. at 15–16. back
162
Id. (“[T]his Court has noted the dilemma faced by trial court judges and counsel in deciding whether to explore potential racial bias at voir dire . . . The stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the court of juror deliberations.”). back
163
391 U.S. 510 (1968). back
164
391 U.S. at 519. back
165
391 U.S. at 519, 521, 523. The Court thought the problem went only to the issue of the sentence imposed and saw no evidence that a jury from which death-scrupled persons had been excluded was more prone to convict than were juries on which such person sat. Cf. Bumper v. North Carolina, 391 U.S. 543, 545 (1968). Witherspoon was given added significance when, in Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976), the Court held mandatory death sentences unconstitutional and ruled that the jury as a representative of community mores must make the determination as guided by legislative standards. See also Adams v. Texas, 448 U.S. 38 (1980) (holding Witherspoon applicable to bifurcated capital sentencing procedures and voiding a statute permitting exclusion of any juror unable to swear that the existence of the death penalty would not affect his deliberations on any issue of fact). back
166
Morgan v. Illinois, 504 U.S. 719 (1992). back
167
469 U.S. 412, 424 (1985), quoting Adams v. Texas, 448 U.S. 38, 45 (1980). back
168
469 U.S. at 424. Accord, Darden v. Wainwright, 477 U.S. 168 (appropriateness of exclusion should be determined by context, including excluded juror’s understanding based on previous questioning of other jurors). back
169
See Witt, 469 U.S. at 425–26. back
170
Lockhart v. McCree, 476 U.S. 162 (1986). back
171
476 U.S. at 183. back
172
476 U.S. at 180. back
173
Buchanan v. Kentucky, 483 U.S. 402 (1987). back
174
551 U.S. 1 (2007). back
175
551 U.S. at 9 (citations omitted). In Uttecht, the Court reasoned that deference was owed to trial courts because the lower court is in a “superior position to determine the demeanor and qualifications of a potential juror.” See id. at 22. In White v. Wheeler, the Court recognized that a trial judge’s decision to excuse a prospective juror in a death penalty case was entitled to deference even when the judge does not make the decision to excuse the juror contemporaneously with jury selection (voir dire). See 577 U.S. ___, No. 14–1372, slip op. at 7–8 (2015) (per curiam). The Court explained that the deference due under Uttecht to a trial judge’s decision was not limited to the judge’s evaluation of a juror’s demeanor, but extended to a trial judge’s consideration of “the substance of a juror’s response.” See id. at 8. When a trial judge “chooses to reflect and deliberate” over the record regarding whether to excuse a juror for a day following the questioning of the prospective juror, that judge’s decision should be “commended” and is entitled to substantial deference. See id. at 8. back
176
See Uttecht, 551 U.S. at 7 (internal citations omitted). back
177
Gray v. Mississippi, 481 U.S. 648 (1987). back
178
Ross v. Oklahoma, 487 U.S. 81 (1987). The same rule applies in the federal setting. United States v. Martinez-Salazar, 528 U.S. 304 (2000). back
179
487 U.S. at 86, 87. back
180
Lewis v. United States, 146 U.S. 370 (1892); Pointer v. United States, 151 U.S. 396 (1894). back
181
Reynolds v. United States, 98 U.S. (8 Otto) 145 (1879). See Witherspoon v. Illinois, 391 U.S. 510, 513–15, 522 n.21 (1968). back
182
Mu’Min v. Virginia, 500 U.S. 415 (1991). back
183
Ham v. South Carolina, 409 U.S. 524 (1973). back
184
Turner v. Murray, 476 U.S. 28 (1986). The quotation is from a section of Justice White’s opinion not adopted as the opinion of the Court. Id. at 35. back
185
Ristaino v. Ross, 424 U.S. 589 (1976). The Court noted that under its supervisory power it would require a federal court faced with the same circumstances to propound appropriate questions to identify racial prejudice if requested by the defendant. Id. at 597 n.9. See Aldridge v. United States, 283 U.S. 308 (1931). But see Rosales-Lopez v. United States, 451 U.S. 182 (1981), in which the trial judge refused a defense request to inquire about possible bias against Mexicans. A plurality apparently adopted a rule that, all else being equal, the judge should necessarily inquire about racial or ethnic prejudice only in cases of violent crimes in which the defendant and victim are members of different racial or ethnic groups, id. at 192, a rule rejected by two concurring Justices. Id. at 194. Three dissenting Justices thought the judge must always ask when defendant so requested. Id. at 195. back
186
“This Court has long recognized that peremptory challenges are not of federal constitutional dimension.” Rivera v. Illinois, 129 S. Ct. 1446, 1450 (2009) (internal quotation marks omitted) (state trial court’s erroneous denial of a defendant’s peremptory challenge does not warrant reversal of conviction if all seated jurors were qualified and unbiased). back
187
Cf. Stilson v. United States, 250 U.S. 583, 586 (1919), holding that it is no violation of the guarantee to limit the number of peremptory challenges to each defendant in a multi-party trial. back
188
380 U.S. 202 (1965). back
189
476 U.S. 79 (1986). back
190
See Fourteenth Amendment discussion of “Equal Protection and Race,” infra. back
191
Powers v. Ohio, 499 U.S. 400 (1991) (defendant has standing to raise equal protection rights of excluded juror of different race). back
192
493 U.S. 474 (1990). But see Trevino v. Texas, 503 U.S. 562 (1992) (claim of Sixth Amendment violation resulting from racially discriminatory use of peremptory challenges treated as sufficient to raise equal protection claim under Swain and Batson). back
193
493 U.S. at 487. back
194
493 U.S. at 484. As a consequence, a defendant who uses a peremptory challenge to correct the court’s error in denying a for-cause challenge may have no Sixth Amendment cause of action. Peremptory challenges “are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.” Ross v. Oklahoma, 487 U.S. 81, 88 (1987). Similarly, there is no due process violation, at least where state statutory law requires use of peremptory challenges to cure erroneous refusals by the court to excuse jurors for cause. “It is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise.” Id. back
195
Georgia v. McCollum, 505 U.S. 42 (1992). back
196
505 U.S. at 57. back
197
505 U.S. at 58. back