Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It has been established since Strauder v. West Virginia 1 that exclusion of an identifiable racial or ethnic group from a grand jury 2 that indicts a defendant or a from petit jury 3 that tries him, or from both, 4 denies a defendant of the excluded race equal protection and necessitates reversal of his conviction or dismissal of his indictment. 5 Even if the defendant’s race differs from that of the excluded jurors, the Court held, the defendant has third-party standing to assert the rights of jurors excluded on the basis of race. 6
Defendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection. People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion. 7 Thus, persons may bring actions seeking affirmative relief to outlaw discrimination in jury selection, instead of depending on defendants to raise the issue. 8
A prima facie case of deliberate and systematic exclusion is made when it is shown that no black citizens have served on juries for a period of years 9 or when it is shown that the number of black jurors who served was grossly disproportionate to the percentage of black citizens eligible for jury service. 10 Once this prima facie showing has been made, the burden is upon the jurisdiction to prove that it had not practiced discrimination; it is not adequate that jury selection officials testify under oath that they did not discriminate. 11 Although the Court in connection with a showing of great disparities in the racial makeup of jurors called has voided certain practices that made discrimination easy to accomplish, 12 it has not outlawed discretionary selection pursuant to general standards of educational attainment and character that can be administered fairly. 13 Similarly, it declined to rule that African-Americans must be included on all-white jury commissions that administer the jury selection laws in some states. 14
In Swain v. Alabama, 15 African Americans regularly appeared on jury venires but no African American had actually served on a jury. It appeared that the absence was attributable to the action of the prosecutor in peremptorily challenging all potential African American jurors, but the Court refused to set aside the conviction. The use of peremptory challenges to exclude the African Americans in the particular case was permissible, the Court held, regardless of the prosecutor’s motive, although it indicated that the consistent use of such challenges to remove African Americans would be unconstitutional. Because the record did not disclose that the prosecution was responsible solely for the fact that no African American had ever served on a jury and that some exclusions were not the result of defense peremptory challenges, the defendant’s claims were rejected.
The Swain holding as to the evidentiary standard was overruled in Batson v. Kentucky, the Court ruling that
a defendant may establish a prima facie case of purposeful [racial] discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s [own] trial. 16 To rebut this showing, the prosecutor
must articulate a neutral explanation related to the particular case, but the explanation
need not rise to the level justifying exercise of a challenge for cause. 17 In fact,
[a]lthough the prosecutor must present a comprehensible reason, '[t]he [rebuttal] does not demand an explanation that is persuasive, or even plausible'; so long as the reason is not inherently discriminatory, it suffices. 18 Such a rebuttal having been offered,
the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating 'the persuasiveness of the justification' proffered by the prosecutor, but the 'ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.' 19
On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous, 20 but, on more than one occasion, the Supreme Court has reversed trial courts' findings of no discriminatory intent. 21 The Court has also extended Batson to apply to racially discriminatory use of peremptory challenges by private litigants in civil litigation, 22 and by a defendant in a criminal case, 23 the principal issue in these cases being the presence of state action, not the invalidity of purposeful racial discrimination.
Discrimination in the selection of grand jury foremen presents a closer question, the answer to which depends in part on the responsibilities of a foreman in the particular system challenged. Thus, the Court
assumed without deciding that discrimination in selection of foremen for state grand juries would violate equal protection in a system in which the judge selected a foreman to serve as a thirteenth voting juror, and that foreman exercised significant powers. 24 That situation was distinguished, however, in a due process challenge to the federal system, where the foreman’s responsibilities were
essentially clerical and where the selection was from among the members of an already chosen jury. 25
In McCleskey v. Kemp 26 the Court rejected an equal protection claim of a black defendant who received a death sentence following conviction for murder of a white victim, even though a statistical study showed that black defendants charged with murdering white people were more than four times as likely to receive a death sentence in the state than were defendants charged with killing black people. The Court distinguished Batson v. Kentucky by characterizing capital sentencing as
fundamentally different from jury venire selection; consequently, reliance on statistical proof of discrimination is less rather than more appropriate. 27
Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. 28 Also, the Court noted, there is not the same opportunity to rebut a statistical inference of discrimination; jurors may not be required to testify as to their motives, and for the most part prosecutors are similarly immune from inquiry. 29