476 U.S. 79 (1986)
Petitioner, a black man, was indicted in Jefferson Circuit Court on two counts of second-degree burglary and one count of receipt of stolen goods.1 On the first day of trial, the judge conducted voir dire examination of the venire.2 He excused certain jurors for cause and permitted the parties to exercise peremptory challenges.3 The prosecutor used his peremptory challenges to strike all four black persons on the venire.4 A jury composed only of white persons was selected.5
Defense counsel moved to discharge the jury before it was sworn.6 The motion claimed that the prosecutor's removal of the black veniremen violated petitioner's rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community and under the Fourteenth Amendment to equal protection of the laws.7 Counsel requested a hearing on his motion.8 Without expressly ruling on the request for a hearing, the trial judge observed that the parties were entitled to use their peremptory challenges to strike anybody they wanted to.9 The judge denied the motion.10
The jury convicted petitioner on both counts.11 He was sentenced to twenty years' imprisonment on each count with the sentences to run concurrently.12 On appeal to the Supreme Court of Kentucky, petitioner argued that the prosecutor's use of peremptory challenges violated his right to trial by an impartial jury under the Sixth and Fourteenth Amendments.13 Petitioner also contended that the facts showed the prosecutor had engaged in a pattern of discriminatory challenges.14 The Supreme Court of Kentucky affirmed the conviction.15 It relied on Swain v. Alabama and held that petitioner had failed to show that the prosecutor had engaged in a pattern of discrimination in the selection of jurors in a series of cases.16
The Supreme Court granted certiorari.17
Whether a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial?18
The Equal Protection Clause of the Fourteenth Amendment forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.19 To establish a prima facie case, the defendant must show that he is a member of a cognizable racial group.20 The prosecutor must have exercised peremptory challenges to remove from the venire members of the defendant's race.21 The defendant must also show that these facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race.22
Yes. Petitioner, a black man, was indicted in Jefferson Circuit Court on two counts of second-degree burglary and one count of receipt of stolen goods. On the first day of trial, the judge conducted voir dire examination of the venire. He excused certain jurors for cause and permitted the parties to exercise peremptory challenges. The prosecutor used his peremptory challenges to strike all four black persons on the venire. A jury composed only of white persons was selected.
Defense counsel moved to discharge the jury before it was sworn. The motion claimed that the prosecutor's removal of the black veniremen violated petitioner's rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community and under the Fourteenth Amendment to equal protection of the laws. Counsel requested a hearing on his motion. Without expressly ruling on the request for a hearing, the trial judge observed that the parties were entitled to use their peremptory challenges to strike anybody they wanted to. The judge denied the motion.
The jury convicted petitioner on both counts. He was sentenced to twenty years' imprisonment on each count with the sentences to run concurrently. On appeal to the Supreme Court of Kentucky, petitioner argued that the prosecutor's use of peremptory challenges violated his right to trial by an impartial jury under the Sixth and Fourteenth Amendments. Petitioner also contended that the facts showed the prosecutor had engaged in a pattern of discriminatory challenges. The Supreme Court of Kentucky affirmed the conviction. It relied on Swain v. Alabama and held that petitioner had failed to show that the prosecutor had engaged in a pattern of discrimination in the selection of jurors in a series of cases. The Supreme Court granted certiorari.
The petitioner is a member of a cognizable racial group.23 The prosecutor exercised peremptory challenges to remove all four black persons from the venire.24 These facts and the circumstances raise an inference that the prosecutor used the challenges to exclude on account of race.25 The combination of these factors raises the necessary inference of purposeful discrimination.26
A defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial.27
Related opinions on this issue
Justice White concurs in the opinion and judgment but writes separately to note his continued belief that peremptory challenges should be abolished.28 He agrees that Swain should be overruled to the extent it prevents inquiry into the prosecutor's reasons for striking blacks in a given case.29 White emphasizes that the practice remains widespread and that an opportunity to inquire should be afforded when it occurs.30
He would adhere to prior retroactivity rules for related Sixth Amendment decisions.31 White notes that the presumption of legitimacy with respect to striking black venire persons could be overcome by evidence that over a period of time the prosecution had consistently excluded blacks from petit juries.32
Justice Marshall joins the Court's opinion but would go further and hold that the use of peremptory challenges to exclude jurors on the basis of race is always a violation of equal protection.33 He argues that the decision will not end racial discrimination in jury selection and that the only way to accomplish that goal is by eliminating peremptory challenges entirely.34 Marshall details statistical evidence of the practice's prevalence from multiple jurisdictions and explains why allowing case-by-case challenges will prove illusory.35
He notes that prosecutors can easily assert facially neutral reasons and that trial courts are ill equipped to second-guess those reasons.36 Marshall concludes that only by banning peremptories entirely can such discrimination be ended.37
Joined by Justice Brennan
Justice Stevens concurs in the judgment and in the opinion of the Court except that he does not join Part IV of the opinion.38 He addresses procedural concerns about reaching the equal protection issue despite petitioner's framing of the claim under the Sixth Amendment.39 Stevens explains that the party defending the judgment explicitly rested on the equal protection issue as a controlling basis for affirmance.40
He notes that Kentucky's Assistant Attorney General emphasized the centrality of the equal protection issue at oral argument.41 Stevens concludes that the Court acts wisely in resolving the issue now on the basis of the arguments that have already been fully presented without any special invitation from the Court.42
Whether the facts of this case demonstrate that petitioner made a prima facie showing of purposeful discrimination?43
The facts demonstrate a prima facie case of purposeful discrimination when the prosecutor uses peremptory challenges to strike all black persons on the venire. There are no apparent nonracial reasons for those challenges. This is especially true when the prosecutor refuses to offer any explanation.
Yes. The record shows that the prosecutor used peremptory challenges to strike all four black persons on the venire.44 There were no apparent nonracial reasons for those challenges.45 The combination of these facts and the prosecutor's refusal to offer any explanation for his actions establishes a prima facie case of purposeful discrimination.46 The trial court erred in failing to require the prosecutor to give an explanation for his use of peremptory challenges.47
The facts of this case demonstrate that petitioner made a prima facie showing of purposeful discrimination.48
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Joined by Justice Rehnquist
Chief Justice Burger dissents, arguing that the Court today overrules a portion of Swain v. Alabama that has been the law for over twenty years.49 He contends that the peremptory challenge is a traditional tool that should not be so easily discarded.50 Burger criticizes the Court for reaching an equal protection claim that petitioner expressly declined to raise both in this Court and in the Supreme Court of Kentucky.51
He notes that petitioner disclaimed any reliance on the Equal Protection Clause and pressed only a Sixth Amendment claim.52 Burger concludes that review of an equal protection argument is improper in this Court under established principles.53
Joined by Chief Justice Burger
Justice Rehnquist joins the Chief Justice's dissent and adds that the majority's decision will have a disruptive effect on the criminal justice system.54 He maintains that the Equal Protection Clause does not prohibit the State from using peremptory challenges to strike blacks from the jury in cases involving black defendants so long as the challenges are applied across the board.55 Rehnquist argues that the use of group affiliations as a proxy for potential juror partiality has long been accepted as a legitimate basis for the State's exercise of peremptory challenges.56
He concludes that petitioner failed to make a sufficient showing to overcome the presumption announced in Swain.57
Whether the new rule announced should be applied retroactively to cases pending on direct review or not yet final?58
The new rule announced here should be applied retroactively to cases pending on direct review or not yet final under the principles of Griffith v. Kentucky.59
Yes. The new rule announced here should be applied retroactively to cases pending on direct review or not yet final.60 The Supreme Court has held that new constitutional rules must be applied retroactively to cases pending on direct review or not yet final.61 Griffith v. Kentucky establishes this principle for cases like the present one where the conviction is not yet final.62
The petitioner's case remains pending on direct review after the grant of certiorari from the Kentucky Supreme Court.63
The new rule announced should be applied retroactively to cases pending on direct review or not yet final.64
Related opinions on this issue
Justice O'Connor concurs in the Court's opinion and judgment but also agrees with the views of the Chief Justice and Justice White that today's decision does not apply retroactively.65 She emphasizes that the rule will create administrative burdens for trial courts and joins the dissents on the retroactivity point.66 O'Connor notes that applying the decision retroactively would lead to a whole host of problems, if not utter chaos, because determining whether a defendant has made a prima facie showing requires reconstructing the entire voir dire.67
She concludes that the three factors from Solem v. Stumes point conclusively to a nonretroactive holding.68