Impartiality as a principle of the right to trial by jury is served not only by the Sixth Amendment, which is as applicable to the States as to the Federal Government,85 but as well by the due process and equal protection clauses of the Fourteenth,86 and perhaps the due process clause of the Fifth Amendment, and the Court's supervisory power has been directed to the issue in the federal system.87 Prior to the Court's extension of a right to jury trials in state courts, it was firmly established that if a State chose to provide juries they must be impartial ones.88
85 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).
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."89 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.90 "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."91 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.92 While disproportion alone is insufficient to establish a prima facie showing of unlawful exclusion, a statistical showing of disparity combined with a demonstration of the easy manipulability of the selection process can make out a prima facie case.93
86 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).
87 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.
88 Turner v. Louisiana, 379 U.S. 466 (1965).
89 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. No. 90-274, 82 Stat. 53, 28 U.S.C. §§ 1861 et seq.
90 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).
91 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, 130 S. Ct. 1382 (2010).
92 Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439 U.S. 357 (1979).
93 Castaneda v. Partida, 430 U.S. 482 (1977) (Mexican-American defendant successfully made out prima facie case of intentional exclusion of persons of his ethnic background by showing a substantial underrepresentation of Mexican-Americans based on a comparison of the group's proportion in the total population of eligible jurors to the proportion called, and this in the face of the fact that Mexican-Americans controlled the selection process).
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.94 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.95 Exposure of the jury to possibly prejudicial material and disorderly courtroom activities may deny impartiality and must be inquired into.96 Private communications, contact, or tampering with a jury, or the creation of circumstances raising the dangers thereof, is not to be condoned.97 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.98 It is undeniably a violation of due process to subject a defendant to trial in an atmosphere of mob or threatened mob domination.99
94 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).
95 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).
96 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 which the court then may inquire into. 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).
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.100 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.101
In Witherspoon v. Illinois,102 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. Inasmuch as the jury is given broad discretion whether or not to fix the penalty at death, the Court ruled, the jurors must reflect "the conscience of the community" on the issue, and the automatic exclusion of all scrupled jurors "stacked the deck" and made of the jury a tribunal "organized to return a verdict of death."103 A court may not refuse a defendant's request to examine potential jurors to determinew whether they would vote automatically to impose the death penalty; general questions about fairness and willingness to follow the law are inadequate.104
97 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).
98 Irvin v. Dowd, 366 U.S. 717 (1961) (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., 130 S. Ct. 2896 (2010).
99 Frank v. Mangum, 237 U.S. 309 (1915); Irvin v. Dowd, 366 U.S. 717 (1961); Sheppard v. Maxwell, 384 U.S. 333 (1966).
100 Jackson v. Denno, 378 U.S. 368 (1964) (overruling Stein v. New York, 346 U.S. 156 (1953)).
101 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).
102 391 U.S. 510 (1968).
103 391 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). The Witherspoon case 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).
104 Morgan v. Illinois, 504 U.S. 719 (1992).
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."'105 Thus the juror need not indicate that he would "automatically" vote against the death penalty, and his "bias [need not] be proved with 'unmistakable clarity."'106 Persons properly excludable under Witherspoon may also be excluded from the guilt/innocence phase of a bifurcated capital trial.107 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, concluding that "it is simply not possible to define jury impartiality . . . by reference to some hypothetical mix of individual viewpoints."108 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.109 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.110
In Uttecht v. Brown,41 the Court summed up four principles that it derived from Witherspoon and Witt [cited in the main volume at n.105]: “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.”42
105 Wainwright v. Witt, 469 U.S. 412, 424 (1985), (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).
106 Wainwright v. Witt, 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).
107 Lockhart v. McCree, 476 U.S. 162 (1986).
108 476 U.S. at 183.
109 476 U.S. at 180.
110 Buchanan v. Kentucky, 483 U.S. 402 (1987).
41 551 U.S. 1 (2007).
42 551 U.S. at 9 (citations omitted). Deference was the focus of Uttecht v. Brown, as the Court, by a 5-to-4 vote, reversed the Ninth Circuit and affirmed a death sentence, finding that the Ninth Circuit had neglected to accord the deference it owed to the trial court’s finding that a juror was not substantially impaired. The Court concluded: “Courts reviewing claims of Witherspoon-Witt error . . . , especially federal courts considering habeas petitions, owe deference to the trial court, which is in a superior position to determine the demeanor and qualifications of a potential juror.” Id. at 22. The reason that federal courts of appeals owe special deference when considering habeas petitions is that the Antiterrorism and Effective Death Penalty Act of 1996 “provide[s] additional, and binding, directions to accord deference.” Id. at 10. The dissent, written by Justice Stevens and joined by Justices Souter, Ginsburg, and Breyer, noted that the juror whose exclusion for cause was challenged had “repeatedly confirmed” that, despite his “general reservations” about the death penalty, he would be able to vote for it. Id. at 37. Even under the standard of review imposed by the Antiterrorism and Effective Death Penalty Act of 1996, “[w]hile such testimony might justify a peremptory challenge, until today not one of the many cases decided in the wake of Witherspoon v. Illinois has suggested that such a view would support a challenge for cause… In its opinion, the Court blindly accepts the state court’s conclusory statement that [the juror’s] views would have ‘substantially impaired’ his ability to follow the court’s instructions without examining what that term means in practice and under our precedents.” Id. at 37, 38 (citation to Witherspoon omitted).
Exclusion of one juror qualified under Witherspoon constitutes reversible error, and the exclusion may not be subjected to harmless error analysis.111 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.112 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."'113
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.114 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.115 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.116 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.117 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.118 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.119
111 Gray v. Mississippi, 481 U.S. 648 (1987).
112 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).
113 487 U.S. at 86, 87.
114 Lewis v. United States, 146 U.S. 370 (1892); Pointer v. United States, 151 U.S. 396 (1894).
115 Reynolds v. United States, 98 U.S. 145 (1879). See Witherspoon v. Illinois, 391 U.S. 510, 513-15, 522 n.21 (1968).
116 Mu'Min v. Virginia, 500 U.S. 415 (1991).
117 Ham v. South Carolina, 409 U.S. 524 (1973).
118 Turner v. Murray, 476 U.S. 28 (1986). The quote is from a section of Justice White's opinion not adopted as opinion of the Court. Id. at 35.
119 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.
Although government is not constitutionally obligated to allow peremptory challenges,* 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.120 While, in Swain v. Alabama,121 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,122 with the result that a defendant may now establish an equal protection violation resulting from a prosecutor's use of peremptory challenges to systematically exclude blacks from the jury.123 A violation can occur whether or not the defendant and the excluded jurors are of the same race.124 Racially discriminatory use of peremptory challenges does not, however, constitute a violation of the Sixth Amendment, the Court ruled in Holland v. Illinois.125 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."126 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."127
* “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).
120 Cf. Stilson v. United States, 250 U.S. 583, 586 (1919), an older case holding that it is no violation of the guarantee to limit the number of peremptory challenges to each defendant in a multi-party trial.
121 380 U.S. 202 (1965).
122 476 U.S. 79 (1986).
123 See Fourteenth Amendment discussion of "Equal Protection and Race," infra.
124 Powers v. Ohio, 499 U.S. 400 (1991) (defendant has standing to raise equal protection rights of excluded juror of different race).
125 493 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).
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.128 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."129 It followed, therefore, that the limitation on peremptory challenges does not violate a defendant's right to an impartial jury. While 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.130
126 493 U.S. at 487.
127 493 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.
128 Georgia v. McCollum, 505 U.S. 42 (1992).
129 505 U.S. at 57.
130 505 U.S. at 58.
Last modified: June 9, 2014