Powers v. Ohio
Opinion of the Court
delivered the opinion of the Court.
Jury service is an exercise of responsible citizenship by all members of the community, including those who otherwise might not have the opportunity to contribute to our civic life. Congress recognized this over a century ago in the Civil Rights Act of 1875, which made it a criminal offense to exclude persons from jury service on account of their race. See 18 U. S. C. §243. In a trilogy of cases decided soon after enactment of this prohibition, our Court confirmed the validity of the statute, as well as the broader constitutional imperative of race neutrality in jury selection. See Strauder v. West Virginia, 100 U. S. 303 (1880); Virginia v. Rives, 100 U. S. 313 (1880); Ex parte Virginia, 100 U. S. 339 (1880). In the many times we have confronted the issue since those cases, we have not questioned the premise that racial discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of the courts. Despite the clarity of these commands to eliminate the taint of racial discrimination in the administration of justice, allegations of bias in the jury selection process persist. In this case, petitioner alleges race discrimination in the prosecution’s use of peremptory challenges. Invoking the Equal Protection Clause and federal statutory law, and relying upon well-established principles of standing, we hold that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race.
HH
Petitioner Larry Joe Powers, a white man, was indicted in Franklin County, Ohio, on two counts of aggravated murder and one count of attempted aggravated murder. Each count also included a separate allegation that petitioner had a firearm while committing the offense. Powers pleaded not guilty and invoked his right to a jury trial.
The empaneled jury convicted Powers on counts of murder, aggravated murder, and attempted aggravated murder, each with the firearm specifications, and the trial court sentenced him to a term of imprisonment of 53 years to life. Powers appealed his conviction to the Ohio Court of Appeals, contending that the prosecutor’s discriminatory use of pe-remptories violated the Sixth Amendment’s guarantee of a fair cross section in his petit jury, the Fourteenth Amendment’s Equal Protection Clause, and Article I, §§10 and 16, of the Ohio Constitution. Powers contended that his own race was irrelevant to the right to object to the prosecution’s peremptory challenges. The Court of Appeals affirmed the conviction, and the Supreme Court of Ohio dismissed Powers’ appeal on the ground that it presented no substantial constitutional question.
Petitioner sought review before us, renewing his Sixth Amendment fair cross section and Fourteenth Amendment equal protection claims. While the petition for certiorari was pending, we decided Holland v. Illinois, 493 U. S. 474 (1990). In Holland it was alleged the prosecution had used its peremptory challenges to exclude from the jury members
II
For over a century, this Court has been unyielding in its position that a defendant is denied equal protection of the laws when tried before a jury from which members of his or her race have been excluded by the State’s purposeful conduct. “The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, Strauder, [100 U. S.,] at 305, or on the false assumption that members of his race as a group are not qualified to serve as jurors, see Norris v. Alabama, 294 U. S. 587, 599 (1935); Neal v. Delaware, 103 U. S. 370, 397 (1881).” Batson, supra, at 86 (footnote omitted). Although a defendant has no right to a “petit jury composed in whole or in part of persons of [the defendant’s] own race,” Strauder, 100 U. S., at 305, he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria.
We confronted the use of peremptory challenges as a device to exclude jurors because of their race for the first time in Swain v. Alabama, 380 U. S. 202 (1965). Swain involved a challenge to the so-called struck jury system, a procedure designed to allow both the prosecution and the defense a maximum number of peremptory challenges. The venire in
We returned to the problem of a prosecutor’s discriminatory use of peremptory challenges in Batson v. Kentucky. There, we considered a situation similar to the one before us today, but with one exception: Batson, the defendant who complained that black persons were being excluded from his petit jury, was himself black. During the voir dire examination of the venire for Batson’s trial, the prosecutor used his peremptory challenges to strike all four black persons on the venire, resulting in a petit jury composed only of white persons. Batson’s counsel moved without success to discharge the jury before it was empaneled on the ground that the prosecutor’s removal of black venirepersons violated his rights under the Sixth and Fourteenth Amendments. Relying upon the Equal Protection Clause alone, we overruled Swain to the extent it foreclosed objections to the discriminatory use of peremptories in the course of a specific trial. 476 U. S., at 90-93. In Batson we held that a defendant can raise an equal protection challenge to the use of peremptories at his own trial by showing that the prosecutor used them for the purpose of excluding members of the defendant’s race. Id., at 96.
In Batson, we spoke of the harm caused when a defendant is tried by a tribunal from which members of his own race have been excluded. But we did not limit our discussion in Batson to that one aspect of the harm caused by the violation. Batson “was designed ‘to serve multiple ends,’” only one of which was to protect individual defendants from discrimination in the selection of jurors. Allen v. Hardy, 478 U. S. 255, 259 (1986) (per curiam) (quoting Brown v. Louisiana, 447 U. S. 323, 329 (1980)). Batson recognized that a prosecutor’s discriminatory use of peremptory challenges harms the excluded jurors and the community at large. 476 U. S., at 87.
The opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for retaining the jury system. See Duncan v. Louisiana, 391 U. S. 145, 147-158 (1968). In Balzac v. Porto Rico, 258 U. S. 298 (1922), Chief Justice Taft wrote for the Court:
“The jury system postulates a conscious duty of participation in the machinery of justice. . . . One of its greatest benefits is in the security it gives the people that they, as jurors actual or possible, being part of the judicial system of the country can prevent its arbitrary use or abuse.” Id., at 310.
And, over 150 years ago, Alexis de Tocqueville remarked:
*407 “[T]he institution of the jury raises the people itself, or at least a class of citizens, to the bench of judicial authority [and] invests the people, or that class of citizens, with the direction of society.
. . The jury . . . invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society; and the part which they take in the Government. By obliging men to turn their attention to affairs which are not exclusively their own, it rubs off that individual egotism which is the rust of society.
“I do not know whether the jury is useful to those who are in litigation; but I am certain it is highly beneficial to ■ those who decide the litigation; and I look upon it as one of the most efficacious means for the education of the people which society can employ.” 1 Democracy in America 334-337 (Schocken 1st ed. 1961).
Jury service preserves the democratic element of the law, as it guards the rights of the parties and ensures continued acceptance of the laws by all of the people. See Green v. United States, 356 U. S. 165, 215 (1958) (Black, J., dissenting). It “affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law.” Duncan, supra, at 187 (Harlan, J., dissenting). Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.
While States may prescribe relevant qualifications for their jurors, see Carter v. Jury Comm’n of Greene County, 396 U. S. 320, 332 (1970), a member of the community may not be excluded from jury service on account of his or her race. See Batson, supra, at 84; Swain, 380 U. S., at 203-204; Carter, supra, at 329-330; Thiel v. Southern Pacific Co., 328 U. S.
“The very fact that [members of a particular race] are singled out and expressly denied ... all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.” Strauder, supra, at 308.
Discrimination in the jury selection process is the subject of a federal criminal prohibition, and has been since Congress enacted the Civil Rights Act of 1876. The prohibition has been codified at 18 U. S. C. § 243, which provides:
“No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $6,000.”
In Peters v. Kiff, 407 U. S. 493 (1972), Justice White spoke of “the strong statutory policy of § 243, which reflects the central concern of the Fourteenth Amendment.” Id., at 507 (opinion concurring in judgment). The Court permitted a white defendant to challenge the systematic exclusion of
Racial discrimination in the selection of jurors in the context of an individual trial violates these same prohibitions. A State “may not draw up its jury lists pursuant to neutral procedures but then resort to discrimination at ‘other stages in the selection process.’” Batson, 476 U. S., at 88 (quoting Avery v. Georgia, 345 U. S. 559, 562 (1953)). We so held in Batson, and reaffirmed that holding in Holland. See 493 U. S., at 479. In Holland, the Court held that a defendant could not rely on the Sixth Amendment to object to the exclusion of members of any distinctive group at the peremptory challenge stage. We noted that the peremptory challenge procedure has acceptance in our legal tradition. See id., at 481. On this reasoning we declined to permit an objection to the peremptory challenge of a juror on racial grounds as a Sixth Amendment matter. As the Holland Court made explicit, however, racial exclusion of prospective jurors violates the overriding command of the Equal Protection Clause, and “race-based exclusion is no more permissible at the individual petit jury stage than at the venire stage.” Id., at 479.
We hold that the Equal Protection Clause prohibits a prosecutor from using the State’s peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race, a practice that forecloses a significant opportunity to participate in civic life. An individual juror does not have a right to sit on any particular petit jury, but he or she does possess the right not to be excluded from one on account of race.
We reject as well the view that race-based peremptory challenges survive equal protection scrutiny because members of all races are subject to like treatment, which is to say that white jurors are subject to the same risk of peremptory challenges based on race as are all other jurors. The suggestion that racial classifications may survive when visited upon all persons is no more authoritative today than the case which advanced the theorem, Plessy v. Ferguson, 163 U. S. 537 (1896). This idea has no place in our modern equal protection jurisprudence. It is axiomatic that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree. Loving v. Virginia, 388 U. S. 1 (1967).
Ill
We must consider whether a criminal defendant has standing to raise the equal protection rights of a juror excluded from service in violation of these principles. In the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties. Department of Labor v. Triplett, 494 U. S. 715, 720 (1990); Singleton v. Wulff, 428 U. S. 106 (1976). This fundamental restriction on our authority admits of certain, limited exceptions. We have recognized the right of litigants to bring actions on behalf of
The discriminatory use of peremptory challenges by the prosecution causes a criminal defendant cognizable injury, and the defendant has a concrete interest in challenging the practice. See Allen v. Hardy, 478 U. S., at 259 (recognizing a defendant’s interest in “neutral jury selection procedures”). This is not because the individual jurors dismissed by the prosecution may have been predisposed to favor the defendant; if that were true, the jurors might have been excused for cause. Rather, it is because racial discrimination in the selection of jurors “casts doubt on the integrity of the judicial process,” Rose v. Mitchell, 443 U. S. 545, 556 (1979), and places the fairness of a criminal proceeding in doubt.
The jury acts as a vital check against the wrongful exercise of power by the State and its prosecutors. Batson, 476 U. S., at 86. The intrusion of racial discrimination into the jury selection process damages both the fact and the perception of this guarantee. “Jury selection is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice, Rosales-Lopez v. United States, 451 U. S. 182, 188 (1981);
Unlike the instances where a defendant seeks to object to the introduction of evidence obtained illegally from a third party, see, e. g., United States v. Payner, 447 U. S. 727 (1980), here petitioner alleges that the primary constitutional violation occurred during the trial itself. A prosecutor’s wrongful exclusion of a juror by a race-based peremptory challenge is a constitutional violation committed in open court at the outset of the proceedings. The overt wrong, often apparent to the entire jury panel, casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the cause. The voir dire phase of the trial represents the “jurors’ first introduction to the substantive factual and legal issues in a case.” Gomez, supra, at 874. The influence of the voir dire process may persist through the whole course of the trial proceedings. Ibid. If the defendant has no right to object to the prosecutor’s improper exclusion of jurors, and if the trial court has no duty to make a prompt inquiry when the defendant shows, by adequate grounds, a likelihood of impropriety in the exercise of a challenge, there arise legitimate doubts that the jury has been chosen by proper means. The composition of the
The purpose of the jury system is to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair. The verdict will not be accepted or understood in these terms if the jury is chosen by unlawful means at the outset. Upon these considerations, we find that a criminal defendant suffers a real injury when the prosecutor excludes jurors at his or her own trial on account of race.
We noted in Singleton that in certain circumstances “the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter.” 428 U. S., at 115. Here, the relation between petitioner and the excluded jurors is as close as, if not closer than, those we have recognized to convey third-party standing in our prior cases. See, e. g., Griswold v. Connecticut, supra (Planned Parenthood official and a licensed physician can raise the constitutional rights of contraceptive users with whom they had professional relationships); Craig, supra (licensed beer vendor has standing to raise the equal protection claim of a male customer challenging a statutory scheme prohibiting the sale of beer to males under the age of 21 and to females under the age of 18); Department of Labor v. Triplett, 494 U. S. 715 (1990) (attorney may challenge an attorney’s fees restriction by asserting the due process rights of the client). Voir dire permits a party to establish a relation, if not a bond of trust, with the jurors. This relation continues throughout the entire trial and may in some cases extend to the sentencing as well.
Both the excluded juror and the criminal defendant have a common interest in eliminating racial discrimination from the courtroom. A venireperson excluded from jury service because of race suffers a profound personal humiliation height
The final inquiry in our third-party standing analysis involves the likelihood and ability of the third parties, the excluded venirepersons, to assert their own rights. See Singleton, supra, at 115-116. We have held that individual jurors subjected to racial exclusion have the legal right to bring suit on their own behalf. Carter, 396 U. S., at 329-330. As a practical matter, however, these challenges are rare. See Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 193-195 (1989). Indeed, it took nearly a century after the Fourteenth Amendment and the Civil Rights Act of 1875 came into being for the first such case to reach this Court. See Carter, supra, at 320.
The barriers to a suit by an excluded juror are daunting. Potential jurors are not parties to the jury selection process and have no opportunity to be heard at the time of their exclusion. Nor can excluded jurors easily obtain declaratory or injunctive relief when discrimination occurs through an individual prosecutor’s exercise of peremptory challenges.
We conclude that a defendant in a criminal case can raise the third-party equal protection claims of jurors excluded by the prosecution because of their race. In so doing, we once again decline “to reverse a course of decisions of long standing directed against racial discrimination in the administration of justice.” Cassell v. Texas, supra, at 290 (Frankfurter, J., concurring in judgment). To bar petitioner’s claim because his race differs from that of the excluded jurors would be to condone the arbitrary exclusion of citizens from the duty, honor, and privilege of jury service. In Holland and Batson, we spoke of the significant role peremptory challenges play in our trial procedures, but we noted also that the utility of the peremptory challenge system must be accommodated to the command of racial neutrality. Holland, 493 U. S., at 486-487; Batson, supra, at 98-99.
The Fourteenth Amendment’s mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system. Rose v. Mitchell, supra, at 555. We have held, for example, that prosecutorial discretion cannot be exercised on the basis of race, Wayte v. United States, 470 U. S. 598, 608 (1985), and that, where racial bias is likely to influence a jury, an inquiry must be made into such bias. Ristaino v. Ross, 424 U. S.
The emphasis in Batson on racial identity between the defendant and the excused prospective juror is not inconsistent with our holding today that race is irrelevant to a defendant’s standing to object to the discriminatory use of peremptory challenges. Racial identity between the defendant and the excused person might in some cases be the explanation for the prosecution’s adoption of the forbidden stereotype, and if the alleged race bias takes this form, it may provide one of the easier cases to establish both a prima facie case and a conclusive showing that wrongful discrimination has occurred. But to say that the race of the defendant may be relevant to discerning bias in some cases does not mean that it will be a factor in others, for race prejudice, stems from various causes and may manifest itself in different forms.
It remains for the trial courts to develop rules, without unnecessary disruption of the jury selection process, to permit legitimate and well-founded objections to the use of peremptory challenges as a mask for race prejudice. In this case, the State concedes that, if we find the petitioner has standing to object to the prosecution’s use of the peremptory challenges, the case should be remanded. We find that petitioner does have standing. The judgment is reversed, and the case is remanded for further proceedings not inconsistent with our opinion.
It is so ordered.
Dissenting Opinion
with whom The Chief Justice joins, dissenting.
Since in my view today’s decision contradicts well-established law in the area of equal protection and of standing, I respectfully dissent.
I
The Court portrays its holding as merely the logical application of our prior jurisprudence concerning equal protection challenges to criminal convictions. It is far from that.
Over a century ago, in Strauder v. West Virginia, 100 U. S. 303 (1880), we held that a statute barring blacks from service on grand or petit juries denied equal protection of the laws to a black man convicted of murder by an all-white jury. Interpreting the recently enacted Fourteenth Amendment, we concluded that the statute violated the black defendant’s equal protection right for the following reason:
“It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?” Id., at 309.
It was not suggested in Strauder, and I am sure it was quite unthinkable, that a white defendant could have had his conviction reversed on the basis of the same statute. The statute did not exclude members of his race, and thus did not deprive him of the equal protection of the laws.
Twenty-six years ago, in Swain v. Alabama, 380 U. S. 202 (1965), we first considered an equal protection claim against peremptory challenges by the prosecution. In that case, a
Five years ago we revisited the issue, and overruled Swain. In Batson v. Kentucky, 476 U. S. 79 (1986), we held that “a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case,” id., at 95 (emphasis in original), whereupon the prosecution would be required to justify its strikes on race-neutral
On only two occasions in the past have we considered claims by a criminal defendant of one race that the prosecution had discriminated against prospective jurors of another race. Last Term, in Holland v. Illinois, 493 U. S. 474 (1990), we held that the prosecution’s use of peremptory strikes against black jurors did not deprive a white defendant of his Sixth Amendment right to an impartial jury. No
Alexander v. Louisiana, 405 U. S. 625 (1972), involved precisely the sort of claim made here, in the context of an alleged denial of equal protection on the basis of sex. In that case, a black male defendant contended that the State’s manner of composing its jury lists had excluded blacks and women from his grand jury, thereby denying him equal protection of the laws. We ultimately found it unnecessary to reach his claim regarding the exclusion of women, but only after saying the following:
“This claim is novel in this Court and, when urged by a male, finds no support in our past cases. The strong*422 constitutional and statutory policy against racial discrimination has permitted Negro defendants in criminal cases to challenge the systematic exclusion of Negroes from the grand juries that indicted them. . . . [T]here is nothing in past adjudications suggesting that petitioner himself has been denied equal protection by the alleged exclusion of women from grand jury service.” Id., at 633 (emphasis added).
Similarly, in Castaneda v. Partida, 430 U. S. 482 (1977), in holding that the respondent had successfully established a prima facie case of discrimination against Mexican-Americans in the selection of grand jurors, we said that “in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial under-representation of his race or of the identifiable group to which he belongs.” Id., at 494 (emphasis added).
Thus, both before and after Batson, and right down to the release of today’s opinion, our jurisprudence contained neither a case holding, nor even a dictum suggesting, that a defendant could raise an equal protection challenge based upon the exclusion of a juror of another race; and our opinions contained a vast body of clear statement to the contrary. We had reaffirmed the point just last Term in Holland, supra. After quoting the language from Batson requiring the defendant to show that he is a member of the racial group alleged to have been removed from the jury, we contrasted the requirements for standing under the Fourteenth Amendment’s Equal Protection Clause and the Sixth Amendment: “We have never suggested, however, that such a requirement of correlation between the group identification of the defendant and the group identification of excluded venire members is necessary for Sixth Amendment standing. To the contrary, our cases hold that the Sixth Amendment entitles every defendant to object to a venire that is not designed to represent a fair cross section of the community, whether
Thus, today’s holding cannot be considered in accordance with our prior law. It is a clear departure.
II
In an apparent attempt to portray the question before us as a novel one, the Court devotes a large portion of its opinion to third-party standing — as though that obvious avenue of rendering the Equal Protection Clause applicable had not occurred to us in the many cases discussed above. Granted, the argument goes, that this white defendant has not himself been denied equal protection, but he has third-party standing to challenge the denial of equal protection to the stricken black jurors. The Court’s discussion of third-party standing is no more faithful to our precedent than its description of our earlier equal protection cases. Before reaching that point, however, there is a prior one: The first-party right upon which the Court seeks to base third-party standing has not hitherto been held to exist.
All citizens have the equal protection right not to be excluded from jury service (i. e., not to be excluded from grand- and petit-jury lists) on the basis of irrelevant factors such as race, Carter v. Jury Comm’n of Greene County, 396 U. S. 320 (1970), or employment status, cf. Thiel v. Southern Pacific Co., 328 U. S. 217 (1946). As Swain suggested, this principle would also prohibit the systematic exclusion of a particular race or occupation from all jury service through peremptory challenges. When a particular group has been singled out in this fashion, its members have been treated differently, and have suffered the deprivation of a right and responsibility of citizenship. But when that group, like all others, has been made subject to peremptory challenge on the basis of its group characteristic, its members have been treated not differently but the same. In fact, it would con
In reply to this, it could be argued that discrimination is not legitimated by being applied, so to speak, indiscriminately; that the unlawfulness of treating one person differently on irrelevant grounds is not erased by subjecting everyone else to the same unlawfulness. The response to this is that the stricken juror has not been “treated differently” in the only pertinent sense — that is, in the sense of being deprived of any benefit or subjected to any slight or obloquy. The strike does not deprecate his group, and thereby “stigmatize” his own personality. Unlike the categorical exclusion of a group from jury service, which implies that all its members are incompetent or untrustworthy, a peremptory strike on the basis of group membership implies nothing more than the undeniable reality (upon which the peremptory strike system is largely based) that all groups tend to have particular sympathies and hostilities — most notably, sympathies towards their own group members. Since that reality is acknowledged as to all groups, and forms the basis for peremptory strikes as to all of them, there is no implied criticism or dishonor to a strike. Nor is the juror who is struck because of his group membership deprived of any benefit. It is obvious, as Strauder acknowledged, that a defendant belonging to an identifiable group is benefited by having members of that group on his jury, but it is impossible to understand how a juror is benefited by sitting in judgment of a member of his own group, rather than of another. All qualified citizens have a civic right, of course, to serve as jurors, but none has the right to serve as a juror in a particular case. Otherwise, we would have to permit stricken jurors to complain not only of peremptory challenges that supposedly deny
To affirm that the Equal Protection Clause applies to strikes of individual jurors is effectively to abolish the peremptory challenge. As discussed in Swain, “irrelevant” personal characteristics are by definition the basis for using that device; relevant characteristics would produce recusal for cause. And as Swain also pointed out, the irrelevant characteristics relied upon are frequently those that would promptly trigger invalidation in other contexts — not only race, but religion, sex, age, political views, economic status. Not only is it implausible that such a permanent and universal feature of our jury-trial system is unconstitutional, but it is unlikely that its elimination would be desirable. The peremptory challenge system has endured so long because it has unquestionable advantages. As we described in Holland, 493 U. S., at 484, it is a means of winnowing out possible (though not demonstrable) sympathies and antagonisms on both sides, to the end that the jury will be the fairest possible. In a criminal-law system in which a single biased juror can prevent a deserved conviction or a deserved acquittal, the importance of this device should not be minimized.
Until Batson, our jurisprudence affirmed the categorical validity of peremptory strikes so long as they were not used as a substitute for segregated jury lists. Batson made an exception, but one that was narrow in principle and hence limited in effect. It announced an equal protection right, not of prospective jurors to be seated without regard to their race, but of defendants not to be tried by juries from which members of their race have been intentionally excluded. While the opinion refers to “[t]he harm” that “discriminatory jury selection” inflicts upon “the excluded juror,” 476 U. S., at 87, that is not a clear recognition, even in dictum, that the excluded juror has his own cause of action — any more than its accompanying reference to the harm inflicted upon “the entire community,” ibid., suggests that the entire community
In sum, we have never held, or even said, that a juror has an equal protection right not to be excluded from a particular case through peremptory challenge; and the existence of such a right would call into question the continuing existence of a centuries-old system that has important beneficial effects. Thus, even if the Court’s discussion of Powers’ third-party standing to raise the rights of stricken jurors were correct, it would merely replace the mystery of why he has a cause of action with the mystery of why they do.
I — I ) — I
In any event, the Court’s third-party standing analysis is not correct. The Court fails to establish what we have described as the very first element of third-party standing: the requirement of “injury in fact.” See, e. g., Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 623, n. 3 (1989); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947, 954-955 (1984). The Court’s attempt at constructing an injury in fact to petitioner goes as follows: When the prosecution takes race into account in exercising its peremptory challenges, it “casts doubt on the integrity of the judicial process,” and “invites cynicism respecting the jury’s neutrality and its obligation to adhere to the law,” ante, at 411, 412 (internal quotations omitted), as a result of which “[t]he verdict will not be accepted or understood [as fair],” ante, at 413. The Court must, of course, speak in terms of the perception of fairness rather than its reality, since only last Term we held categorically that the exclusion of members of a particular race from a jury does not produce
In response, however, it could be asserted that the requirement of injury in fact — and, more specifically, that element of the requirement which demands that the cause-and-effect relationship between the illegality and the alleged harm be more than speculative, see Allen v. Wright, 468 U. S. 737, 750-752 (1984); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 40-46 (1976)—has
We do not, however, extend this special treatment of injury in fact in the litigation context to third-party standing. Indeed, we do not even recognize third-party standing in the litigation context — that is, permit a civil or criminal litigant to upset an adverse judgment because the process by which it was obtained involved the violation of someone else’s rights — even when the normal injury-in-fact standard is amply met. If, for example, the only evidence supporting a conviction (so that the causality is not remotely speculative) consists of the fruit of a search and seizure that violated a third party’s Fourth Amendment rights, we will not permit those rights to be asserted by the defendant. See, e. g., Rawlings v. Kentucky, 448 U. S. 98 (1980); United States v. Payner, 447 U. S. 727 (1980); Rakas v. Illinois, 439 U. S. 128 (1978). We would reach the same result with respect to reliable evidence obtained in violation of another person’s Fifth Amendment right against self-incrimination, cf. id., at 140, n. 8. Likewise (assuming we follow the common law) with respect to evidence introduced in violation of someone else’s confidentiality privilege. See, e. g., Commonwealth v. McKenna,
> HH
Last Term, m Holland, we noted that “[t]he tradition of peremptory challenges for both the prosecution and the accused was already venerable at the time of Blackstone, . . . was reflected in a federal statute enacted by the same Congress that proposed the Bill of Rights, . . . was recognized in an opinion by Justice Story to be part of the common law of the United States, . . . and has endured through two centuries in all the States. .. .” 493 U. S., at 481. We concluded from this that “[a]ny theory of the Sixth Amendment leading to [the] result” that “each side may not . . . use peremptory challenges to eliminate prospective jurors belonging to groups it believes would unduly favor the other side” is “implausible.” Ibid. What is true with respect to the Sixth Amendment is true with respect to the Equal Protection Clause as well.
Batson was, as noted earlier, a clear departure from our jurisprudence, and the precise scope of the exception it has
The Court’s decision today is unprecedented in law, but not in approach. It is a reprise, so to speak, of Miranda v. Arizona, 384 U. S. 436 (1966), in that the Court uses its key to the jailhouse door not to free the arguably innocent, but to threaten release upon the society of the unquestionably guilty unless law enforcement officers take certain steps that the Court newly announces to be required by law. It goes beyond Miranda, however, in that there, at least, the man
Judging from the Court’s opinion, we can expect further, wide-ranging use of the jailhouse key to combat discrimination. Convictions are to be overturned, apparently, whenever “race is implicated in the trial” — “by casting doubt upon the credibility or dignity of a witness, or . . . upon the standing or due regard of an attorney who appears in the cause,” or even by suggesting “an alleged racial motivation of the defendant or a victim.” Ante, at 412. To me this makes no sense. Lofty aims do not justify every step intended to achieve them. Today’s supposed blow against racism, while enormously self-satisfying, is unmeasured and misdirected. If for any reason the State is unable to reconvict Powers for the double murder at issue here, later victims may pay the price for our extravagance. Even if such a tragedy, in this or any case, never occurs, the prosecutorial efforts devoted to retrials will necessarily be withheld from other endeavors, as will the prosecutorial efforts devoted to meeting the innumerable Powers claims that defendants of all races can be relied upon to present — again with the result that crime goes unpunished and criminals go free.
I respectfully dissent.
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