NCJ Number
62021
Journal
Harvard Law Review Volume: 92 Issue: 8 Dated: (JUNE 1979) Pages: 1770-1789
Date Published
1979
Length
20 pages
Annotation
JUDICIAL DECISIONS BEARING UPON THE DEFENDANT'S RIGHT TO OBJECT TO PROSECUTORIAL MISUSE OF THE PEREMPTORY CHALLENGE IN JURY SELECTION ARE CRITIQUED.
Abstract
IN SWAIN V. ALABAMA (1965), THE SUPREME COURT CONCLUDED THAT THE FUNCTION AND PURPOSE OF THE PEREMPTORY CHALLENGE IS SUCH THAT AN INQUIRY INTO THE PROSECUTOR'S REASONS FOR THE CHALLENGE IN EVERY CIRCUMSTANCE IS NOT REQUIRED BY THE CONSTITUTION. ALTHOUGH THE REMEDY OFFERED BY THE CALIFORNIA AND MASSACHUSETTS COURTS TO PREVENT MISUSE OF THE PEREMPTORY CHALLENGE WILL RESULT IN NEW JUDICIAL INQUIRIES INTO THE PROSECUTOR'S REASONS, NOT EVERY CHALLENGE WILL BE SUBJECT TO COURT SCRUTINY. ONLY IF THE DEFENDANT CAN REBUT THE PRESUMPTION OF THE PROSECUTOR'S LEGITIMATE USE OF THE CHALLENGE WILL THE PROSECUTOR BE SUBJECT TO QUESTION. ON THE OTHER HAND, A ROUTINE HEARING WILL BE AVAILABLE WHICH WILL NOT REQUIRE ELABORATE RECORDKEEPING OR STATISTICAL ANALYSIS, ASSURING THE DEFENDANT THE POSSIBILITY OF RELIEF WHICH DID NOT EXIST UNDER SWAIN. THE STATE COURTS' SPECIFIC RESULTS IN PEOPLE V. WHEELER AND COMMONWEALTH V. SOARES ARE SATISFACTORY, BUT THEIR UNDERLYING THEORY IS TROUBLESOME. THE THEORETICAL INCONSISTENCIES AND THE PRACTICAL PROBLEMS POSED CAN BE RESOLVED ONLY BY FOUNDING THE DEFENDANT'S RIGHT TO OBJECT TO THE PROSECUTOR'S MISUSE OF THE PEREMPTORY CHALLENGE ON THE POLICIES OF JURY SELECTION OF THE SIXTH AMENDMENT. THIS SOLUTION SHOULD RESULT IN SATISFACTION OF THE DEFENDANT'S RIGHTS AND IN A VERDICT WHICH A JUST COMMUNITY CAN ADOPT. FOOTNOTES ARE PROVIDED. (AUTHOR ABSTRACT MODIFIED--RCB)