Amendment 14 — Peremptory Challenges

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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.

Following its 1880 Strauder v. West Virginia decision that a law that discriminates in selecting jurors based on their color violates the Fourteenth Amendment ’s Equal Protection Clause,[1](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn1amd14 " 100 U.S. 303 (1880). Cf. Virginia v. Rives, 100 U.S. 313 (1880). Discrimination on the basis of race, color, or previous condition of servitude in jury selection has also been statutorily illegal since enactment of § 4 of the Civil Rights Act of 1875, 18 Stat. 335, 18 U.S.C. § 243. See Ex parte Virginia, 100 U.S. 339 (1880), superseded by statute, 42 U.S.C. § 1981. In Hernandez v. Texas, 347 U.S. 475 (1954), the Court found jury discrimination against Mexican-Americans to be a denial of equal protection, a ruling it reiterated in Castaneda v. Partida, 430 U.S. 482 (1977), finding proof of discrimination by statistical disparities, even though Mexican-surnamed individuals constituted a governing majority of the county and a majority of the selecting officials were Mexican-American. ") the Court recognized that excluding a defendant’s racial or ethnic group from the grand jury[2](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn2amd14 " Bush v. Kentucky, 107 U.S. 110 (1883), superseded by statute as stated in Georgia v. Rachel, 384 U.S. 780 (1966); Carter v. Texas, 177 U.S. 442 (1900); Rogers v. Alabama, 192 U.S. 226 (1904); Pierre v. Louisiana, 306 U.S. 354 (1939); Smith v. Texas, 311 U.S. 128 (1940); Hill v. Texas, 316 U.S. 400 (1942); Cassell v. Texas, 339 U.S. 282 (1950); Reece v. Georgia, 350 U.S. 85 (1955); Eubanks v. Louisiana, 356 U.S. 584 (1958); Arnold v. North Carolina, 376 U.S. 773 (1964); Alexander v. Louisiana, 405 U.S. 625 (1972). ") that indicts them or the petit jury[3](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn3amd14 " Hollins v. Oklahoma, 295 U.S. 394 (1935); Avery v. Georgia, 345 U.S. 559 (1953). ") that tries them, or from both,[4](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn4amd14 " Neal v. Delaware, 103 U.S. 370 (1881); Martin v. Texas, 200 U.S. 316 (1906); Norris v. Alabama, 294 U.S. 587 (1935); Hale v. Kentucky, 303 U.S. 613 (1938); Patton v. Mississippi, 332 U.S. 463 (1947); Coleman v. Alabama, 377 U.S. 129 (1964); Whitus v. Georgia, 385 U.S. 545 (1967); Jones v. Georgia, 389 U.S. 24 (1967); Sims v. Georgia, 385 U.S. 538 (1967). ") denies the defendant equal protection of the laws and requires reversing the conviction or dismissing the indictment.[5](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn5amd14 " Even if there is no discrimination in the selection of the petit jury which convicted him, a defendant who shows discrimination in the selection of the grand jury which indicted him is entitled to a reversal of his conviction. Cassell, 339 U.S. 282; Alexander v. Louisiana, 405 U.S. 625; Vasquez v. Hillery, 474 U.S. 254 (1986) (habeas corpus remedy). ") Even if the defendant’s race differs from that of the excluded jurors, the Court has held, the defendant has third-party standing to assert the rights of jurors excluded on the basis of race.[6](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn6amd14 " Powers v. Ohio, 499 U.S. 400, 415 (1991). Campbell v. Louisiana, 523 U.S. 392 (1998) (grand jury). See also Peters v. Kiff, 407 U.S. 493 (1972) (defendant entitled to have his conviction or indictment set aside if he proves such exclusion). The Court in 1972 was substantially divided with respect to the reason for rejecting the “same class” rule—that the defendant be of the excluded class—but in Taylor v. Louisiana, involving a male defendant and exclusion of women, the Court ascribed the result to the fair-cross-section requirement of the Sixth Amendment, which would have application across-the-board. 419 U.S. 522 (1975). ") Indeed, people categorically excluded from jury service may seek affirmative relief to outlaw discrimination in the procedures a jurisdiction uses to call and qualify jurors, as the Court has held that “[d]efendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection.” [7](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn7amd14 " Carter v. Jury Comm’n, 396 U.S. 320, 329 (1970) ") The Court has further noted that “[p]eople 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.” [8](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn8amd14 " Id.; Turner v. Fouche, 396 U.S. 346 (1970). ")

A plaintiff can make out a prima facie case of deliberate and systematic exclusion by showing that no Black citizens have served on juries for a period of years[9](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn9amd14 " Norris, 294 U.S. 587; Patton, 332 U.S. 463; Hill v. Texas, 316 U.S. 400 (1942). ") or that the number of Black jurors who served was grossly disproportionate to the percentage of Black citizens eligible for jury service.[10](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn10amd14 " Pierre v. Louisiana, 306 U.S. 354 (1939); Cassell, 339 U.S. 282; Eubanks v. Louisiana, 356 U.S. 584 (1958); Whitus v. Georgia, 385 U.S. 545 (1967); Alexander, 405 U.S. 625. For a discussion of statistical proof, see Castaneda v. Partida, 430 U.S. 482 (1977). ") Once this prima facie showing has been made, the Court has held that the burden is upon the jurisdiction to prove that it had not practiced discrimination and testimony by jury selection official that they did not discriminate is not sufficient.[11](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn11amd14 " Norris, 294 U.S. 587; Whitus, 385 U.S. 545; Sims v. Georgia, 389 U.S. 404 (1967); Fouche, 396 U.S. at 360–361. ") Although the Court, in cases with great racial disparities, has voided certain practices that facilitated discrimination,[12](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn12amd14 " Avery v. Georgia, 345 U.S. 559 (1953) (names of White and Black citizens listed on differently colored paper for drawing for jury duty); Whitus, 385 U.S. 545 (jurors selected from county tax books, in which names of African Americans were marked with a “c” ). ") it has not outlawed discretionary jury selection pursuant to general standards of educational attainment and character that can be administered fairly.[13](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn13amd14 " Carter, 396 U.S. at 331–37, and cases cited. ") Similarly, the Court declined to rule that African Americans must be included on all-White jury commissions that administer jury selection laws in some states.[14](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn14amd14 " Carter, 396 U.S. at 340–41. ")

In its 1965 Swain v. Alabama decision,[15](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn15amd14 " 380 U.S. 202 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986). ") the Court examined a circumstance where African Americans regularly appeared on jury venires but no African American had actually served on a petite jury in fifteen years.[16](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn16amd14 " Id. at 205, 223. ") The reason no Black jurors served in defendant’s case, the Court found, was that attorneys used peremptory challenges—which allow them to remove a certain number of potential jurors without justification—to eliminate potential African American jurors.[17](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn17amd14 " Id. at 210. ") Nevertheless, the Court refused to set aside the conviction. The Court held the prosecution could use peremptory challenges to exclude African Americans in this particular case, regardless of motive, but indicated that consistent use of such challenges to remove African Americans across many cases would violate equal protection.[18](https://www.law.cornell.edu/constitution-conan/amendment-14/peremptory-challenges#fn18amd14 " <