Georgia v. McCollum (1992)

U.S. Supreme Court

Georgia v. McCollum, 505 U.S. 42 (1992)


JUSTICE BLACKMUN delivered the opinion of the Court. 

For more than a century, this Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause. See, e. g., Strauder  v. West Virginia, 100 U. S. 303 (1880). Last Term this Court held that racial discrimination in a civil litigant’s exercise of peremptory challenges also violates the Equal Protection Clause. See Edmonson  v. Leesville Concrete Co., 500 U. S. 614 (1991). Today, we are asked to decide whether the Constitution prohibits a criminal defendant  from engaging in purposeful racial discrimination in the exercise of peremptory challenges.


On August 10, 1990, a grand jury sitting in Dougherty County, Ga., returned a six-count indictment charging respondents with aggravated assault and simple battery. See App. 2. The indictment alleged that respondents beat and assaulted Jerry and Myra Collins. Respondents are white; the alleged victims are African-Americans. Shortly after the events, a leaflet was widely distributed in the local African-American community reporting the assault and urging community residents not to patronize respondents’ business.

Before jury selection began, the prosecution moved to prohibit respondents from exercising peremptory challenges in a racially discriminatory manner. The State explained that it expected to show that the victims’ race was a factor in the alleged assault. According to the State, counsel for respondents had indicated a clear intention to use peremptory strikes in a racially discriminatory manner, arguing that the circumstances of their case gave them the right to exclude African-American citizens from participating as jurors in the trial. Observing that 43 percent of the county’s population is African-American, the State contended that, if a statistically representative panel is assembled for jury selection, 18 of the potential 42 jurors would be African-American.1 With 20 peremptory challenges, respondents therefore would be able to remove all the African-American potential jurors.2 Relying on Batson  v. Kentucky, 476 U. S. 79 (1986), the Sixth Amendment, and the Georgia Constitution, the State sought an order providing that, if it succeeded in making out a prima facie case of racial discrimination by respondents, the latter would be required to articulate a racially neutral explanation for peremptory challenges.

The trial judge denied the State’s motion, holding that “[n]either Georgia nor federal law prohibits criminal defendants from exercising peremptory strikes in a racially discriminatory manner.” App.14. The issue was certified for immediate appeal. Id., at 15 and 18.


Over the last century, in an almost unbroken chain of decisions, this Court gradually has abolished race as a consideration for jury service. In Strauder  v. West Virginia, 100 U. S. 303 (1880), the Court invalidated a state statute providing that only white men could serve as jurors. While stating that a defendant has no right to a “petit jury composed in whole or in part of persons of his own race,” id., at 305, the Court held that a defendant does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria. See also Neal  v. Delaware, 103 U. S. 370,***

In Swain  v. Alabama, 380 U. S. 202 (1965), the Court was confronted with the question whether an African-American defendant was denied equal protection by the State’s exercise of peremptory challenges to exclude members of his race from the petit jury. Id., at 209-210. Although the Court rejected the defendant’s attempt to establish an equal protection claim premised solely on the pattern of jury strikes in his own case, it acknowledged that proof of systematic exclusion of African-Americans through the use of peremptories over a period of time might establish such a violation. Id., at 224-228.

In Batson v. Kentucky, 476 U. S. 79 (1986), the Court discarded Swain’s evidentiary formulation. The Batson Court held that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury based solely on the prosecutor’s exercise of peremptory challenges at the defendant’s trial. Id., at 87. “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” Id., at 97.4

Last Term this Court applied the Batson framework in two other contexts. In Powers  v. Ohio, 499 U. S. 400 (1991), it held that in the trial of a white criminal defendant, a prosecutor is prohibited from excluding African-American jurors on the basis of race. In Edmonson  v. Leesville Concrete Co., 500 U. S. 614 (1991), the Court decided that in a civil case, private litigants cannot exercise their peremptory strikes in a racially discriminatory manner.5

In deciding whether the Constitution prohibits criminal defendants from exercising racially discriminatory peremptory challenges, we must answer four questions. First, whether a criminal defendant’s exercise of peremptory challenges in a racially discriminatory manner inflicts the harms addressed by Batson. Second, whether the exercise of peremptory challenges by a criminal defendant constitutes state action. Third, whether prosecutors have standing to raise this constitutional challenge. And fourth, whether the constitutional rights of a criminal defendant nonetheless preclude the extension of our precedents to this case.


[First Question answered] “[B]e it at the hands of the State or the defense,” if a court allows jurors to be excluded because of group bias, “[it] is [a] willing participant in a scheme that could only undermine the very foundation of our system of justice-our citizens’ confidence in it.” State  v. Alvarado, 221 N. J. Super. 324, 328, 534 A. 2d 440, 442 (1987). Just as public confidence in criminal justice is undermined by a conviction in a trial where racial discrimination has occurred in jury selection, so is public confidence undermined where a defendant, assisted by racially discriminatory peremptory strikes, obtains an acquitta1.


[Second Question answered]  ….Thus, the second question that must be answered is whether a criminal defendant’s exercise of a peremptory challenge constitutes state action for purposes of the Equal Protection Clause.

Until Edmonson, the cases decided by this Court that presented the problem of racially discriminatory peremptory challenges involved assertions of discrimination by a prosecutor, a quintessential state actor. In Edmonson, by contrast, the contested peremptory challenges were exercised by a private defendant in a civil action. ***

…. As to the first principle, the Edmonson Court found that the peremptory challenge system, as well as the jury system as a whole, “simply could not exist” without the “overt, significant participation of the government.” Id., at 622. Georgia provides for the compilation of jury lists by the board of jury commissioners in each county and establishes the general criteria for service and the sources for creating a pool of qualified jurors representing a fair cross section of the community.***

….In regard to the second principle, the Court in Edmonson found that peremptory challenges perform a traditional function of the government: “Their sole purpose is to permit litigants to assist the government in the selection of an impartial trier of fact.” Id., at 620. And, as the Edmonson  Court recognized, the jury system in turn “performs the critical governmental functions of guarding the rights of litigants and ‘ensur[ing] continued acceptance of the laws by all of the people'” Id., at 624 (citation omitted). These same conclusions apply with even greater force in the criminal context because the selection of a jury in a criminal case fulfills a unique and constitutionally compelled governmental function.***

Finally, the Edmonson Court indicated that the courtroom setting in which the peremptory challenge is exercised intensifies the harmful effects of the private litigant’s discriminatory act and contributes to its characterization as state action. These concerns are equally present in the context of a criminal trial. Regardless of who precipitated the jurors’ removal, the perception and the reality in a criminal trial will be that the court has excused jurors based on race, an outcome that will be attributed to the State.***


We hold that the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges. Accordingly, if the State demonstrates a prima facie case of racial discrimination by the defendants, the defendants must articulate a racially neutral explanation for peremptory challenges….

JUSTICE SCALIA, dissenting.

I agree with the Court that its judgment follows logically from Edmonson  v. Leesville Concrete Co., 500 U. S. 614 (1991). For the reasons given in the Edmonson  dissents, however, I think that case was wrongly decided. Barely a year later, we witness its reduction to the terminally absurd: A criminal defendant, in the process of defending himself against the state, is held to be acting on behalf of the state. JUSTICE O’CONNOR demonstrates the sheer inanity of this proposition (in case the mere statement of it does not suffice), and the contrived nature of the Court’s justifications. I see no need to add to her discussion, and differ from her views only in that I do not consider Edmonson  distinguishable in principle-except in the principle that a bad decision should not be followed logically to its illogical conclusion.

Today’s decision gives the lie once again to the belief that an activist, “evolutionary” constitutional jurisprudence always evolves in the direction of greater individual rights. In the interest of promoting the supposedly greater good of race relations in the society as a whole (make no mistake that that is what underlies all of this), we use the Constitution to destroy the ages-old right of criminal defendants to exercise peremptory challenges as they wish, to secure a jury that they consider fair. I dissent.

[omitted are concurring opinion by Justice Thomas and dissenting opinion by Justice O’Connor]


Drawing jurors from a “fair cross section of the community” involves a two-step process.  First, the local jurisdiction must use a fair process in identifying people to be summoned for potential jury duty.  Typically, courts use voter registration lists and/or driver’s license list to summon people at random.  However, some demographic groups, especially the poor, young people, and, in some places, people of color, may be underrepresented among those who register to vote or who have driver’s licenses.  If the lists from which jurors are drawn do not accurately reflect the composition of the community, this increases the likelihood that jury pools will be wealthier and whiter than the actual composition of the community.

Second, during the “voir dire” process in which attorneys question potential jurors, attorneys for each side typically can use two kinds of “challenges” to seek to remove individuals from participation in the jury.  “Challenges for cause” involve asking the judge to excuse a potential juror because there is an indication of possible bias, such as the juror being personally acquainted with the defendant or prosecutor, the juror expressing views about the case in advance, or the juror making statements indicating potential bias.  Attorneys can make as many requests for challenges for cause as they feel are needed in light of responses of individual jurors.

“Peremptory challenges” are discretionary challenges used by attorneys to remove potential jurors without giving any reasons.  These are the challenges that have been used by prosecutors to create all-white or all-male juries by eliminating people of color or women from the jury pool.  Each side has a set number of peremptory challenges that they may use.  As described in Georgia v. McCollum, the Supreme Court in a series of cases forbade the use peremptory challenges in a racially discriminatory way by prosecutors, defense attorneys, and attorneys in civil litigation.  According to the reasoning of the Court, such challenges do not impact the 6th Amendment jury trial right of the defendant, but rather constitute a 14th Amendment equal protection of the laws violation against the potential jurors by excluding them from participation in an important government process due to their race.  In J.E.B. v. Alabama ex rel. T.B. (1994), the Court ruled that peremptory challenges also cannot be used to engage in sex discrimination.  That case concerned a civil action over paternity and child support in which the state, which was seeking to force a man to pay for the child he allegedly fathered, sought to create an all-woman jury to pass judgement on the man.


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