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Copyright 1985 The Columbia Law Review.

Columbia Law Review

NOTE: RETHINKING LIMITATIONS ON THE PEREMPTORY CHALLENGE.

OCTOBER, 1985

Tulane Law Review

85 Colum. L. Rev. 1357

Author

Roger C. Harper

Excerpt

INTRODUCTION

In McCray v. Abrams, 1 the Second Circuit held that a black defendant establishes a prima facie violation of his sixth amendment 2 right to a jury drawn from a fair cross section of the community by showing that the prosecution used eight of its first eleven peremptory challenges to eliminate all of the black and Hispanic prospective jurors. The ground-breaking decision requires a prosecutor to explain her reasons for peremptory challenges when a cognizable group is disproportionately excluded, 3 and is in direct conflict with the law of other circuits. 4 It also reflects dissatisfaction with the Supreme Court's decision in Swain v. Alabama, 5 where the Court held that the equal protection clause of the fourteenth amendment 6 does not prohibit the the peremptory challenge of all black venirepersons in a single case. 7 This Note suggests that the McCray court's sixth amendment limitation on the peremptory challenge is flawed. The Note argues, however, that the Supreme Court should reconsider Swain and limit the peremptory challenge under the equal protection clause.

Part I outlines the role of the peremptory challenge and notes that the Swain presumption that prosecutors properly use peremptory challenges precludes virtually all equal protection claims of improper systematic exclusion. It then traces the development of fair cross section theory under the sixth amendment and under similar state constitutional provisions, and describes the related limitations that courts, including the McCray court, have placed on the peremptory challenge.

The Note then suggests ...
 
 
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