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decided: March 8, 1965.



Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg

Author: White

[ 380 U.S. Page 203]

 MR. JUSTICE WHITE delivered the opinion of the Court.

The petitioner, Robert Swain, a Negro, was indicted and convicted of rape in the Circuit Court of Talladega County, Alabama, and sentenced to death. His motions to quash the indictment, to strike the trial jury venire and to declare void the petit jury chosen in the case, all based on alleged invidious discrimination in the selection of jurors, were denied. The Alabama Supreme Court affirmed the conviction, 275 Ala. 508, 156 So. 2d 368, and we granted certiorari, 377 U.S. 915.

In support of his claims, petitioner invokes the constitutional principle announced in 1880 in Strauder v. West Virginia, 100 U.S. 303, where the Court struck down a state statute qualifying only white people for jury duty. Such a statute was held to contravene the central purposes of the Fourteenth Amendment: "exemption from unfriendly legislation against [Negroes] distinctively as colored, -- exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy . . . ." 100 U.S., at 308. Although a Negro defendant is not entitled to a jury containing members of his race, a State's purposeful

[ 380 U.S. Page 204]

     or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause. Ex parte Virginia, 100 U.S. 339; Gibson v. Mississippi, 162 U.S. 565. This principle was further elaborated in Carter v. Texas, 177 U.S. 442, 447, where, in respect to exclusion from grand juries, the Court said:

"Whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied . . . ."

And it has been consistently and repeatedly applied in many cases coming before this Court.*fn1 The principle of these cases is broadly based.

"For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government." Smith v. Texas, 311 U.S. 128, 130.

Further, "jurymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race." Cassell v. Texas, 339 U.S. 282, 286 (opinion of Mr. Justice Reed, announcing judgment). Nor is the

[ 380 U.S. Page 205]

     constitutional command forbidding intentional exclusion limited to Negroes. It applies to any identifiable group in the community which may be the subject of prejudice. Hernandez v. Texas, 347 U.S. 475.

But purposeful discrimination may not be assumed or merely asserted. Brownfield v. South Carolina, 189 U.S. 426; Tarrance v. Florida, 188 U.S. 519; Smith v. Mississippi, 162 U.S. 592; Bush v. Kentucky, 107 U.S. 110. It must be proven, Tarrance v. Florida, supra; Martin v. Texas, 200 U.S. 316, the quantum of proof necessary being a matter of federal law. Norris v. Alabama, 294 U.S. 587; Smith v. Texas, 311 U.S. 128. It is not the soundness of these principles, which is unquestioned, but their scope and application to the issues in this case that concern us here.


We consider first petitioner's claims concerning the selection of grand jurors and the petit jury venire. The evidence was that while Negro males over 21 constitute 26% of all males in the county in this age group, only 10 to 15% of the grand and petit jury panels drawn from the jury box since 1953 have been Negroes, there having been only one case in which the percentage was as high as 23%. In this period of time, Negroes served on 80% of the grand juries selected, the number ranging from one to three. There were four or five Negroes on the grand jury panel of about 33 in this case, out of which two served on the grand jury which indicted petitioner. Although there has been an average of six to seven Negroes on petit jury venires in criminal cases, no Negro has actually served on a petit jury since about 1950. In this case there were eight Negroes on the petit jury venire but none actually served, two being exempt and six being struck by the prosecutor in the process of selecting the jury.

[ 380 U.S. Page 206]

     It is wholly obvious that Alabama has not totally excluded a racial group from either grand or petit jury panels, as was the case in Norris v. Alabama, 294 U.S. 587; Hill v. Texas, 316 U.S. 400; Patton v. Mississippi, 332 U.S. 463; Hernandez v. Texas, 347 U.S. 475; and Reece v. Georgia, 350 U.S. 85. Moreover, we do not consider an average of six to eight Negroes on these panels as constituting forbidden token inclusion within the meaning of the cases in this Court. Thomas v. Texas, 212 U.S. 278; Akins v. Texas, 325 U.S. 398; Avery v. Georgia, 345 U.S. 559. Nor do we consider the evidence in this case to make out a prima facie case of invidious discrimination under the Fourteenth Amendment.

Alabama law requires that the three jury commissioners in Talladega County place on the jury roll all male citizens in the community over 21 who are reputed to be honest, intelligent men and are esteemed for their integrity, good character and sound judgment. Ala. Code, Tit. 30, §§ 20, 21 (1958).*fn2 In practice, however, the

[ 380 U.S. Page 207]

     commissioners do not place on the roll all such citizens, either white or colored.*fn3 A typical jury roll at best contains about 2,500 names, out of a total male population over 21, according to the latest census, of 16,406 persons. Each commissioner, with the clerk's assistance, produces for the jury list names of persons who in his judgment are qualified. The sources are city directories, registration lists, club and church lists, conversations with other persons in the community, both white and colored, and personal and business acquaintances.*fn4

[ 380 U.S. Page 208]

     Venires drawn from the jury box made up in this manner unquestionably contained a smaller proportion of the Negro community than of the white community. But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. Virginia v. Rives, 100 U.S. 313, 322-323; Gibson v. Mississippi, 162 U.S. 565; Thomas v. Texas, 212 U.S. 278, 282; Cassell v. Texas, 339 U.S. 282. Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. "Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible." Cassell v. Texas, 339 U.S. 282, 286-287 (opinion of Mr. Justice Reed, announcing judgment). We cannot say that purposeful discrimination based on race alone is satisfactorily

[ 380 U.S. Page 209]

     proved by showing that an identifiable group in a community is underrepresented by as much as 10%. See Thomas v. Texas, 212 U.S. 278, 283; Akins v. Texas, 325 U.S. 398; Cassell v. Texas, 339 U.S. 282. Here the commissioners denied that racial considerations entered into their selections of either their contacts in the community or the names of prospective jurors. There is no evidence that the commissioners applied different standards of qualifications to the Negro community than they did to the white community. Nor was there any meaningful attempt to demonstrate that the same proportion of Negroes qualified under the standards being administered by the commissioners. It is not clear from the record that the commissioners even knew how many Negroes were in their respective areas, or on the jury roll or on the venires drawn from the jury box. The overall percentage disparity has been small, and reflects no studied attempt to include or exclude a specified number of Negroes. Undoubtedly the selection of prospective jurors was somewhat haphazard and little effort was made to ensure that all groups in the community were fully represented. But an imperfect system is not equivalent to purposeful discrimination based on race.*fn5 We do not think that the burden of proof was carried by petitioner in this case.


Petitioner makes a further claim relating to the exercise of peremptory challenges to exclude Negroes from serving on petit juries.

[ 380 U.S. Page 210]

     In Talladega County the petit jury venire drawn in a criminal case numbers about 35 unless a capital offense is involved, in which case it numbers about 100. Ala. Code, Tit. 30, §§ 60, 62, 63 (1958). After excuses and removals for cause, the venire in a capital case is reduced to about 75. The jury is then "struck" -- the defense striking two veniremen and the prosecution one in alternating turns, until only 12 jurors remain. Ala. Code, Tit. 30, § 64 (1958). This essentially is the Alabama struck-jury system, applicable in all criminal cases and available in civil cases. Ala. Code, Tit. 30, §§ 54, 60 (1958). In this case, the six Negroes available for jury service were struck by the prosecutor in the process of selecting the jury which was to try petitioner.

In the trial court after the jury was selected, petitioner moved to have the jury declared void on Fourteenth Amendment grounds. Among other things the motion alleged:

"(4) That because of the systematic and arbitrary method of selecting the names of qualified male citizens, negro male citizens, by the Jury Commission of Talladega County, Alabama, the State can, and did in this case, readily strike members of the negro race and that there were only six negroes remaining on the final venire in this cause, in violation of the Fourteenth Amendment of the Constitution of the United States and also the Constitution of the State of Alabama . . . ."

The main thrust of the motion according to its terms was the striking of the six Negroes from the petit jury venire.*fn6 No evidence was taken, petitioner apparently

[ 380 U.S. Page 211]

     being content to rely on the record which had been made in connection with the motion to quash the indictment. We think the motion, seeking as it did to invalidate the alleged purposeful striking of Negroes from the jury which was to try petitioner, was properly denied.

In providing for jury trial in criminal cases, Alabama adheres to the common-law system of trial by an impartial jury of 12 men who must unanimously agree on a verdict,*fn7 the system followed in the federal courts by virtue of the Sixth Amendment. As part of this system it provides for challenges for cause and substitutes a system of strikes for the common-law method of peremptory challenge.*fn8 Alabama contends that its system of peremptory

[ 380 U.S. Page 212]

     strikes -- challenges without cause, without explanation and without judicial scrutiny -- affords a suitable and necessary method of securing juries which in fact and in the opinion of the parties are fair and impartial. This system, it is said, in and of itself, provides justification for striking any group of otherwise qualified jurors in any given case, whether they be Negroes, Catholics, accountants or those with blue eyes. Based on the history of this system and its actual use and operation in this country, we think there is merit in this position.

The peremptory challenge has very old credentials. In all trials for felonies at common law, the defendant was allowed to challenge peremptorily 35 jurors,*fn9 and the

[ 380 U.S. Page 213]

     prosecutor originally had a right to challenge any number of jurors without cause, a right which was said to tend to "infinite delayes and danger." Coke on Littleton 156 (14th ed. 1791).*fn10 Thus The Ordinance for Inquests, 33 Edw. 1, Stat. 4 (1305), provided that if "they that sue for the King will challenge any . . . Jurors, they shall assign . . . a Cause certain." So persistent was the view that a proper jury trial required peremptories on both sides, however, that the statute was construed to allow the prosecution to direct any juror after examination to "stand aside" until the entire panel was gone over and the defendant had exercised his challenges; only if there was a deficiency of jurors in the box at that point did the Crown have to show cause in respect to jurors recalled to make up the required number.*fn11 Peremptories on both sides became the settled law of England, continuing in the above form until after the separation of the Colonies.*fn12

[ 380 U.S. Page 214]

     This common law provided the starting point for peremptories in this country. In the federal system, Congress early took a part of the subject in hand in establishing that the defendant was entitled to 35 peremptories in trials for treason and 20 in trials for other felonies specified in the 1790 Act as punishable by death, 1 Stat. 119 (1790). In regard to trials for other offenses without the 1790 statute, both the defendant and the Government were thought to have a right of peremptory challenge, although the source of this right was not wholly clear.*fn13 In 1865, the Government was given by statute five peremptory challenges in capital and treason cases, the defendant being entitled to 20, and two in other cases where the right of the defendant to challenge then existed,

[ 380 U.S. Page 215]

     he being entitled to 10. 13 Stat. 500 (1865).*fn14 Subsequent enactments increased the number of challenges the Government could exercise, the Government now having an equal number with the defendant in capital cases, and six in cases where the crime is punishable by more than one year's imprisonment, the defendant or defendants having ten.*fn15

The course in the States apparently paralleled that in the federal system. The defendant's right of challenge was early conferred by statute, the number often corresponding to ...

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