Curbing the Prosecutor's Abuse of the Peremptory Challenge

JurisdictionColorado,United States,Federal
CitationVol. 14 No. 9 Pg. 1629
Publication year1985
14 Colo.Law. 1629
Colorado Lawyer

1985, September, Pg. 1629. Curbing the Prosecutor's Abuse of the Peremptory Challenge


Vol. 14, No. 9, Pg. 1629

Curbing the Prosecutor's Abuse of the Peremptory Challenge

by Mary G. Allen

Recently the Colorado and U.S. Supreme Courts agreed to consider the issue of whether a prosecutor's use of peremptory challenges to exclude prospective jurors on the basis of race deprives a defendant in a criminal case of the right to be tried by an impartial jury.(fn1) The exercise of peremptory challenges traditionally has been viewed as almost totally beyond judicial control. However, the discriminatory use of peremptory challenges by a prosecutor to remove members of cognizable groups from the jury because of their race has been a recurring problem of increasing concern to the courts.

The racially motivated exercise of peremptory challenges seriously undermines the representative character of the jury actually selected, artificially limits the opportunities for minority participation in the judicial system, and threatens to erode public confidence in the administration of justice.(fn2) Nonetheless, the twenty-year-old U.S. Supreme Court decision in Swain v. Alabama has presented an almost insurmountable obstacle for defendants seeking to limit prosecutorial abuse of peremptories.(fn3) During the past seven years, several state and federal courts have responded to the heavy criticism of Swain by rejecting the notion that peremptory challenges are inherently non-reviewable.(fn4)

People v. Fields

The Colorado Supreme Court has agreed to review the holding in People v. Fields,(fn5) a holding which followed Swain. The Court of Appeals in Fields refused to hold that the prosecution's exercise of peremptory challenges against minority group members of the jury panel deprived the defendant of the federal and state constitutional rights to trial by impartial jury.(fn6) The case involved charges of first degree murder and two counts of attempted first degree murder stemming from a shooting incident marked by racial overtones. During the jury selection process,(fn7) the prosecution and defendant each were allowed ten peremptory challenges and two additional peremptory challenges for seating two alternate jurors.

After the exercise of six peremptory challenges by the prosecution, the defendant moved to quash the jury panel on the grounds that the prosecution improperly was using its peremptories to exclude minority group members from the jury. In support of the motion, the defendant pointed out that the prosecution had directed three of its first six challenges to Spanish-surnamed persons. The prosecution did not respond to the motion, and it was denied by the trial judge who noted that the defense had excused the only other remaining Spanish-surnamed juror. Thus, the defendant, who was black, was tried and convicted by an all white jury.

The court in Fields rejected the defendant's claim of prosecutorial abuse of the peremptory challenge on the grounds that neither the federal nor state constitution requires judicial scrutiny of the exercise of peremptories. In so holding, the court "embrace[d] the rule set forth in ... Swain," particularly the Swain premise that the use of peremptories was essentially non-reviewable. Writing for the court, Judge Berman concluded:

In light of the inherent value to both the defendant and the People of the peremptory challenge, we refuse to cripple either party in its use of such an important tool by requiring that each party justify with "good cause" every exercise of its right.(fn8)

Certiorari was granted by the Colorado Supreme Court in Fields to review the issue of whether the prosecutor's use of its peremptory challenges violated the defendant's right to an impartial trial
Swain v. Alabama

The U.S. Supreme Court finally has agreed to re-examine the issues in Swain.(fn9) Swain thus far is the only U.S. Supreme Court case to consider the constitutionality of the prosecution's use of peremptory challenges to eliminate minority group prospective jurors on the basis of race. The defendant in Swain was a black youth convicted by an all white jury of raping a white girl. There were eight...

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