380 U.S. 202 (1965)
Robert Swain, a Negro, was indicted and convicted of rape in the Circuit Court of Talladega County, Alabama, and sentenced to death.1 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.2 The Alabama Supreme Court affirmed the conviction, and the United States Supreme Court granted certiorari.3
Negro males over twenty-one constitute twenty-six percent of all males in Talladega County in that age group.4 Since 1953, only ten to fifteen percent of the grand and petit jury panels drawn from the jury box have been Negroes.5 Negroes served on eighty percent of the grand juries selected during this period, with the number ranging from one to three.6 There were four or five Negroes on the grand jury panel in this case, out of which two served on the grand jury that indicted Swain.7 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 1950.8 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.9
Alabama law requires the three jury commissioners in Talladega County to place on the jury roll all male citizens over twenty-one who are reputed to be honest, intelligent men and are esteemed for their integrity, good character, and sound judgment.10 In practice, however, the commissioners do not place on the roll all such citizens.11 A typical jury roll at best contains about 2,500 names, out of a total male population over twenty-one of 16,406 persons.12 Each commissioner, with the clerk's assistance, produces names of persons who in his judgment are qualified, drawing from city directories, registration lists, club and church lists, conversations with other persons in the community, and personal and business acquaintances.13
In Talladega County the petit jury venire in a capital case numbers about 100.14 After excuses and removals for cause, the venire is reduced to about 75.15 The jury is then struck, with the defense striking two veniremen and the prosecution one in alternating turns until only twelve jurors remain.16 The prosecutor struck the six Negroes available for jury service in the process of selecting the jury to try Swain.17 The record shows that no Negro has ever served on a petit jury in Talladega County within living memory.18 The prosecutor, who had served since 1953, testified that striking is done differently depending on the race of the defendant and the victim of the crime, and that in some cases the prosecution agreed with the defense to remove Negroes from the venire.19
Whether the selection of grand and petit jury panels in Talladega County systematically underrepresenting Negroes constituted purposeful discrimination violating the Equal Protection Clause?20
Purposeful discrimination may not be assumed or merely asserted.21 It must be proven, the quantum of proof necessary being a matter of federal law.22 A defendant 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.23 We cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10%.24
No. Negro males over twenty-one constitute twenty-six percent of all males in Talladega County in that age group. Only ten to fifteen percent of grand and petit jury panels since 1953 have been Negroes, with an average of six to seven Negroes on petit jury venires.
The jury commissioners drew names from city directories, registration lists, club and church lists, conversations with community members, and personal acquaintances without placing every qualified citizen on the roll.25 The commissioners denied that racial considerations entered their selections and applied the same standards to both communities.26 No evidence demonstrates that the commissioners knew the precise number of Negroes in their areas or applied different qualification standards.27
The overall percentage disparity remained small and reflected no studied attempt to include or exclude a specified number of Negroes.28 An imperfect system of selection is not equivalent to purposeful discrimination based on race.29
The underrepresentation of Negroes on grand and petit jury panels did not constitute purposeful discrimination violating the Equal Protection Clause.30
Whether the prosecutor's exercise of peremptory challenges to strike all six available Negro veniremen from the petit jury in this case denied equal protection of the laws?31
The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control.32 The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court.33 The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.34
No. After excuses and removals for cause the venire in this capital case was reduced to about seventy-five persons.35 The prosecutor struck the six Negroes available for jury service during the striking process in which the defense struck two veniremen and the prosecution one in alternating turns.36
The motion to declare the petit jury void alleged that the prosecutor could and did readily strike members of the Negro race.37 No evidence was taken on the motion beyond the record made for the motion to quash the indictment.38
The peremptory challenge system allows rejection for real or imagined partiality that is less easily designated or demonstrable. The Constitution does not require examination of the prosecutor's reasons for the exercise of challenges in any given case.39
The prosecutor's exercise of peremptory challenges to strike all six available Negro veniremen from the petit jury in this case did not deny equal protection of the laws.40
Whether the record established that prosecutors in Talladega County systematically used peremptory challenges over time to exclude Negroes from serving on petit juries in violation of the Fourteenth Amendment?41
When the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance.42 The defendant must show the prosecutor's systematic use of peremptory challenges against Negroes over a period of time.43
No. No Negro has actually served on a petit jury since about 1950 and the prosecutor struck the six Negroes in this case.44 The prosecutor testified that striking is done differently depending on the race of the defendant and the victim of the crime and that in some cases the prosecution agreed with the defense to remove Negroes.45
The record remains silent as to those instances in which the prosecution participated in striking Negroes except for the indication that the prosecutor struck the Negroes in this case.46 There is no evidence of what the prosecution did or did not do on its own account in any cases other than the one at bar.47
Petitioner therefore failed to establish the prosecutor's systematic use of peremptory challenges against Negroes over a period of time.48
The record did not establish that prosecutors in Talladega County systematically used peremptory challenges over time to exclude Negroes from serving on petit juries in violation of the Fourteenth Amendment.49
Related opinions on this issue
Joined by The Chief Justice And Mr. Justice Douglas
Justice Goldberg dissented on the ground that the prosecutor's testimony and the Alabama Supreme Court's finding that Negroes are commonly on trial venires but are always struck by attorneys demonstrated state participation in the exclusion.50 He noted that the prosecutor stated he would ask defense counsel whether they wanted Negroes on the venire and that if both agreed they would strike them first.51 Goldberg concluded that this evidence, combined with the total exclusion of Negroes from all petit juries in living memory, satisfied the prima facie case under Norris and Patton and shifted the burden to the State to justify the exclusion on nonracial grounds, a burden the State failed to meet.52
Whether the evidence of total exclusion of Negroes from petit juries since 1950, combined with the prosecutor's testimony, sufficiently demonstrated state involvement to overcome the presumption that peremptory challenges were properly exercised?53
A showing that there are qualified Negroes and that none have served makes out a prima facie case of purposeful discrimination on the part of the State.54 Unlike the selection process, which is wholly in the hands of state officers, defense counsel participate in the peremptory challenge system, and indeed generally have a far greater role than any officers of the State.55 The defendant must establish on the record the prosecutor's conduct in this regard.56
No. Negroes constitute twenty-six percent of the population eligible for jury service yet no Negro has served on a petit jury since about 1950.57 The prosecutor testified that striking is done differently depending on the race of the defendant and the victim and that agreements sometimes occurred to remove Negroes.58
Nevertheless the record contains no allegation or explanation as to when, why and under what circumstances in cases previous to this one the prosecutor used his strikes to remove Negroes.59 Because the peremptory challenge system involves participation by defense counsel as well as the prosecutor, a mere showing of total exclusion from service does not give rise to the inference of systematic discrimination on the part of the State absent a sufficient showing of the prosecutor's participation.60 The evidence therefore fell short of overcoming the presumption protecting the prosecutor's use of peremptory challenges.
The evidence of total exclusion of Negroes from petit juries since 1950, combined with the prosecutor's testimony, did not sufficiently demonstrate state involvement to overcome the presumption that peremptory challenges were properly exercised.61
Related opinions on this issue
Joined by The Chief Justice And Mr. Justice Douglas
Justice Goldberg dissented on the ground that the prosecutor's testimony established state involvement through repeated agreements with defense counsel to remove Negroes before striking began and through the prosecutor's own use of strikes when the defense did not want Negro jurors.62 He argued that the interlocking of the imperfect venire selection system, for which the State is responsible, and the peremptory challenge system made out a prima facie case that the State had not rebutted.63 Goldberg maintained that the traditional rule of Norris and Patton should apply equally to exclusion from the jury itself and that the Court had improperly heightened the defendant's burden in peremptory challenge cases.64