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Jury Selection and Bias Under the Sixth Amendment

The right to a jury trial is an essential pillar of criminal law in the United States. The Sixth Amendment guarantees that those accused of a crime be tried by a local, impartial jury. However, over the years the Supreme Court has had to decide when and to what degree bias can be tolerated on a jury. Moreover, the methods used for selecting a jury (voir dire and peremptory challenges) must comply with the Sixth Amendment.

In addition to the right to a fair and public jury trial, you have the right to an attorney. If you or someone you know faces criminal charges, it's important to have someone on your side to protect your constitutional rights.

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What the Sixth Amendment Says

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

What It Means

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The requirement of an impartial jury is secured not only by the Sixth Amendment, which is as applicable to the states as to the Federal Government,1 but also by the Due Process and Equal Protection Clauses of the Fourteenth Amendment,2 and perhaps by the Due Process Clause of the Fifth Amendment. In addition, the Court has directed its supervisory power over the federal system to the issue.3 Even before the Court extended the right to a jury trial to state courts, it was firmly established that, if a state chose to provide juries, the juries had to be impartial.4

The Impartial Jury 

Impartiality is a two-fold requirement. First, the selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial.5 This requirement applies only to jury panels or venires from which petit juries are chosen, and not to the composition of the petit juries themselves.6

In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show:

  1. That the group alleged to be excluded is a 'distinctive' group in the community;
  2. The representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
  3. This underrepresentation is due to the systematic exclusion of the group in the jury-selection process.7

Further, once a plaintiff demonstrates a prima facie violation, the defendant faces a formidable burden: the jury selection process may be sustained under the Sixth Amendment only if those aspects of the process that result in the disproportionate exclusion of a distinctive group, such as exemption criteria, manifestly and primarily advance a significant state interest.8 Thus, in one case the Court voided a selection system under which no woman would be called for jury duty unless she had previously filed a written declaration of her desire to be subject to service, and, in another, it invalidated a state selection system granting women who so requested an automatic exemption from jury service.9

Second, there must be an assurance that the jurors chosen are unbiased, i.e., willing to decide the case on the basis of the evidence presented. The Court has held that in the absence of an actual showing of bias, a defendant in the District of Columbia is not denied an impartial jury when he is tried before a jury composed primarily of government employees.10 A violation of a defendant's right to an impartial jury does occur, however, when the jury or any of its members is subjected to pressure or influence which could impair freedom of action; the trial judge should conduct a hearing in which the defense participates to determine whether impartiality has been undermined.11

What Makes a Jury Biased?

Exposure of the jury to possibly prejudicial material and disorderly courtroom activities may deny impartiality and must be inquired into.12 Private communications, contact, or tampering with a jury, or the creation of circumstances raising the dangers thereof, is not to be condoned.13 When the locality of the trial has been saturated with publicity about a defendant so that it is unlikely that he can obtain a disinterested jury, he is constitutionally entitled to a change of venue.14 It is undeniably a violation of due process to subject a defendant to trial in an atmosphere of mob or threatened mob domination.15

Because it is too much to expect that jurors can remain uninfluenced by evidence they receive even though they are instructed to use it for only a limited purpose and to disregard it for other purposes, the Court will not permit a confession to be submitted to the jury without a prior determination by the trial judge that it is admissible. A defendant is denied due process, therefore, if he is convicted by a jury that has been instructed to first determine the voluntariness of a confession and then to disregard the confession if it is found to be inadmissible.16 Similarly invalid is a jury instruction in a joint trial to consider a confession only with regard to the defendant against whom it is admissible, and to disregard that confession as against a co-defendant which it implicates.17

Nonetheless, there are limits on the extent to which an inquiry can be made into whether a criminal defendant's right to a jury trial has been denied by a biased jury. With origins dating from the English common law, a rule of evidence has been adopted by the federal rules of evidence18 and by the vast majority of the states19 that forbids the impeachment or questioning of a verdict by inquiring into the internal deliberations of the jury.20

The no impeachment rule, which aims to promote full and vigorous discussion by jurors and to preserve the stability of jury verdicts, has limited the ability of criminal defendants to argue that a jury's internal deliberations demonstrated bias amounting to a deprivation of the right to a jury trial.21 Indeed, the Court has held that the Sixth Amendment justifies an exception to the no impeachment rule in only the gravest and most important cases.22

As a result, the Court has rejected a Sixth Amendment exception to the rule when evidence existed that jurors were under the influence of alcohol and drugs during the trial.23 Likewise, the Court concluded that the no-impeachment rule prevented evidence from being introduced indicating that a jury forewoman had failed to disclose a prodefendant bias during jury selection (voir dire) and allegedly influenced the jury with such bias.24 In the Court's view, three safeguards - (1) the voir dire process, (2) the ability for the court and counsel to observe the jury during trial, and (3) the potential for jurors to report untoward behavior to the court before rendering a verdict - adequately protect Sixth Amendment interests while preserving the values underlying the no impeachment rule.25

However, in Pena-Rodriguez v. Colorado, the Court for the first time recognized a Sixth Amendment exception to the no-impeachment rule.26 In that case, a criminal defendant contended that his conviction by a Colorado jury for harassment and unlawful sexual contact should be overturned on constitutional grounds because evidence from two jurors revealed that a fellow juror had expressed anti-Hispanic bias toward the petitioner and his alibi witness during deliberations.27 The Court agreed, concluding that where a juror makes a clear statement indicating that he relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way.28 In so holding, Pena-Rodriguez emphasized the imperative to purge racial prejudice from the administration of justice that underlies the Fourteenth Amendment, which, in turn, makes the Sixth Amendment applicable to the states.29 Contrasting the instant case from earlier rulings that involved anomalous behavior from a single jury—or juror—gone off course, the Court noted that racial bias in the judicial system was a familiar and recurring evil that required the judiciary to prevent systematic injury to the administration of justice.30 Moreover, the Court emphasized pragmatic rationales for its holding, noting that other checks on jury bias, such as questioning during voir dire or jurors reporting inappropriate statements during the course of deliberations, unlikely would disclose racial bias.31

Jury Bias and the Death Penalty

Inquiries into jury basis have arisen in the context of the imposition of the death penalty. In Witherspoon v. Illinois,32 the Court held that the exclusion in capital cases of jurors conscientiously scrupled about capital punishment, without inquiring whether they could consider the imposition of the death penalty in the appropriate case, violated a defendant's constitutional right to an impartial jury. A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.33 A jury, the Court wrote, must express the conscience of the community on the ultimate question of life or death, and the automatic exclusion of all with generalized objections to the death penalty stacked the deck and made of the jury a tribunal organized to return a verdict of death.34 A court may not refuse a defendant's request to examine potential jurors to determine whether they would vote automatically to impose the death penalty; general questions about fairness and willingness to follow the law are inadequate.35

In Wainwright v. Witt, the Court held that the proper standard for exclusion is whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'36 Thus, to be excluded, a juror need not indicate that he would automatically vote against the death penalty, nor need his bias be proved with 'unmistakable clarity.'37 Instead, a juror may be excused for cause where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.38 Persons properly excludable under Witherspoon may also be excluded from the guilt/innocence phase of a bifurcated capital trial.39 It had been argued that to exclude such persons from the guilt/innocence phase would result in a jury somewhat more predisposed to convict, and that this would deny the defendant a jury chosen from a fair cross-section. The Court rejected this argument, concluding that it is simply not possible to define jury impartiality . . . by reference to some hypothetical mix of individual viewpoints.40 Moreover, the state has an entirely proper interest in obtaining a single jury that could impartially decide all of the issues in [a] case, and need not select separate panels and duplicate evidence for the two distinct but interrelated functions.41 For the same reasons, there is no violation of the right to an impartial jury if a defendant for whom capital charges have been dropped is tried, along with a codefendant still facing capital charges, before a death-qualified jury.42

In Uttecht v. Brown,43 the Court summed up four principles that it derived from Witherspoon and Witt:

First, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause.

Second, the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes.

Third, to balance these interests, a juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible.

Fourth, in determining whether the removal of a potential juror would vindicate the State's interest without violating the defendant's right, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts.44 If there is ambiguity in a prospective juror's statement, a court is entitled to resolve it in favor of the State.45

Exclusion of one juror qualified under Witherspoon constitutes reversible error, and the exclusion may not be subjected to harmless error analysis.46 However, a court's error in refusing to dismiss for cause a prospective juror prejudiced in favor of the death penalty does not deprive a defendant of his right to trial by an impartial jury if he is able to exclude the juror through exercise of a peremptory challenge.47 The relevant inquiry is on the jurors who ultimately sat, the Court declared, rejecting as overly broad the assertion in Gray that the focus instead should be on 'whether the composition of the jury panel as a whole could have been affected by the trial court's error.'48

Voir Dire

It is the function of the voir dire to give the defense and the prosecution the opportunity to inquire into, or have the trial judge inquire into, possible grounds of bias or prejudice that potential jurors may have, and to acquaint the parties with the potential jurors.49 It is good ground for challenge for cause that a juror has formed an opinion on the issue to be tried, but not every opinion which a juror may entertain necessarily disqualifies him. The judge must determine whether the nature and strength of the opinion raise a presumption against impartiality.50 It suffices for the judge to question potential jurors about their ability to put aside what they had heard or read about the case, listen to the evidence with an open mind, and render an impartial verdict; the judge's refusal to go further and question jurors about the contents of news reports to which they had been exposed did not violate the Sixth Amendment.51

Jury Selection in Practice: Derek Chauvin Trial Jury Selection Explained

Under some circumstances, it may be constitutionally required that questions specifically directed to the existence of racial bias must be asked. Thus, in a situation in which defendant, a black man, alleged that he was being prosecuted on false charges because of his civil rights activities in an atmosphere perhaps open to racial appeals, prospective jurors must be asked about their racial prejudice, if any.52 A similar rule applies in some capital trials, where the risk of racial prejudice is especially serious in light of the complete finality of the death sentence. A defendant accused of an interracial capital offense is entitled to have prospective jurors informed of the victim's race and questioned as to racial bias.53 But in circumstances not suggesting a significant likelihood of racial prejudice infecting a trial, as when the facts are merely that the defendant is black and the victim white, the Constitution is satisfied by a more generalized but thorough inquiry into the impartiality of the veniremen.54

Peremptory Challenges

Although the government is not constitutionally obligated to allow peremptory challenges,55 typically a system of peremptory challenges has existed in criminal trials, in which both prosecution and defense may, without stating any reason, excuse a certain number of prospective jurors.56 Although, in Swain v. Alabama,57 the Court held that a prosecutor's purposeful exclusion of members of a specific racial group from the jury would violate the Equal Protection Clause, it posited so difficult a standard of proof that defendants could seldom succeed. The Swain standard of proof was relaxed in Batson v. Kentucky,58 with the result that a defendant may establish an equal protection violation resulting from a prosecutor's use of peremptory challenges to systematically exclude black prospective jurors.59 A violation can occur whether or not the defendant and the excluded jurors are of the same race.60 Racially discriminatory use of peremptory challenges does not, however, constitute a violation of the Sixth Amendment, the Court ruled in Holland v. Illinois.61 The Sixth Amendment no more forbids the prosecutor to strike jurors on the basis of race than it forbids him to strike them on the basis of innumerable other generalized characteristics.62 To rule otherwise, the Court reasoned, would cripple the device of peremptory challenge and thereby undermine the Amendment's goal of impartiality with respect to both contestants.63

Local Jury Requirement

Article III, § 2 requires that federal criminal cases be tried by a jury in the state and district in which the offense was committed,64 but much criticism arose over the absence of any guarantee that the jury be drawn from the vicinage or neighborhood of the crime.65 Madison's efforts to write into the Bill of Rights an express vicinage provision were rebuffed by the Senate, and the present language was adopted as a compromise.66 The provisions limit the Federal Government only.67

An accused cannot be tried in one district under an indictment showing that the offense was committed in another;68 the place where the offense is charged to have been committed determines the place of trial.69 Thus, a defendant cannot be tried in Missouri for money-laundering if the charged offenses occurred in Florida and there was no evidence that the defendant had been involved with the receipt or transportation of the proceeds from Missouri.70 In a prosecution for conspiracy, the accused may be tried in any state and district where an overt act was performed.71

Where a United States Senator was indicted for agreeing to receive compensation for services to be rendered in a proceeding before a government department, and it appeared that a tentative arrangement for such services was made in Illinois and confirmed in St. Louis, the defendant was properly tried in St. Louis, although he was not physically present in Missouri when notice of ratification was dispatched.72 The offense of obtaining transportation of property in interstate commerce at less than the carrier's published rates,73 or the sending of excluded matter through the mails,74 may be made triable in any district through which the forbidden transportation is conducted. By virtue of a presumption that a letter is delivered in the district to which it is addressed, the offense of scheming to defraud a corporation by mail was held to have been committed in that district although the letter was posted elsewhere.75 The Constitution does not require any preliminary hearing before the issuance of a warrant for removal of an accused to the court having jurisdiction of the charge.76 The assignment of a district judge from one district to another, conformably to statute, does not create a new judicial district whose boundaries are undefined nor subject the accused to trial in a district not established when the offense with which he is charged was committed.77 For offenses against federal laws not committed within any state, Congress has the sole power to prescribe the place of trial; such an offense is not local and may be tried at such place as Congress may designate.78 The place of trial may be designated by statute after the offense has been committed.79

More on the Sixth Amendment


  1. Irvin v. Dowd, 366 U.S. 717 (1961)Turner v. Louisiana, 379 U.S. 466 (1965)Parker v. Gladden, 385 U.S. 363 (1966)Witherspoon v. Illinois, 391 U.S. 510 (1968); Gonzales v. Beto, 405 U.S. 1052 (1972).
  2. Thus, it violates the Equal Protection Clause to exclude black citizens from grand and petit juries, Strauder v. West Virginia, 100 U.S. 303 (1880)Alexander v. Louisiana, 405 U.S. 625 (1972), whether defendant is or is not black, Peters v. Kiff, 407 U.S. 493 (1972), and exclusion of potential jurors because of their national ancestry is unconstitutional, at least where defendant is of that ancestry as well, Hernandez v. Texas, 347 U.S. 475 (1954)Castaneda v. Partida, 430 U.S. 482 (1977).
  3. In the exercise of its supervisory power over the federal courts, the Court has permitted any defendant to challenge the arbitrary exclusion from jury service of his own or any other class. Glasser v. United States, 315 U.S. 60, 83–87 (1942)Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946)Ballard v. United States, 329 U.S. 187 (1946). In Taylor v. Louisiana, 419 U.S. 522 (1975), and Duren v. Missouri, 439 U.S. 357 (1979), male defendants were permitted to challenge the exclusion of women as a Sixth Amendment violation.
  4. Turner v. Louisiana, 379 U.S. 466 (1965).
  5. Taylor v. Louisiana, 419 U.S. 522, 528 (1975)See also Williams v. Florida, 399 U.S. 78, 100 (1970)Brown v. Allen, 344 U.S. 443, 474 (1953). In Fay v. New York, 332 U.S. 261 (1947), and Moore v. New York, 333 U.S. 565 (1948), the Court in 5-to-4 decisions upheld state use of blue-ribbon juries from which particular groups, such as laborers and women, had been excluded. With the extension of the jury trial provision and its fair cross-section requirement to the States, the opinions in these cases must be considered tenuous, but the Court has reiterated that defendants are not entitled to a jury of any particular composition. Taylor, 419 U.S. at 538. Congress has implemented the constitutional requirement by statute in federal courts by the Federal Jury Selection and Service Act of 1968, Pub. L. No. 90-274, 82 Stat. 53, 28 U.S.C. §§ 1861 et seq.
  6. Lockhart v. McCree, 476 U.S. 162 (1986). We have never invoked the fair cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large. 476 U.S. at 173. The explanation is that the fair cross-section requirement is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does). Holland v. Illinois, 493 U.S. 474, 480 (1990) (emphasis original).
  7. Duren v. Missouri, 439 U.S. 357, 364 (1979). To show that underrepresentation resulted from systematic exclusion requires rigorous evidence beyond merely pointing to a single factor or a host of factors that might have caused fewer members of a distinct group to have been included. Berghuis v. Smith, 559 U.S. 314 (2010).
  8. 439 U.S. at 367–68.
  9. Taylor v. Louisiana, 419 U.S. 522 (1975)Duren v. Missouri, 439 U.S. 357 (1979).
  10. Frazier v. United States, 335 U.S. 497 (1948)Dennis v. United States, 339 U.S. 162 (1950). On common-law grounds, the Court in Crawford v. United States, 212 U.S. 183 (1909), disqualified such employees, but a statute removing the disqualification because of the increasing difficulty in finding jurors in the District of Columbia was sustained in United States v. Wood, 299 U.S. 123 (1936).
  11. Remmer v. United States, 350 U.S. 377 (1956) (attempted bribe of a juror reported by him to authorities); Smith v. Phillips, 455 U.S. 209 (1982) (during trial one of the jurors had been actively seeking employment in the District Attorney's office).
  12. E.g.Irvin v. Dowd, 366 U.S. 717 (1961)Sheppard v. Maxwell, 384 U.S. 333 (1966). Exposure of the jurors to knowledge about the defendant's prior criminal record and activities is not alone sufficient to establish a presumption of reversible prejudice, but on voir dire jurors should be questioned about their ability to judge impartially. Murphy v. Florida, 421 U.S. 794 (1975). The Court indicated that under the same circumstances in a federal trial it would have overturned the conviction pursuant to its supervisory power. Id. at 797–98, citing Marshall v. United States, 360 U.S. 310 (1959). Essentially, the defendant must make a showing of prejudice into which the court may then inquire. Chandler v. Florida, 449 U.S. 560, 575, 581 (1981)Smith v. Phillips, 455 U.S. 209, 215–18 (1982)Patton v. Yount, 467 U.S. 1025 (1984).
  13. Remmer v. United States, 347 U.S. 227 (1954)See Turner v. Louisiana, 379 U.S. 466 (1965) (placing jury in charge of two deputy sheriffs who were principal prosecution witnesses at defendant's jury trial denied him his right to an impartial jury); Parker v. Gladden, 385 U.S. 363 (1966) (influence on jury by prejudiced bailiff). Cf. Gonzales v. Beto, 405 U.S. 1052 (1972).
  14. Irvin v. Dowd, 366 U.S. 717 (1961) (felony); Rideau v. Louisiana, 373 U.S. 723 (1963) (felony); Groppi v. Wisconsin, 400 U.S. 505 (1971) (misdemeanor). Important factors to be considered, however, include the size and characteristics of the community in which the crime occurred; whether the publicity was blatantly prejudicial; the time elapsed between the publicity and the trial; and whether the jurors' verdict supported the theory of prejudice. Skilling v. U.S., 561 U.S. 358, 381–84 (2010).
  15. Frank v. Mangum, 237 U.S. 309 (1915)Irvin v. Dowd, 366 U.S. 717 (1961)Sheppard v. Maxwell, 384 U.S. 333 (1966).
  16. Jackson v. Denno, 378 U.S. 368 (1964) (overruling Stein v. New York, 346 U.S. 156 (1953)).
  17. Bruton v. United States, 391 U.S. 123 (1968) (overruling Delli Paoli v. United States, 352 U.S. 232 (1957)). The rule applies to the states. Roberts v. Russell, 392 U.S. 293 (1968)But see Nelson v. O'Neil, 402 U.S. 622 (1971) (co-defendant's out-of-court statement is admissible against defendant if co-defendant takes the stand and denies having made the statement).
  18. See Fed. R. Evid. 606(b)(1) (During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment.).
  19. See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 858 (2017) (noting that 42 jurisdictions follow the federal rule).
  20. The no-impeachment rule does have three central exceptions, allowing a juror to testify about (1) extraneous prejudicial information improperly brought to the jury's attention; (2) outside influences brought to bear on any juror; and (3) a mistake made in entering the verdict on the verdict form. See Fed. R. Evid. 606(b)(2). As a result, the rule prohibits all juror testimony excepting for when the jury considers prejudicial extraneous evidence or is subject to other outside influence. See Pena-Rodriguez, 137 S. Ct. at 864.
  21. See Pena-Rodriguez , 137 S. Ct. at 865.
  22. See McDonald v. Pless, 238 U.S. 264, 269 (1915).
  23. See Tanner v. United States, 483 U.S. 107, 127 (1987).
  24. See Warger v. Shauers, 574 U.S. 40, 44–45 (2014).
  25. See Tanner, 483 U.S. at 127. In addition, while the no-impeachment rule, by its very nature, prohibits testimony by jurors, evidence of misconduct other than juror testimony can be used to impeach the verdict. Id.
  26. See Pena-Rodriguez, 137 S. Ct. at 869.
  27. Id. at 861–62.
  28. Id. at 869. The Court noted that [n]ot every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry, but that instead, the no-impeachment rule does not govern when a juror makes a statement exhibiting overt racial bias that was a significant motivating factor in the juror's vote to convict. Id. If the Pena-Rodriguez exception to the no-impeachment rule applies, the trial court must examine the underlying evidence and determine whether a retrial is necessary in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence. Id.
  29. Id. at 867.
  30. Id. at 868–69.
  31. Id. ([T]his Court has noted the dilemma faced by trial court judges and counsel in deciding whether to explore potential racial bias at voir dire . . . The stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the court of juror deliberations.).
  32. 391 U.S. 510 (1968).
  33. 391 U.S. at 519.
  34. 391 U.S. at 519, 521, 523. The Court thought the problem went only to the issue of the sentence imposed and saw no evidence that a jury from which death-scrupled persons had been excluded was more prone to convict than were juries on which such person sat. Cf. Bumper v. North Carolina, 391 U.S. 543, 545 (1968)Witherspoon was given added significance when, in Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976), the Court held mandatory death sentences unconstitutional and ruled that the jury as a representative of community mores must make the determination as guided by legislative standards. See also Adams v. Texas, 448 U.S. 38 (1980) (holding Witherspoon applicable to bifurcated capital sentencing procedures and voiding a statute permitting exclusion of any juror unable to swear that the existence of the death penalty would not affect his deliberations on any issue of fact).
  35. Morgan v. Illinois, 504 U.S. 719 (1992).
  36. 469 U.S. 412, 424 (1985), quoting Adams v. Texas, 448 U.S. 38, 45 (1980).
  37. 469 U.S. at 424. AccordDarden v. Wainwright, 477 U.S. 168 (1986) (appropriateness of exclusion should be determined by context, including excluded juror's understanding based on previous questioning of other jurors).
  38. See Witt, 469 U.S. at 425–26.
  39. Lockhart v. McCree, 476 U.S. 162 (1986).
  40. 476 U.S. at 183.
  41. 476 U.S. at 180.
  42. Buchanan v. Kentucky, 483 U.S. 402 (1987).
  43. 551 U.S. 1 (2007).
  44. 551 U.S. at 9 (citations omitted). In Uttecht, the Court reasoned that deference was owed to trial courts because the lower court is in a superior position to determine the demeanor and qualifications of a potential juror. See id. at 22. In White v. Wheeler, the Court recognized that a trial judge's decision to excuse a prospective juror in a death penalty case was entitled to deference even when the judge does not make the decision to excuse the juror contemporaneously with jury selection (voir dire). See 136 S. Ct. 456, 461–62 (2015) (per curiam). The Court explained that the deference due under Uttecht to a trial judge's decision was not limited to the judge's evaluation of a juror's demeanor, but extended to a trial judge's consideration of the substance of a juror's response. See id. at 462. When a trial judge chooses to reflect and deliberate over the record regarding whether to excuse a juror for a day following the questioning of the prospective juror, that judge's decision should be commended and is entitled to substantial deference. See id. at 462.
  45. See Uttecht, 551 U.S. at 7 (internal citations omitted).
  46. Gray v. Mississippi, 481 U.S. 648 (1987).
  47. Ross v. Oklahoma, 487 U.S. 81 (1988). The same rule applies in the federal setting. United States v. Martinez-Salazar, 528 U.S. 304 (2000).
  48. 487 U.S. at 86, 87.
  49. Lewis v. United States, 146 U.S. 370 (1892)Pointer v. United States, 151 U.S. 396 (1894).
  50. Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878)See Witherspoon v. Illinois, 391 U.S. 510, 513–15, 522 n.21 (1968).
  51. Mu'Min v. Virginia, 500 U.S. 415 (1991).
  52. Ham v. South Carolina, 409 U.S. 524 (1973).
  53. Turner v. Murray, 476 U.S. 28 (1986). The quotation is from a section of Justice White's opinion not adopted as the opinion of the Court. Id. at 35.
  54. Ristaino v. Ross, 424 U.S. 589 (1976). The Court noted that under its supervisory power it would require a federal court faced with the same circumstances to propound appropriate questions to identify racial prejudice if requested by the defendant. Id. at 597 n.9. See Aldridge v. United States, 283 U.S. 308 (1931)But see Rosales-Lopez v. United States, 451 U.S. 182 (1981), in which the trial judge refused a defense request to inquire about possible bias against Mexicans. A plurality apparently adopted a rule that, all else being equal, the judge should necessarily inquire about racial or ethnic prejudice only in cases of violent crimes in which the defendant and victim are members of different racial or ethnic groups, id. at 192, a rule rejected by two concurring Justices. Id. at 194. Three dissenting Justices thought the judge must always ask when defendant so requested. Id. at 195.
  55. This Court has long recognized that peremptory challenges are not of federal constitutional dimension. Rivera v. Illinois, 129 S. Ct. 1446, 1450 (2009) (internal quotation marks omitted) (state trial court's erroneous denial of a defendant's peremptory challenge does not warrant reversal of conviction if all seated jurors were qualified and unbiased).
  56. Cf. Stilson v. United States, 250 U.S. 583, 586 (1919), holding that it is no violation of the guarantee to limit the number of peremptory challenges to each defendant in a multi-party trial.
  57. 380 U.S. 202 (1965).
  58. 476 U.S. 79 (1986).
  59. See Fourteenth Amendment discussion of Equal Protection and Race, infra.
  60. Powers v. Ohio, 499 U.S. 400 (1991) (defendant has standing to raise equal protection rights of excluded juror of different race).
  61. 493 U.S. 474 (1990). But see Trevino v. Texas, 503 U.S. 562 (1992) (claim of Sixth Amendment violation resulting from racially discriminatory use of peremptory challenges treated as sufficient to raise equal protection claim under Swain and Batson).
  62. 493 U.S. at 487.
  63. 493 U.S. at 484. As a consequence, a defendant who uses a peremptory challenge to correct the court's error in denying a for-cause challenge may have no Sixth Amendment cause of action. Peremptory challenges are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. Ross v. Oklahoma, 487 U.S. 81, 88 (1988). Similarly, there is no due process violation, at least where state statutory law requires use of peremptory challenges to cure erroneous refusals by the court to excuse jurors for cause. It is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise. Id.
  64. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crime shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by law have directed.
  65. Vicinage means neighborhood, and vicinage of the jury means jury of the neighborhood or, in medieval England, jury of the County. 4 W. Blackstone, Commentaries on the Laws of England *350-351 (T. Cooley, 4th ed. 1899). See 3 J. Story, Commentaries on the Constitution of the United States 1775–85 (1833).
  66. The controversy is conveniently summarized in Williams v. Florida, 399 U.S. 78, 92–96 (1970).
  67. Nashville, C. & St. L. R.R. v. Alabama, 128 U.S. 96 (1888).
  68. Salinger v. Loisel, 265 U.S. 224 (1924).
  69. Beavers v. Henkel, 194 U.S. 73, 83 (1904). For some more recent controversies about the place of the commission of the offense, see United States v. Cores, 356 U.S. 405 (1958), and Johnston v. United States, 351 U.S. 215 (1956).
  70. United States v. Cabrales, 524 U.S. 1 (1998).
  71. Brown v. Elliott, 225 U.S. 392 (1912)Hyde v. United States, 225 U.S. 347 (1912)Haas v. Henkel, 216 U.S. 462 (1910).
  72. Burton v. United States, 202 U.S. 344 (1906).
  73. Armour Packing Co. v. United States, 209 U.S. 56 (1908).
  74. United States v. Johnson, 323 U.S. 273, 274 (1944).
  75. Hagner v. United States, 285 U.S. 427, 429 (1932).
  76. United States ex rel. Hughes v. Gault, 271 U.S. 142 (1926)Cf. Tinsley v. Treat, 205 U.S. 20 (1907)Beavers v. Henkel, 194 U.S. 73, 84 (1904).
  77. Lamar v. United States, 241 U.S. 103 (1916).
  78. Jones v. United States, 137 U.S. 202, 211 (1890)United States v. Dawson, 56 U.S. (15 How.) 467, 488 (1853).
  79. Cook v. United States, 138 U.S. 157, 182 (1891)See also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 250–54 (1940)United States v. Johnson, 323 U.S. 273 (1944).
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