Teague v. Lane

PETITIONER:Teague
RESPONDENT:Lane
LOCATION:Circuit Court of Orange County, Florida

DOCKET NO.: 87-5259
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 489 US 288 (1989)
ARGUED: Oct 04, 1988
DECIDED: Feb 22, 1989

ADVOCATES:
David E. Bindi – on behalf of the Respondents
Patricia Unsinn – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – October 04, 1988 in Teague v. Lane

William H. Rehnquist:

We’ll hear evidence next in Number 87-5259, Frank Dean Teague against Michael Lane.

You may proceed whenever you’re ready, Ms. Unsinn.

Patricia Unsinn:

Mr. Chief Justice, and may it please the Court, the petitioner in this case was tried before a jury from which all black representation was removed by use of the peremptory challenge.

Although 11 of the 32 jurors who withstood challenges for cause were black, the prosecutor exercised all 10 of the peremptory challenges allotted to him by statute to remove 10 black jurors from that panel.

The defense exercised one of its challenges against the remaining black juror… she was married to a police officer, and his client was charged with attempted murder of a police officer.

The result was that the petitioner was tried before a jury which was not representative of the community which was 25 percent black.

This case thus presents the question of whether the Sixth Amendment bars the prosecutor’s use of the peremptory challenge to defeat the possibility that the petit jury will be representative of a fair cross section of the community.

Sandra Day O’Connor:

Ms. Unsinn, may I interrupt you there to inquire whether… if this Court were to adopt the other part of Justice Harlan’s view of retroactivity on collateral review, whether we would be able to reach your Sixth Amendment argument at all?

Patricia Unsinn:

Yes, Judge, I believe you would because–

Sandra Day O’Connor:

Why?

This comes to us on Federal habeas, right?

Patricia Unsinn:

–Yes, Judge, but–

Sandra Day O’Connor:

And under Justice Harlan’s view, any new right recognized wouldn’t be retroactive.

And wouldn’t we just be rendering an advisory opinion, then, on the Sixth Amendment question if we were to adopt that view?

Patricia Unsinn:

–No, Justice O’Connor, we don’t believe that we’re proposing any new rule in our Sixth Amendment argument.

We’re merely asking this Court to apply its precedents to a different factual situation than it has previously addressed.

Sandra Day O’Connor:

Well, suppose we continue to follow our holding in Allen against Hardy, rather than your view of when that rule was adopted.

Patricia Unsinn:

Judge, my answer remains the same.

We’re not proposing a new or a different rule.

The Respondents… this Court is taking great care to ensure that the jury pool from which the petit jury is selected is representative of the community.

It’s the Respondent’s position, and they find support for this position in language of this Court in Lockhart v. McCree, that extension of the fair cross section requirement to the petit jury would be unworkable and unsound.

That so long as all distinctive groups in the community are represented on the jury pool… the Sixth Amendment imposes no limitation on the ability of the prosecutor to remove those same distinctive groups from the petit jury.

We suggest that accepting this argument would make the fair cross section requirement meaningless.

It would allow the–

William H. Rehnquist:

It was accepted in Lockhart v. McCree, wasn’t it?

Patricia Unsinn:

–The fair cross section requirement?

William H. Rehnquist:

Extended to a petit jury?

Patricia Unsinn:

Well, Judge, as I said, there was language in the opinion suggesting that this was correct.

William H. Rehnquist:

Well, you think that that does not mean that that was accepted, if it was simply language in the opinion, as you refer to it?

Patricia Unsinn:

Well, Judge, it was certainly a conclusion–

William H. Rehnquist:

Yes, I’m the Chief Justice, I’m not a judge.

Patricia Unsinn:

–Pardon me, Justice Rehnquist.

Our position is that the language in the opinion suggesting that the Sixth Amendment doesn’t extend to the petit jury was unnecessary to the result reached in that case, and thereby doesn’t necessarily bind this Court in the decision in this case.

As I was saying, acceptance of that argument would result in the State of Louisiana, for instance, in response to this Court’s decision in Taylor, rather than providing that women would be excluded from the jury pool by use of a statutory exemption, could provide that women are entitled to be included in the jury pool, but that the parties can exercise challenges for cause against women, once they are represented on the jury pool, on the assumption that their family responsibilities would cause them to be inattentive jurors, and therefore unfair.

This, of course, I think would be an absurd result.

It would allow the prosecution to achieve the same result which this Court found to be offensive in Taylor.

The fair cross section requirement has no meaning or purpose unless its importance is recognized to extend beyond selection of the jury pool.

The jury pool itself is not a deliberative body.

It is the petit jury which provides the defendant with the benefit of the common sense judgement of the community.

The defendant has no interest in a jury pool which is representative of the community separate from the impact that that jury pool, the representative character of that jury pool could have on the petit jury before which he is tried.

The representative jury pool is not an end in itself.

It merely provides the means and the possibility that the petit jury will be similarly representative of the community.

The exclusion of cognizable groups from the jury pool violates the Sixth Amendment only because it serves to exclude those same jurors from the jury… from the petit jury.

We are not asking that this Court impose any requirement that the petit jury be of any particular composition.

We are not asking that any quotas be imposed, we’re not asking that any affirmative action be taken to achieve a certain result.

All we’re saying is that the statistical impossibility that each and every petit jury will mirror the community should not excuse a deliberate perversion of the process to achieve an unrepresentative jury.

Sandra Day O’Connor:

Do you think that forcing parties to a lawsuit to accept jurors of a certain racial composition… Italian background, or Hispanic in certain parts of the country, or whatever it might be… on the basis of their race or their religion at the petit jury level might work at cross purposes with the goal of giving parties through the peremptory challenge the right to obtain a degree of impartiality, in effect?

Patricia Unsinn:

Judge… Justice O’Connor, it’s our position that there’s nothing inconsistent with our argument and the achievement of a fair and impartial jury.

Our argument is that disallowing peremptory challenges to allow the petit jury the possibility of being representative in fact furthers the goal of a fair and impartial jury.

The prosecutor would not be disallowed from using his peremptory challenges to exclude members of a group if he has a reasoned basis to question the bias of the jury, of the juror.

The only thing that he’s going to be prevented from doing… and he’s not going to be required to accept jurors merely because they’re members of a certain group.

All that he’s going to be prevented from doing is making assumptions about the partiality of the juror based on their group identity.

I think if you look at the facts of this case, it well demonstrates our argument.

The trial prosecutors never contended–

Antonin Scalia:

Excuse me, you made some assumptions based on group identity.

You struck a woman from the jury on no basis, other than the fact that she belonged to the group of wives of policemen.

Isn’t that the way peremptory challenges are always used, making generalizations about groups which may well be wrong, but you play the odds, and that’s the basis on which you use them.

Isn’t that done all the time?

Patricia Unsinn:

–It may be done all the time.

Our position, though, is whether or not that is done consistently with the Sixth Amendment.

Patricia Unsinn:

I think there’s a difference between excusing the woman juror in this instance because of fear that her close relationship with a police officer is going to cause her to be sympathetic with the victims in this case than making the assumption merely on the basis of one’s group identity that they cannot be fair.

Antonin Scalia:

Well, what about, let’s say, a trial concerning a killing that has become a racial incident in the community in question, and let’s assume that it’s a group of young white men who have caused the death of a black man.

And the defense, or the prosecution, attempts to strike from the jury all whites, if possible, thinking that the racial tensions in the community would make then tend to vote against his client.

Is that no good?

Or it’s only okay because the defense does it?

Patricia Unsinn:

No, Judge, our position… although this case doesn’t present that question… we would be willing to concede that any rule that this Court would adopt should apply equally to the defense as well as the prosecution.

Certainly the defense would not be prevented from excusing white jurors if it had some basis, some individual basis to question the–

Antonin Scalia:

No individual basis, it just knows that this matter in the newspapers and elsewhere has just polarized the races in the community… just to be sure, if I can, I would like to keep as many whites as possible off the jury.

You’re saying I wouldn’t be able to do that?

Patricia Unsinn:

–No.

But that doesn’t… that would not be consistent with our argument, no.

The prosecutors in this case had no basis, and articulated no basis on which they questioned the bias of the black jurors who were excluded.

Sandra Day O’Connor:

Well, Ms. Unsinn, under… if your client were being tried today, by virtue of Batson against Kentucky, this situation that you’re complaining about couldn’t occur, I assume.

Patricia Unsinn:

Under the facts of this particular case, my client would succeed under either an Equal Protection analysis–

Sandra Day O’Connor:

And would succeed under our holding, this Court’s holding in Batson.

The problem is that we did not apply Batson retroactively to cases that were final when it was handed down, and your client’s case was final, was it not?

Patricia Unsinn:

–Yes, that’s correct.

Byron R. White:

Well, Batson… what did it rest on?

Patricia Unsinn:

The Equal Protection Clause.

Byron R. White:

And it’s a racial case?

Patricia Unsinn:

Batson itself involved a black defendant.

Byron R. White:

Yes, yes.

Patricia Unsinn:

I don’t know that there were any–

Byron R. White:

And your argument would go beyond Batson because it would apply to any distinctive group in the community.

Patricia Unsinn:

–Yes.

There would be–

Byron R. White:

And furthermore, there are some people who say that Batson only applies in favor of the member of the group excluded.

Patricia Unsinn:

–This is correct.

Byron R. White:

So your rule, if established, has a considerably broader impact than Batson?

Patricia Unsinn:

In some respects it would.

Patricia Unsinn:

There would be… under the Equal Protection analysis, the defendant has to be a member of the excluded group, in order to have standing to raise a claim of discrimination.

Under the Sixth Amendment, the defendant who has a–

Byron R. White:

Do you think… who do you think could win on an Equal Protection basis, other than racial claimants?

Patricia Unsinn:

–Perhaps a woman–

Byron R. White:

Religious?

Patricia Unsinn:

–A woman defendant who complains about exclusion of women jurors.

Byron R. White:

On an Equal Protection basis?

Patricia Unsinn:

On an Equal Protection basis.

Byron R. White:

Who else?

Patricia Unsinn:

Judge, I don’t know.

Byron R. White:

But Batson would not automatically apply to them, I don’t suppose?

Patricia Unsinn:

Pardon me, Justice?

Byron R. White:

Batson wouldn’t automatically apply to them?

Patricia Unsinn:

To every distinctive group in the community?

Well, the only groups that this Court has to date recognized as being distinctive groups in the community are Blacks, women, and Mexican-Americans.

Sandra Day O’Connor:

Lower courts have gone considerably further in identifying other groups, I take it.

Patricia Unsinn:

I am not aware of any widespread recognition of other groups, and I think that as I–

Sandra Day O’Connor:

I thought I had spotted a number in the cases around the country.

Patricia Unsinn:

–As the opinion in Taylor makes clear–

Sandra Day O’Connor:

Pretty much limitless, actually.

This Court has previously refused to take this step, and extend the fair cross section requirement to the petit jury, has it not?

Patricia Unsinn:

–There is that language in Lockhart v. McCree, although unnecessary to the result reached there, it suggests that the Court would be unwilling to do so.

Anthony M. Kennedy:

But I take it, under your Sixth Amendment theory, you want a jury that’s representative of the community at large, which would include representative numbers of race, gender, I take it wealth?

Patricia Unsinn:

We’re asking for the possibility that the jury be representative, yes.

Anthony M. Kennedy:

At what point do you test whether or not this jury has been selected?

There are 12 jurors in the box, and there is on peremptory challenge, and it happens to be a wealthy woman.

Do we immediately begin looking at the composition of the community, or do we have to wait until the jury has been selected?

Patricia Unsinn:

The test that we’ve proposed would require that the ultimate composition of the jury be unrepresentative of the community, so I don’t know that after–

Anthony M. Kennedy:

So you have to wait until all of the peremptory challenges have been exercised before you can determine whether the Constitution has been in violation?

Patricia Unsinn:

–In many instances, I believe that would be so.

Patricia Unsinn:

There may be some instances–

Anthony M. Kennedy:

And at that point, you’d simply have to select an entirely new jury, I take it?

Patricia Unsinn:

–I think that that’s an open question.

In Batson, this Court stated that it expressed no opinion whether the remedy would be to disallow the use of the peremptory challenges, or to require that a new jury be selected.

I imagine this Court could take the same position with respect to this issue.

Anthony M. Kennedy:

So you’re proposing a standard where the judge could not make rulings on a challenge by challenge basis?

Patricia Unsinn:

No more so than I think he would be able to do in the Batson case.

Byron R. White:

I would think that anybody exercising a peremptory challenge is doing so at his peril unless he gives a reason for it, and would say I don’t know whether this person is a member of a representative or a distinctive group or not, but if he or she is, here’s why I’m throwing her or him off.

And then the judge said,

“Well, that isn’t good enough. “

so he has to leave him on, I guess?

In other words, you need cause for peremptory challenges.

Peremptory challenges for cause would be the only kind that would stand.

Patricia Unsinn:

No, we’re not saying that he needs cause.

We’re saying that if, in fact, the defendant were able to sustain this burden of proving that the prosecutor’s use of the peremptory challenge has resulted in an unrepresentative jury, then the prosecutor would have to justify that by showing existence of a significant state interest which would–

William H. Rehnquist:

At what point during the trial, Ms. Unsinn, does that happen?

You say the defendant has to make some sort of a showing.

At what point in the trial does that kind of thing happen?

This is perhaps the follow up of Justice Kennedy’s question.

Patricia Unsinn:

–I would imagine whenever it became evident that the representative nature of, character of the jury was being impaired.

William H. Rehnquist:

And how would one know when that had happened?

Patricia Unsinn:

Whenever the… I would imagine it would be in the later stages of jury selection, when the parties are–

Byron R. White:

Well, it only takes two or three weeks, or maybe a couple of months to get 12 jurors seated now in the State courts, sometimes.

If you have to start over, it would be very interesting.

Patricia Unsinn:

–I think the example of two or three weeks is probably an extreme situation and is not the case in the majority of situations.

Certainly the Batson remedy would require the same kind, you know, of loss of time.

You know, the question is, which is the more important interest?

Not… and also, the question is, to whom is that loss of time attributable to?

It’s certainly not attributable to the defendant, who’s trying to exercise, to vindicate his right under the Sixth Amendment.

It’s attributable to the prosecutor, who is the person who’s violated the dictates of–

Byron R. White:

What rule of law would a prosecutor invoke if he wanted to challenge the peremptories exercised by a defendant?

Patricia Unsinn:

–Judge, I–

Byron R. White:

Bad cross section?

Patricia Unsinn:

–No, I don’t believe so.

I think that he could look… this Court could look to language that suggests that there must be a balancing of the scales between the defendant and the State.

Byron R. White:

Is that a Federal, Constitutional requirement?

Patricia Unsinn:

No.

Byron R. White:

Well, so you’re saying there would be no Federal Constitutional basis for the prosecutor making, challenging peremptories of a defendant.

Patricia Unsinn:

No, but the Court could allow the state to exercise–

Byron R. White:

Which?

This Court?

Patricia Unsinn:

–This Court, or a State court.

Byron R. White:

Well, we can’t do anything except to a State court, except based on the Constitution.

Patricia Unsinn:

Then State courts could allow prosecutors to question the basis on which the defense counsel are making use of their challenges.

I also think perhaps we’re overstating some of the problems that this rule might entail.

Every possible group that exists in the community is not necessarily going to be a distinctive group in the community.

As I said earlier, there are only three groups that this Court has recognized to be distinctive groups in the community for fair cross section purposes.

I don’t know that the conclusion would necessarily be drawn that because a juror is in a certain income bracket, and another juror is in another income bracket that those jurors are separate and distinct groups in the community such that the prosecutor would be prevented from excluding any one of them.

Byron R. White:

How about age groups?

Patricia Unsinn:

Justice, that would depend upon whether or not the defendant was able to persuade the trial judge that an age group would be a distinctive group in the community.

I don’t know that these questions can be resolved in this case.

They’re not really presented, and they’re probably better decided in cases which really have fully developed the record as to why an age group should be a distinctive–

William H. Rehnquist:

But even if a defendant doesn’t persuade the trial judge, if he persuades the appellate court, he gets the same result, doesn’t he?

Patricia Unsinn:

–Yes.

Thurgood Marshall:

Well, counsel, if we rule on this on the basis of Teague being a Negro, why did they have to get into all these other groups?

Patricia Unsinn:

We don’t.

Thurgood Marshall:

Well, why are you arguing, then?

Patricia Unsinn:

I’m just trying to remind the Court that this… adoption of this rule isn’t going to lead to some horrendous consequence.

I agree that it’s only necessary for this Court to recognize, as it has already done, that Blacks are a representative group in the community, a distinctive group in the community, such that a prosecutor shouldn’t be allowed to interfere with the possibility that those jurors can sit on the jury.

As I was saying, the prosecutors in this case never questioned the partiality of the Black jurors.

Patricia Unsinn:

The explanation that they gave was that they were attempting to achieve a balance of men and women and age groups.

The Court of Appeals’ panel opinion found that that explanation was pretextual.

The Respondents have never questioned the validity of that panel opinion judgement.

Byron R. White:

Have you been involved in the criminal trials that have occurred since Batson?

Patricia Unsinn:

No, Justice White, I have not.

I’ve–

Byron R. White:

I was just wondering how the Batson rule is working out in practice then.

How do they… when are questions raised, and when does the defendant attempt to prove the peremptories have been discriminatorily exercised?

Patricia Unsinn:

–Well, I think this case itself demonstrates when a defendant would attempt to make the complaint.

The complaint here was made–

Byron R. White:

On Federal habeas corpus.

Patricia Unsinn:

–No, I’m speaking about when the complaint was made in the trial court.

I think it was probably a little… halfway through voir dire of the jurors, of the 32 jurors.

So certainly there was substantial proceedings that occurred before a complaint was made.

Based on my experience in pre-Batson cases, it was not unusual for a defense counselor to make the complaint towards the later stages of jury selection, when it became apparent that there was a discriminatory inference to be concluded from the manner in which the prosecutor was exercising its challenges.

Certainly under Batson this Court recognizes that disproportionate exclusion is one of the kinds of evidence that can be looked to to determine whether or not a prosecutor is discriminating, and certainly that is not going to be apparent until the later stages of jury selection.

Unless there are any questions, I would like to reserve my remaining time.

William H. Rehnquist:

Thank you, Ms. Unsinn.

We’ll hear now from you, Mr. Bindi.

David E. Bindi:

Mr. Chief Justice, and may it please the Court, your Honors, the Petitioner invokes the Sixth Amendment as the Constitutional basis for the relief he seeks in this case.

The core guarantee of the Sixth Amendment is the right to an impartial jury, but the petitioner does not contend that he did not get an impartial jury in this case.

What he does contend is that he did not get a jury which was representative of a cross section of the community because the peremptory challenge was used with the result that one distinctive group within the community did not ultimately participate in the jury’s deliberations.

Your Honors, the Petitioner’s argument blurs the distinction between cross sectionalism and impartiality, and it is absolutely crucial to remember that they are not the same thing.

In Lockhart v. McCree, this Court defined impartiality, for purposes of analysis of a jury, in terms of a jury consisting of individuals, each of whom was willing to consider the case fairly and to render a decision based on the evidence, and not on extraneous or irrelevant influences.

The Court also specifically rejected the notion that jury impartiality can be determined with reference to some hypothetical mix of viewpoints from within the community on the petit jury itself.

I don’t mean for any of this to imply that the Respondents are denigrating the cross section principle.

The cross section principle does serve a very valuable purpose in the jury trial system.

But it must be remembered that the cross section principle is a protective measure, and it was designed to enhance the fairness of jury trials.

But the peremptory challenge does that too.

The peremptory challenge serves as a backstop to the process of voir dire examination and challenge for cause, and it also serves to ensure that the jury which is ultimately selected is one that is composed of individuals that both parties are able to agree upon as being the fairest and most able to render a just verdict from the choices available.

David E. Bindi:

Having a cross section of the community represented in a petit jury would be a good thing if we could get it on a regular basis.

But a cross section of biased and partial people does not serve the ends of justice.

The peremptory challenge may result in some juries which are less cross sectional, but its purpose is to ensure that while a jury may be less cross sectional, it is nevertheless more fair and satisfactory to both sides.

The argument has been made that if the cross sectional principle is not extended to the petit jury, that the beneficial effects of the holding in Taylor v. Louisiana–

Byron R. White:

Well, let’s say that in a post-Batson trial a defendant challenges a prosecutor’s use of his peremptories, and the judge asks the prosecutor to justify striking all these women, or all these Blacks, and the prosecutor says well, I just don’t think any Black or any woman sitting in this case can be an impartial juror.

Would that be a decent response?

David E. Bindi:

–Your Honor, in a post-Batson situation, that would not be a satisfactory reply.

Byron R. White:

Why wouldn’t it?

David E. Bindi:

Well, because Batson stands for the proposition that the Equal Protection Clause does not permit the peremptory challenges to be exercised on the basis of a stereotypical notion that jurors of a particular race will, in all cases, be favorable or more partial to, a defendant who is also a member of that same race.

Byron R. White:

But you say that in a fair cross section case, the prosecutor should have complete freedom to exercise those sort of stereotypical views by striking all members of a particular group?

David E. Bindi:

Your Honor, yes, I contend that that’s permissible.

The reason is that the Equal Protection Clause protects entirely different interests than the Sixth Amendment.

As I said before, the core guarantee of the Sixth Amendment is impartiality, and it is not the purpose of the Sixth Amendment to address problems of discrimination.

That is the function of the Equal Protection Clause.

Byron R. White:

So you say Batson’s got nothing to do with the rights of a defendant or just with potential jurors?

David E. Bindi:

No, your Honor, I agree that Batson v. Kentucky has to do not only… and the language in the opinion indicates this… that it has not only to do with the interests of the jurors, but with the interests of the defendants.

So there are Equal Protection concerns in both situations in Batson.

Antonin Scalia:

The interest the defendant can have is the interest in impartiality, I would assume, isn’t it?

David E. Bindi:

If that were in fact the case, your Honor, it would be difficult to explain Batson as an Equal Protection holding, because it was not a case that was brought by individual jurors who had been excused, but rather by a criminal defendant.

Had impartiality been the Court’s core concern in Batson v. Kentucky, then I think it would be difficult to explain it on an Equal Protection ground.

Moreover, I would also point out that in Alan v. Hardy, which held that Batson was not retroactive to cases which were final at the time it was decided… there is language in that opinion that indicates that the decision in Batson had multiple purposes, one of which may have had some impact on the truth finding function of a jury trial, but that that was not the main thrust of the opinion.

Sandra Day O’Connor:

I suppose that our jury size case… was it Ballew v. Georgia, did rely in part on the fair cross section concept in saying you can’t reduce the petit jury size beyond a certain level.

David E. Bindi:

That’s true, your Honor.

The case in Ballew v. Georgia, the Court held that a jury of five would be unconstitutional, and it did rely in part on–

Sandra Day O’Connor:

So apparently there is some concern, then, with fair cross section at the petit jury level?

David E. Bindi:

–Absolutely, your Honor.

I would not contest the fact that cross-sectionalism has some implication for impartiality.

The point to remember, though, is that while there is a connection between the two, it is not a direct connection.

That is to say that cross sectionalism at the petit jury level is not the litmus test of impartiality.

If it were, then what the Petitioner is asking the Court to do is in fact not enough.

David E. Bindi:

If it were the litmus test of impartiality, then we would have to fill juries by quota.

Anthony M. Kennedy:

If you have a case of a white civil rights worker who’s been beaten and he is the victim, and whites are being tried, can blacks be stricken from the jury?

David E. Bindi:

Consistent with the cross section requirement–

Anthony M. Kennedy:

Consistent with Batson and consistent with the Sixth Amendment.

David E. Bindi:

–First of all, it would not be inconsistent under the Sixth Amendment to strike jurors on that basis on that factual situation.

As to whether that would violate the Equal Protection Clause, this Court’s opinion in Batson appears to read that the defendant challenging the use of peremptories by the prosecution must be of the same racial group as the stricken jurors.

I’m aware of some lower court cases that tend to drift away from that sort of standing requirement that Batson appears to impose, but nevertheless, your Honor, the essential point here is that to the extent that that is a problem, it is a problem for Equal Protection purposes, not for fair cross section purposes.

Because to equate jury impartiality, which once again is what the Sixth Amendment is all about, with some sort of mix on the jury or representative viewpoints being included on the petit jury is to take dangerous step toward the process of actually being required, or enforcing a requirement, that juries be filled by quota.

Now, the argument has been made that if the cross section requirement is not extended to the petit jury, then Taylor v. Louisiana will be rendered a nullity.

It’s simply wrong to say that, your Honors.

The fact that Taylor requires that the jury pool be all-inclusive means that if, in a situation where previously an entire group was either drastically underrepresented or completed excluded, a litigant would be able, in a situation such as that, to direct his or her peremptory challenges against the next most disfavored individuals or groups.

But when you have a pool which is all-inclusive, then the peremptory challenge is going to be exercised in a different way by the litigants, and it means that people who previously might have been peremptorily challenged will now in fact sit on juries that they wouldn’t have been on before.

And that has the function of shifting the spectrum of attitude which actually appears on the petit jury.

So it is a mistake to say that Taylor would have no effect whatsoever on the law if–

Byron R. White:

What about… I just wanted to avoid all this wrangling about fair cross section, and Batson.

And I just said, the only challenges that are going to occur in criminal trials are challenges for cause.

That would be Constitutional, wouldn’t it?

David E. Bindi:

–There would be nothing at all un-Constitutional about that.

The Court has frequently stated that peremptory challenges are not Constitutionally required.

Byron R. White:

And so a State could just do away with them?

David E. Bindi:

That’s true, your Honor.

When I say, however, that the peremptory challenge serves a valuable purpose for purposes of selecting a fair and impartial jury, I do not mean to suggest that it should thereby be accorded some Constitutional status.

I’m merely pointing out to the Court, as the Court itself has frequently recognized, that the peremptory challenge does serve a valuable purpose.

Byron R. White:

What is that?

David E. Bindi:

The purpose the peremptory challenge serves, your Honor–

Byron R. White:

Appearance or actuality?

David E. Bindi:

–Pardon me?

Byron R. White:

You say that… you say that it really wouldn’t affect the impartiality of a jury if peremptories were eliminated.

At least there would be no Constitutional basis for questioning that.

David E. Bindi:

That’s correct, your Honor.

David E. Bindi:

But nevertheless, to say that we have a procedural device which is designed to further a goal, but that that device does not have Constitutional status, is not to say that to do away with the device would be un-Constitutional.

Antonin Scalia:

Are you saying that some impartial juries are more impartial than others?

David E. Bindi:

No, your Honor, I don’t–

Antonin Scalia:

That’s what you’re saying.

David E. Bindi:

–I don’t believe that that’s what our position leads to.

Antonin Scalia:

Well, unless that’s true, the peremptory challenge doesn’t have any purpose at all, or any purpose that serves the society.

David E. Bindi:

Well, again, the purpose the peremptory challenge serves is first of all, because the process of voir dire examination and cause challenge has its limitations, the peremptory serves as a backstop.

We all recognize that voir dire examination, as it’s currently conducted, is not a tremendously extensive thing, and we also recognize that jurors, even those jurors who admit to some sort of bias, but swear under oath that they could lay it aside for purposes of deciding this case, are not subject to challenge for cause in most States.

So the peremptory challenge serves–

Antonin Scalia:

Enables you to get a really impartial jury?

Not just impartial, but really impartial, right?

David E. Bindi:

–Well, your Honor, I don’t believe it’s necessary to go that far.

But if–

xxx unless that’s it?

David E. Bindi:

–Well, even assuming that to be the case, your Honor, the fact that a peremptory challenge serves, or works to produce impartial juries or better juries is in fact not inconsistent with the Respondents’ position.

In fact, that is part of what the Respondents’ position is.

We also agree that the cross section requirement serves to enhance impartiality.

So what we’re faced with here is really a situation where we have two procedural devices which are directed at enhancing the same ultimate goal.

The Petitioner’s position is that when the two come into conflict, the one which is recognized as Constitutionally grounded must overcome the one that is not.

However, I think that that argument begs the question, because we still haven’t recognized that the cross section requirement as applied to the petit jury is something that’s Constitutionally necessary–

John Paul Stevens:

May I ask you a question here?

Do you think the rule of the Batson case, which in essence says that the prosecutor may not exclude a racial category of jurors by exercising peremptory challenge… do you think that rule serves the interest in impartiality?

David E. Bindi:

–Well, your Honor, I think that to some extent, it does.

But, I do not believe that that was the main thrust of the Court’s–

John Paul Stevens:

Well, if it does even to a little extent, why doesn’t that… if you just look at the language of the Sixth Amendment… mean that it serves the purpose of the Sixth Amendment, to get an impartial jury?

David E. Bindi:

–To have–

John Paul Stevens:

The rule of Batson furthers the purpose, at least, of the Sixth Amendment, which seeks to have defendants tried by impartial juries.

And if this rule that we announced in Batson serves the same purpose, why isn’t it therefore partially grounded on the Sixth Amendment?

David E. Bindi:

–Well, the Court’s opinion certainly didn’t lean that way, your honor, and in fact, although the Sixth Amendment was the Constitutional framework urged by the defendant in Batson on the Court, the Court nevertheless selected the Equal Protection Clause as providing the more appropriate Constitutional basis for doing the job that the Court felt had to be done.

Part of the rationale of Batson for not relying explicitly on a Sixth Amendment basis is that the concept of applying some sort of theory of proportional representation at the petit jury stage is completely impractical.

David E. Bindi:

In fact, it would be a impossible to accomplish.

John Paul Stevens:

Well, it may be that the cross section requirement would be impractical, and all that.

But I’m not asking about cross sectional.

I’m just asking about the language of the Sixth Amendment, which does require that the jury be impartial.

And it seems to me that the rule of the Batson case serves precisely the same interests.

It might not apply to serve that interest if it was extended to all these other groups that we’ve talked about.

David E. Bindi:

Your Honor, I don’t think that there is a solid, theoretical basis for saying that a rule which encourages one group participation in a jury trial fosters impartiality, but other… a different rule encouraging participation by other, equally distinctive and recognized groups in the community would not.

John Paul Stevens:

Well, except for the fact that there has been a history of concern about the problem of excluding Blacks entirely from trials… we have an all-white jury trying a Black defendant.

We haven’t had the same kind of concern about women complaining about all-male jurors, or… the problem just isn’t replicated in these other areas.

David E. Bindi:

Well, I think that–

John Paul Stevens:

And I think we’ve agreed that the rule of Batson does serve our interest in impartiality.

David E. Bindi:

–Well, I don’t disagree with that your Honor.

I agree that… but again it’s important to note the language in Allen v. Hardy, which indicates that while the rule of Batson has an incidental or residual effect on jury impartiality, it was not that… that idea was not the main thrust of the Batson opinion, and was not the main goal that the Court was seeking to promote.

Batson, I think, also recognizes the fact that applying a concept of proportional representation at the petit jury level is a virtual impossibility.

Batson indicates that it would be impossible to get any trial jury to proportionally reflect all of the various and distinctive groups from within the community, because of the heterogeneous nature of our society.

Now, this leads… if the Petitioner’s position were to be adopted, this would lead to two very immediate and very serious problems.

The first problem would be defining what groups are cognizable.

The Petitioner has indicated this afternoon, and I agree, that this Court’s previous cases have held that groups defined by race, gender and ethnic origin are cognizable groups… but this Court’s opinions have suggested, and many lower courts have found, that groups defined also by economic or political or occupational status are cognizable.

That groups defined by religion or age or geographic location are all cognizable.

The point is that whether or not a group would be cognizable for purposes of a cross section analysis is a question of fact.

To determine that question, trial courts would be required to hold evidentiary hearings at which demographic and sociological studies would have to be produced.

And this of course would impose a tremendous burden on our already overburdened trial courts.

Furthermore, the results of any such hearings would be transient, because the population is transient.

A ruling today that some group is or is not cognizable in a certain time and a certain location in a certain community might not be a valid opinion five years from now, so this would be a recurring, a constantly recurring thing that the trial courts would have to engage in.

Moreover, since it is impossible to get a literal cross section of the community on any one trial jury, a defendant could almost always object to the composition of a jury on the basis of the absence or underrepresentation of one group or another, following jury selection.

John Paul Stevens:

What if you limited his right to object to juries which appeared by reason of the particular exclusion, appeared to be partial?

In other words, if you exclude all the Blacks, and you end up with a white jury, one could argue that is a danger that looks impartial.

But these other examples wouldn’t fit that, would they?

David E. Bindi:

I don’t believe that any example would fit that, your Honor.

Again–

John Paul Stevens:

But you would admit a racial example would fit it, wouldn’t you, that sometimes one is concerned that in the trial of a Black by an all-white jury, there is a concern that that jury may not look impartial… may not appear to the public to be impartial?

David E. Bindi:

–Well, except again, your Honor, that the Court has defined impartiality in terms other than that, and has indicated that impartiality is not to be considered a function of group interaction or… maybe that’s going too far.

It’s not to be considered a function of getting a mix of particular kinds of viewpoints on the jury.

Even in Batson v. Kentucky, the Court acknowledged that trial of a Black defendant by an all-white jury does not necessary result in a violation of the Equal Protection Clause.

Concomitantly, I would say that it certainly doesn’t necessarily violate the right to a trial by an impartial jury.

Thurgood Marshall:

There are also cases where all-Black juries have convicted Black people.

David E. Bindi:

I have no doubt that that’s the case, your Honor, although I’m not–

Antonin Scalia:

I suppose you could explain Batson without reference to in impartiality objection by just saying that a person is entitled to whatever partiality would be created by the inclusion of members of his race on the jury, if the society at large has that proportion?

David E. Bindi:

–That’s entirely–

Antonin Scalia:

That would make it purely an Equal Protection decision, having nothing to do with impartiality.

You’re entitled even to the benefit of somewhat partial juries, who happen to share your race or whatever other characteristic.

David E. Bindi:

–I’m not sure I understand the question, your Honor.

Well.

David E. Bindi:

Both sides agree, your Honors, that if the extension of this principle to the petit jury is necessary, that the defendant should be limited as well as the prosecution.

Now, if that would not outright destroy the value of the peremptory challenge, it would at least destroy the peremptory of, or strip the peremptory of any beneficial effect that it’s intended to have on jury trials.

It would hinder both sides in their ability to remove whatever bias is not excluded during the process of voir dire examination and cause challenge.

It would undermine the confidence of the parties in the fairness of the jury that they have to try their case, and it would do all this without necessarily having any promotional impact or the impartiality of the jury trial system.

Finally, your Honors, I would point out that the impracticality of implementing some form of proportional representation at the petit jury stage is, I believe, excellently illustrated by the fact that there is a tremendous divergence of opinion as to exactly what purpose the cross section principle ought to have at the petit jury stage, and how such a principle ought to be implemented there.

Prior to the grant of certiorari in this case, there was a body of case law that had been developing over the past 10 years in the State courts and in two Federal circuits purporting to apply cross section principles to the petit jury selection stage.

The Petitioner relies on none of that case law, and our brief demonstrated why that–

Byron R. White:

I suppose carried to its logical conclusion, even if there were no peremptories exercised by either side, if the jury that was drawn from a representative panel just happened to exclude a distinctive group in the community, it should be reconstituted.

David E. Bindi:

–If you accept the proposition that if not cross sectionalism, at least representation by some particular group in the context of a particular case is an absolute essential component of impartiality, then yes, your Honor, that’s absolutely correct.

You would have to fill a certain number of seats on that jury by quota.

your Honors, for all these reasons, and for those contained in our brief, we would respectfully request that the Court affirm the Judgement of the Court of Appeals.

Thank You.

William H. Rehnquist:

Thank you, Mr. Bindi.

Ms. Unsinn, you have five minutes remaining.

Patricia Unsinn:

Thank you.

The Respondents contend that we have made no complaint that the jury before which Petitioner was tried was not an impartial jury.

That is precisely what our complaint is.

Patricia Unsinn:

Our complaint is that because the prosecutor took affirmative action to destroy the representative character of that jury, that we did not in fact get the kind of fair and impartial jury that the Sixth Amendment guarantees.

The Respondent–

Byron R. White:

One last question.

If it just so happens that the jury, the petit jury that’s drawn doesn’t include a Negro, although there are Negroes on the [inaudible], the defendant just isn’t getting the kind of fair trial that the Sixth Amendment requires?

Patricia Unsinn:

–No, Justice White, that has never been our position.

Byron R. White:

Well, you just said it was.

Patricia Unsinn:

No, I think there’s a distinction–

Byron R. White:

If you don’t get a fair cross section, you don’t have the kind of a fair and impartial jury.

That’s what I thought you said.

Patricia Unsinn:

–No, our position is that we’re entitled to the possibility of a fair cross section on our jury, and that’s the reason that the Sixth Amendment requires that all distinctive groups in the community be included on the jury pool.

Our position is that there’s a fair cross section violation only when there is some interference with–

Byron R. White:

With the law of chance?

Patricia Unsinn:

–With the law of chance, which is not directly related to the ability of the individual jurors to be fair and impartial.

Antonin Scalia:

The Government doesn’t have an obligation to provide an impartial jury?

All it has an obligation to is not affirmatively to cause a less than impartial jury?

Patricia Unsinn:

That is correct.

That is our–

Antonin Scalia:

Gee, I thought it had an obligation to provide an impartial jury.

Patricia Unsinn:

–It provides the possibility of a cross sectional jury whenever it includes all distinctive groups in the community in the pool.

It’s obviously statistically impossible for every single jury that’s selected in a community to accurately mirror that community in every respect.

Antonin Scalia:

Well, it says here that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury.

Not by what might have been, or what there was a possibility of being an impartial jury.

And as I read that, if a cross section is necessary for impartiality, then it isn’t enough that the State merely refrain from causing impartiality, less than impartiality.

The State has a positive obligation to ensure a cross section.

Doesn’t that follow?

Patricia Unsinn:

No–

Antonin Scalia:

If cross section is necessary for impartial, then the State must produce a cross section.

Period.

Patricia Unsinn:

–No, I don’t agree with that.

All we’re saying is that the jury as an institution serves the purpose that it was intended to serve, so long as the State provides the possibility of a representational jury, and only if there’s some affirmative interference with that possibility is the Sixth Amendment violated.

Patricia Unsinn:

If there’s no affirmative interference, then the defendant’s been given the kind of fair and impartial jury that he’s entitled to.

There’s been no interference, there’s been no violation of the democratic ideal.

Every juror has equal opportunity to participate in the jury.

There’s no… public confidence in the jury is maintained.

Every… there has been no spectacle witnessed by the public of an intentional intrusion into the representative character of the jury, and there has been no action taken to dilute the quality of community judgement that’s represented by the jury.

The defendant’s been given the benefit of the possibility that his jury will be representative.

The Respondents say that if they are not allowed to use their peremptory challenges to produce a fair jury, that they will be denied the use of peremptory challenges, for instance, in those instances where a juror admits to bias but then says

“I can be fair and impartial. “

and thereby withstands a challenge for cause.

Our argument concedes that if the prosecutor has that kind of reasoned basis to question the partiality of the jury, then the Sixth Amendment would not interfere with his ability to peremptorily challenge that jury.

It’s only when he’s making group-based assumptions about jurors’ partiality that Sixth Amendment violation occurs.

William H. Rehnquist:

Thank you, Ms. Unsinn.

The case is submitted.