The Warren Court (1953–69)

Criminal Procedure and Constitutional Rights

How did the Warren Court deal with alleged claims of discrimination in jury selection?

The Warren Court ruled in Hernandez v. Texas (1954) that a Latino defendant was entitled to a new trial because prosecutors had engaged in a systemic pattern of exclusion against Mexican Americans for jury service. The defendant presented evidence that no Mexican American had served on a jury for the past twenty-five years. The Warren Court reasoned that this type of pattern smacked of discrimination. It explained:

To say that this decision revives the rejected contention that the Fourteenth Amendment requires proportional representation of all the component ethnic groups of the community on every jury ignores the facts. The petitioner did not seek proportional representation, nor did he claim a right to have persons of Mexican descent sit on the particular juries which he faced. His only claim is the right to be indicted and tried by juries from which all members of his class are not systematically excluded—juries selected from among all qualified persons regardless of national origin or descent. To this much, he is entitled by the Constitution.

The Court also addressed the issue of discrimination in jury selection in Swain v. Alabama (1965). The Court reiterated the principle that a defendant could establish an Equal Protection Clause violation by presenting proof that prosecutors struck, or dismissed, jurors on the basis of race in case after case. However, the defendant could not establish a constitutional violation only by showing that prosecutors struck jurors on the basis of race in his particular case. According to the Court, the African American defendant in Swain had failed to establish a clear pattern in “case after case” of discriminatory jury strikes. The Court explained: “Undoubtedly the selection of prospective jurors was somewhat haphazard and little effort was made to ensure that all groups in the community were fully represented. But an imperfect system is not equivalent to purposeful discrimination based on race.”

In Swain, the Court also rejected the idea that a defendant could establish a constitutional violation if a prosecutor exercised his peremptory challenges (challenges to jurors for virtually any reason) on prospective jurors based on race. The Burger Court overruled this aspect of the Swain case in Batson v. Kentucky (1986), holding that prosecutors may not exercise peremptory challenges in a racially discriminatory manner.


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