Peremptories or Peers? Rethinking Sixth Amendment Doctrine, Images, and Procedures

64 Pages Posted: 25 Mar 2015

See all articles by Toni M. Massaro

Toni M. Massaro

University of Arizona College of Law

Date Written: March 23, 2015

Abstract

When a prosecutor uses peremptory challenges to exclude minorities from a jury, the United States Supreme Court has required defendants to show a pattern of such exclusion to prove an equal protection violation. This requirement is difficult to meet and may not adequately protect the defendant's interest in an impartial jury. This article suggests that the discriminatory exercise of peremptory challenges should be analyzed not under the equal protection clause but under the sixth amendment. It explores the history of the jury and the interests protected by the right to a jury-those of the defendant, the government, and the community. Within this framework there are three requirements critical to the sixth amendment guarantee of a jury trial: The jury must be impartial, drawn from a cross-section of the community, and composed of at least some of the defendant's peers. She proposes a procedure to prevent the prosecutor from depriving the defendant of a jury meeting these three requirements-elimination of the prosecutor's right to peremptory challenges.

Keywords: peremptory challenges, prosecutor, pattern of exclusion, sixth amendment

Suggested Citation

Massaro, Toni Marie, Peremptories or Peers? Rethinking Sixth Amendment Doctrine, Images, and Procedures (March 23, 2015). 64 North Carolina Law Review 501 (1986). Available at SSRN: https://ssrn.com/abstract=2584156

Toni Marie Massaro (Contact Author)

University of Arizona College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-626-2687 (Phone)
520-621-9140 (Fax)

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