Absent circumstances comparable in significance to those
existing in
Ham v. South Carolina, 409 U.
S. 524, examination of veniremen during
voir
dire about racial prejudice is held not constitutionally
required. In the instant case, which involved the prosecution of
respondent, a Negro, for violent crimes against a white security
guard, respondent did not show such circumstances. There was thus
no error of constitutional dimensions when the state trial judge
questioned veniremen about general bias or prejudice but declined
to question them specifically about racial prejudice. Pp.
424 U. S.
594-598.
508 F.2d 754, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. WHITE, J.,
filed a statement concurring in the result,
post, p.
424 U. S. 598.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post, p.
424 U. S. 599.
STEVENS, J., took no part in the consideration or decision of the
case.
MR. JUSTICE POWELL delivered the opinion of the Court.
Respondent is a Negro convicted in a state court of violent
crimes against a white security guard. The trial
Page 424 U. S. 590
judge denied respondent's motion that a question specifically
directed to racial prejudice be asked during
voir dire in
addition to customary questions directed to general bias or
prejudice. The narrow issue is whether, under our recent decision
in
Ham v. South Carolina, 409 U.
S. 524 (1973), respondent was constitutionally entitled
to require the asking of a question specifically directed to racial
prejudice. The broader issue presented is whether
Ham
announced a requirement applicable whenever there may be a
confrontation in a criminal trial between persons of different
races or different ethnic origins. We answer both of these
questions in the negative.
I
Respondent, James Ross, Jr., was tried in a Massachusetts court
with two other Negroes for armed robbery, assault and battery by
means of a dangerous weapon, and assault and battery with intent to
murder. The victim of the alleged crimes was a white man employed
by Boston University as a uniformed security guard. The
voir
dire of prospective jurors was to be conducted by the court,
which was required by statute to inquire generally into prejudice.
See n 3,
infra. Each defendant, represented by separate counsel,
made a written motion that the prospective jurors also be
questioned specifically about racial prejudice. [
Footnote 1] Each defendant also moved that
the veniremen be asked about affiliations with law enforcement
agencies.
The trial judge consulted counsel for the defendants about their
motions. After tentatively indicating that
Page 424 U. S. 591
he "[felt] that no purpose would be accomplished by asking such
questions in this instance," the judge invited the views of
counsel:
"THE COURT: . . . I thought from something Mr. Donnelly [counsel
for a codefendant] said, he might have wanted on the record
something which was peculiar to this case, or peculiar to the
circumstances which we are operating under here which perhaps he
didn't want to say in open court."
"Is there anything peculiar about it, Mr. Donnelly?"
"MR. DONNELLY: No, just the fact that the victim is white, and
the defendants are black."
"THE COURT: This, unfortunately, is a problem with us, and all
we can hope and pray for is that the jurors and all of them take
their oaths seriously and understand the spirit of their oath and
understand the spirit of what the Court says to them -- this Judge
anyway -- and I am sure all Judges of this Court -- would take the
time to impress upon them before, during, and after the trial, and
before their verdict, that their oath means just what it says, that
they are to decide the case on the evidence, with no extraneous
considerations."
"I believe that that is the best that can be done with respect
to the problems which -- as I said, I regard as extremely
important. . . ."
App. 29-30. Further discussion persuaded the judge that a
question about law enforcement affiliations should be asked because
of the victim's status as a security guard. [
Footnote 2] But
Page 424 U. S. 592
he adhered to his decision not to pose a question directed
specifically to racial prejudice.
The
voir dire of five panels of prospective jurors then
commenced. The trial judge briefly familiarized each panel with the
facts of the case, omitting any reference to racial matters. He
then explained to the panel that the clerk would ask a general
question about impartiality and a question about affiliations with
law enforcement agencies. [
Footnote
3] Consistently with his announced intention to "impress upon
[the jurors] . . . that they are to decide the case on the
evidence, with no extraneous considerations," the judge preceded
the questioning of the panel with an extended discussion of the
obligations of jurors. [
Footnote
4]
Page 424 U. S. 593
After these remarks, the clerk posed the questions indicated to
the panel. Panelists answering a question affirmatively were
questioned individually a the bench by the judge, in the presence
of counsel. This procedure led to the excusing of 18 veniremen for
cause on grounds of prejudice, including one panelist who admitted
a racial bias. [
Footnote 5]
The jury eventually impaneled convicted each defendant of all
counts. On direct appeal, Ross contended that his federal
constitutional rights were violated by the denial of his request
that prospective jurors be questioned specifically about racial
prejudice. This contention was rejected by the Supreme Judicial
Court of Massachusetts,
Commonwealth v. Ross, 361 Mass.
665,
282
N.E.2d 70 (1972), and Ross sought a writ of certiorari. While
his petition was pending, we held in
Ham that a trial
court's failure on request to question veniremen specifically about
racial prejudice had denied Ham due process
Page 424 U. S. 594
of law. We granted Ross' petition for certiorari and remanded
for reconsideration in light of
Ham, 410 U.S. 901 (1973);
the Supreme Judicial Court again affirmed Ross' conviction.
Commonwealth v. Ross, 363 Mass. 665,
296
N.E.2d 810 (1973). The court reasoned that
Ham turned
on the need for questions about racial prejudice presented by its
facts, and did not announce
"a new broad constitutional principle requiring that [such]
questions . . . be put to prospective jurors in all State criminal
trials when the defendant is black. . . ."
Id. at 671, 296 N.E.2d at 815. Ross again sought
certiorari, but the writ was denied.
414 U.
S. 1080 (1973).
In the present case, Ross renewed his contention on collateral
attack in federal habeas corpus. Relying on
Ham, the
District Court granted a writ of habeas corpus, and the Court of
Appeals for the First Circuit affirmed. 508 F.2d 754 (1974). The
Court of Appeals assumed that
Ham turned on its facts. But
it held that the facts of Ross' case, involving "violence against a
white" with "a status close to that of a police officer," presented
a need for specific questioning about racial prejudice similar to
that, in
Ham. Id. at 756. We think the Court of
Appeals read
Ham too broadly.
II
The Constitution does not always entitle a defendant to have
questions posed during
voir dire specifically directed to
matters that conceivably might prejudice veniremen against him.
Ham, supra at
409 U. S.
527-528.
Voir dire "is conducted under the
supervision of the court, and a great deal must, of necessity, be
left to its sound discretion."
Connors v. United States,
158 U. S. 408,
158 U. S. 413
(1895);
see Ham, supra at
409 U. S.
527-528;
Aldridge v. United States,
283 U. S. 308,
283 U. S. 310
(1931). This is so because
Page 424 U. S. 595
the "determination of impartiality, in which demeanor plays such
an important part, is particularly within the province of the trial
judge."
Rideau v. Louisiana, 373 U.
S. 723,
373 U. S. 733
(163) (Clark, J., dissenting). Thus, the State's obligation to the
defendant to impanel an impartial jury [
Footnote 6] generally can be satisfied by less than an
inquiry into a specific prejudice feared by the defendant.
Ham,
supra at
409 U. S.
527-528.
In
Ham, however, we recognized that some cases may
present circumstances in which an impermissible threat to the fair
trial guaranteed by due process is posed by a trial court's refusal
to question prospective jurors specifically about racial prejudice
during
voir dire. Ham involved a Negro tried in
South Carolina courts for possession of marihuana. He was well
known in the locale of his trial as a civil rights activist, and
his defense was that law enforcement officials had framed him on
the narcotics charge to "get him" for those activities. Despite the
circumstances, the trial judge denied Ham's request that the
court-conducted
voir dire include questions specifically
directed to racial prejudice. [
Footnote 7] We reversed the judgment of conviction
because
"the essential fairness required by the Due Process Clause of
the Fourteenth Amendment requires that, under the facts shown by
this record, the [defendant] be permitted to have the
Page 424 U. S. 596
jurors interrogated [during
voir dire] on the issue of
racial bias."
409 U.S. at
409 U. S.
527.
By its terms,
Ham did not announce a requirement of
universal applicability. [
Footnote
8] Rather, it reflected an assessment of whether, under all of
the circumstances presented, there was a constitutionally
significant likelihood that, absent questioning about racial
prejudice, the jurors would not be as "indifferent as [they stand]
unsworne." Coke on Littleton 155b (19th ed. 1832). In this
approach,
Ham was consistent with other determinations by
this Court that a State had denied a defendant due process by
failing to impanel an impartial jury.
See Irvin v. Dowd,
366 U. S. 717
(1961);
Rideau v. Louisiana, supra; Turner v. Louisiana,
379 U. S. 466
(1965);
cf. Avery v. Georgia, 345 U.
S. 559 (1953).
The circumstances in
Ham strongly suggested the need
for
voir dire to include specific questioning about racial
prejudice. Ham's defense was that he had been framed because of his
civil rights activities. His prominence
Page 424 U. S. 597
in the community as a civil rights activist, if not already
known to veniremen, inevitably would have been revealed to the
members of the jury in the course of his presentation of that
defense. Racial issues therefore were inextricably bound up with
the conduct of the trial. Further, Ham's reputation as a civil
rights activist and the defense he interposed were likely to
intensify any prejudice that individual members of the jury might
harbor. In such circumstances, we deemed a
voir dire that
included questioning specifically directed to racial prejudice,
when sought by Ham, necessary to meet the constitutional
requirement that an impartial jury be impaneled.
We do not agree with the Court of Appeals that the need to
question veniremen specifically about racial prejudice also rose to
constitutional dimensions in this case. [
Footnote 9] The mere fact that the victim of the crimes
alleged was a white man and the defendants were Negroes was less
likely to distort the trial than were the special factors involved
in
Ham. The victim's status as a security officer, also
relied upon by the Court of Appeals, was cited by respective
defense counsel primarily as a separate source of prejudice, not as
an aggravating racial factor,
Page 424 U. S. 598
see n 2,
supra, and the trial judge dealt with it by his question
about law enforcement affiliations. [
Footnote 10] The circumstances thus did not suggest a
significant likelihood that racial prejudice might infect Ross'
trial. This was made clear to the trial judge when Ross was unable
to support his motion concerning
voir dire by pointing to
racial factors such as existed in
Ham or others of
comparable significance. In these circumstances, the trial judge
acted within the Constitution in determining that the demands of
due process could be satisfied by his more generalized but thorough
inquiry into the impartiality of the veniremen. Accordingly, the
judgment is
Reversed.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
MR. JUSTICE WHITE concurs in the result on the ground that
Ham v. South Carolina, 409 U. S. 524
(1973), announced a new constitutional rule applicable to federal
and state criminal trials, and that this rule should not be applied
retroactively to cases such as this involving trials which occurred
prior to the decision in
Ham.
Page 424 U. S. 599
[
Footnote 1]
The question proposed by Ross, who did not adopt as his own
various other questions proposed by his codefendants, was: "5. Are
there any of you who believe that a white person is more likely to
be telling the truth than a black person?" App. 23.
[
Footnote 2]
"MR. DONNELLY: There is only one thing. The only reference I
would make to the facts in this case -- the victim[']s being white,
and that he was a security guard in uniform and acting as a
policeman."
"MR. NEWMAN [counsel for Ross]: I think that factor might
suggest the question -- this was my series of questions -- asking
the jurors whether any of their relatives are policemen."
"
* * * *"
"THE COURT: I am going to adopt Mr. Newman's suggestion that we
have a double problem here, not only the problem of skin color, but
we also have the problem of someone who is a quasi policeman, so I
am going to ask . . . [a question] in the area of relations to
police. . . ."
Id. at 30-31.
[
Footnote 3]
The questions were, in substance, the following:
"If any of you are related to the defendants or to the victim,
or if any of you have any interest in this case, or have formed an
opinion, or is sensible of any bias or prejudice, you should make
it known to the court at this time."
"
* * * *"
". . . Are you presently, or have you in the past worked for a
police department or a district attorney's office, or do you have
any relative who is or was engaged in such work."
Id. at 71.
The first question was required by Mass.Gen.Laws Ann., c. 234, ยง
28 (1959).
[
Footnote 4]
He addressed one panel in part as follows:
"[THE COURT:] . . . [U]nder your oath, you have an absolute duty
to render a fair and impartial verdicts [
sic] based upon
the evidence that you hear in the courtroom, and no extraneous
factors."
"The Clerk, in asking you the first question, is giving you an
opportunity to inform the Court if you believe that you cannot
render a fair and impartial verdict on the evidence in this case,
giving you an opportunity to inform the Court if you have serious
doubt as to whether you can render a fair and impartial verdict on
the evidence in the case."
"Under this question, and under your oath, when this question is
asked, if you believe that you cannot render a fair and impartial
verdict on the evidence in this case, or if you have a doubt as to
whether you can so render a fair and impartial verdict on the
evidence in the case, you have a duty to inform the Court when that
question is asked by standing or raising your hand."
App. 72.
[
Footnote 5]
At least this venireman knew that the defendants were Negroes.
See id. at 42. He was a member of the first panel
questioned, and the record shows that, immediately before the
questioning of that panel, the defendants were directed to stand
and were "set at the bar to be tried."
Id. at 39. It
appears that this formality was pursued only before the questioning
of the first panel.
Cf. id. at 49-50, 73-74, 84, 97.
Nothing in the record lodged in this Court indicates whether the
veniremen from other panels knew that the defendants were Negroes,
although presumably the defendants remained in the courtroom
throughout the questioning.
[
Footnote 6]
A criminal defendant in a state court is guaranteed an
"impartial jury" by the Sixth Amendment as applicable to the States
through the Fourteenth Amendment.
Duncan v. Louisiana,
391 U. S. 145
(1968). Principles of due process also guarantee a defendant an
impartial jury.
See, e.g., Irvin v. Dowd, 366 U.
S. 717,
366 U. S. 722
(1961).
[
Footnote 7]
The questions proposed by Ham were:
"1. Would you fairly try this case on the basis of the evidence
and disregarding the defendant's race?"
"2. You have no prejudice against negroes? Against black people?
You would not be influenced by the use of the term 'black'?"
409 U.S. at
409 U. S. 525
n. 2.
[
Footnote 8]
In defending the judgment of the Court of Appeals, Ross argues
for a sweeping
per se rule. At least where crimes of
violence are involved, he would require defense motions for
voir dire on racial prejudice to be granted in any case
where the defendant was of a different race from the victim. He
would require a similar result whenever any defendant sought
voir dire on racial prejudice because of the race of his
own or adverse witnesses. Tr. of Oral Arg. 29-34. We note that such
a
per se rule could not, in principle, be limited to cases
involving possible racial prejudice. It would apply with equal
force whenever
voir dire questioning about ethnic origins
was sought, and its logic could encompass questions concerning
other factors, such as religious affiliation or national origin.
See Aldridge v. United States, 283 U.
S. 308,
283 U. S. 313
(1931). In our heterogeneous society, policy as well as
constitutional considerations militate against the divisive
assumption -- as a
per se rule -- that justice in a court
of law may turn upon the pigmentation of skin, the accident of
birth, or the choice of religion.
See Connors v. United
States, 158 U. S. 408,
158 U. S. 415
(1895).
[
Footnote 9]
Although we hold that
voir dire questioning directed to
racial prejudice was not constitutionally required, the wiser
course generally is to propound appropriate questions designed to
identify racial prejudice if requested by the defendant. Under our
supervisory power, we would have required as much of a federal
court faced with the circumstances here.
See Aldridge v. United
States, supra; cf. United States v. Walker, 491 F.2d 236
(CA9),
cert. denied, 416 U.S. 990 (1974); United States v.
Booker, 480 F.2d 1310 (CA7 1973). The States also are free to allow
or require questions not demanded by the Constitution. In fact, the
Supreme Judicial Court of Massachusetts has suggested guidelines to
Massachusetts trial courts for questioning about racial prejudice
on
voir dire. Commonwealth v. Lumley, ___ Mass.
___,
327
N.E.2d 683 (1975);
Commonwealth v. Ross, 363 Mass.
665, 673,
296
N.E.2d 810, 816 (1973).
[
Footnote 10]
The facts here resemble in many respects those in
Aldridge,
supra, where the Court overturned the conviction of a Negro
for the murder of a white policeman because the federal trial judge
had refused the defendant's request that the venire be questioned
about racial prejudice.
Ham relied in part on
Aldridge in finding that the inquiry into racial prejudice
on
voir dire sought in
Ham had "constitutional
stature." 409 U.S. at
409 U. S. 528.
While
Aldridge was one factor relevant to the
constitutional decision in
Ham, we did not rely directly
on its precedential force. Rather, we noted that
Aldridge
"was not expressly grounded upon any constitutional requirement."
409 U.S. at
409 U. S. 526.
In light of our holding today, the actual result in
Aldridge should be recognized as an exercise of our
supervisory power over federal courts.
Cf. n 9,
supra.
MR JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.
In 1973, the Court refused to review the affirmance on direct
appeal of Mr. Ross' conviction.
414 U. S. 1080.
In dissenting from that refusal, I observed that
"[t]o deny this petition for certiorari is to see our decision
in
Ham
v. South Carolina, [
409 U.S.
524 (1973),] stillborn, and to write an epitaph for those
'essential demands of fairness' recognized by this Court 40 years
ago in
Aldridge [v. United States, 283 U. S.
308 (1931)]."
Id. at 1085. Today, in reversing the Court of Appeals'
affirmance of the District Court's grant of a writ of habeas
corpus, the Court emphatically confirms that the promises inherent
in
Ham and
Aldridge will not be fulfilled. For
the reasons expressed in my dissent from the earlier denial of
certiorari, I cannot join in this confirmation. Accordingly, I
respectfully dissent.