In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that prosecutors could not exercise peremptory challenges based on race. In Georgia v. McCollum, 505 U.S. 42 (1992), the Court extended the same rule to defendants. (Sex discrimination is likewise prohibited, under J.E.B. v. Alabama ex rel T.B., 511 U.S. 127 (1994).) Yet while defendants regularly make Batson challenges to prosecutors' strikes, it appears that prosecutors rarely return the favor. In fact, there is only one reported appellate case in which a North Carolina prosecutor successfully challenged a defendant's use of peremptory challenges: State v. Cofield, 129 N.C. App. 268 (1998). Perhaps prosecutors have been reluctant to invoke McCollum because of uncertainty about the consequences of success. Clearly, if a McCollum challenge succeeds, the defendant is convicted, and the trial judge's ruling is upheld on appeal, the conviction stands. But what if a McCollum challenge succeeds, the defendant is convicted, and the appellate courts conclude that the trial judge erred in granting the challenge? Prosecutors -- and judges -- may have assumed that the appellate courts would find so-called structural error, mandating automatic reversal. Although no North Carolina appellate case so held, the United States Supreme Court stated in dicta in Swain v. Alabama, 380 U. S. 202, 219 (1965), that “[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice.” Fear of structural error may have deterred prosecutors from contesting defendants' questionable use of peremptory strikes. McCollum challenges may [...]
Faculty Coordinators
