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13 Crim. Just. J. 335 (1991-1992)
Holland v. Illinois and Powers v. Ohio: The Discriminatory Effect of the Peremptory Challenge Evaluated from the Sixth and Fourteenth Amendments

handle is hein.journals/tjeflr13 and id is 341 raw text is: HOLLAND v. ILLINOIS AND POWERS v. OHIO: THE DISCRIMINATORY EFFECT OF THE PEREMPTORY CHALLENGE EVALUATED FROM THE SIXTH AND FOURTEENTH AMENDMENTS INTRODUCTION The peremptory challenge has long been the revered tool of the courtroom advocate. The United States Supreme Court has man- aged to preserve this inalienable right of every red-blooded American litigator through numerous attacks in past decades. But a tour through the decisions of the past decades has provided a con- fusing path of justification which belies the inherent evil to which the peremptory challenge can and has been put. Just as every procedure in our system of jurisprudence has a quantum of merit by which it was developed and has flourished, numerous procedures have required major modification to correct abuses. The most comprehensive and visible modification of civil procedure in contemporary history has been the promulgation of the Federal Rules of Civil Procedure under the Rules Enabling Act.' A large portion of the rules developed were to overcome abuses in the discovery process and to eliminate the popular growth of trial by ambush. The peremptory challenge, like discovery procedure, has fallen victim to abuse. This paper endeavors to explore the Court's recog- nition of its vitiation and the path of remedial action. The analysis follows the impact of the Fourteenth Amendment, the Sixth Amendment, and a look at the validity of some of the precepts upon which the Court has based its support of the peremptory challenge. THE JURISPRUDENCE OF RACIAL DISCRIMINATION REGARDING COMPOSITION OF THE JURY THE FOUR TEENTH AMENDMENT APPROACH The first approach to the consideration of the composition of the jury was considered under the Equal Protection Clause of the Fourteenth Amendment.2 The question of the nexus between racial 1. 28 USC § 2071 & 2072 (1991). 2. U.S. Const. amend XIV, Sec. 1.

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