Georgia v. McCollum: It's Strike Three for Peremptory Challenges, But is it the Bottom of the Ninth?

Christopher J. Peters, University of Baltimore School of Law


A grand jury in Georgia returned a six-count indictment against

three individuals, charging each with aggravated assault and simple battery.

The defendants were white, while the victim was black. Shortly

thereafter, leaders of the African-American community circulated leaflets

urging the town's residents to boycott the defendants' place of business.

Because of the community reaction to the allegedly racially motivated

assaults, the prosecution, in pre-trial proceedings, moved to forbid the

use of race-based peremptory challenges to remove potential jurors.

Under Georgia law, forty-two people comprise the typical petit jury

venire.· Because the racial composition of the community was fortythree

percent African-American, in all probability, the twenty peremptory

challenges allowed to the defendants would have been more than enough

to exclude all potential black jurors.

The trial judge denied the motion, concluding that no such prohibition

restricting the exercise of peremptory challenges by a criminal

defendant existed. The state supreme court affirmed the trial court's

decision, reasoning that jury trials are an essential element in the protection

of human rights; therefore, the court would not restrict the free exercise of

peremptory challenges by the criminal defendant.'

The United States Supreme Court granted certiorari to decide whether

the United States Constitution prohibits the race-based exercise of peremptory

challenges by criminal defendants. Five members joined in the

majority opinion that held: 1) the state had standing to raise objections

on behalf of the excluded jurors; 2) the accused's exercise of these

challenges was considered state action to invoke constitutional scrutiny;

and 3) the Equal Protection Clause of the Fourteenth Amendment

prohibits the use of peremptory challenges to exclude potential jurors

from jury service solely on the basis of race.s The Court reversed the

judgment of Georgia's high court and remanded the case to the original

forum for further proceedings consistent with the opinion.

The United States Supreme Court faced these issues in Georgia v.

McCollum,the latest case in a recent line of Supreme Court decisions

restricting the exercise of racially-based peremptory challenges under the

Equal Protection Clause of the Fourteenth Amendment. However, this

decision extends the scope of equal protection review and affords protection

to potential jury members challenged by criminal defendants.

The irony is that, for the Equal Protection Clause to have any application,

the defendant must be considered a state actor.

McCollum was strike three for racially-based exclusions from jury

service. This note focuses on the impact of McCollum on the future

exercise of peremptory exclusions in today's judicial process. Section I

provides a history of peremptory challenges and of the jury system itself;

this section also incorporates a brief study of prior jurisprudence limiting

race-based exclusions of potential jurors. Section II addresses the test

for Equal Protection Clause litigation and the requirement of state action.

The analysis then focuses on possible alternatives to the current Supreme

Court's application of the Equal Protection Clause. Section III highlights

the possible extension of this analysis to other types of discriminatory

exclusions such as those based on gender. Finally, Part IV questions

whether any substance remains in the peremptory challenge and the

future viability of this practice after the judgment in McCollum.