# Ham v. South Carolina/Concurrence-dissent Marshall

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurrence/Dissents Douglas Marshall
[p530] MR. JUSTICE MARSHALL, concurring in part and dissenting in part.
I, too, concur in that portion of the majority's opinion which holds that the trial judge was constitutionally compelled to inquire into the possibility of racial prejudice on [p531] voir dire. I also agree that, on this record, we cannot say that the judge was required to ask questions about pretrial publicity. I cannot agree, however, that the judge acted properly in totally foreclosing other reasonable and relevant avenues of inquiry as to possible prejudice.
Long before the Sixth Amendment was made applicable to the States through the Due Process Clause of the Fourteenth Amendment, see Duncan v. Louisiana, 391 U.S. 145 (1968), this Court held that the right to an "impartial" jury was basic to our system of justice.
   "In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.... In the language of Lord Coke, a juror must be as 'indifferent as he stands unsworne.' Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U.S. 199. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr's Trial 416 (1807). 'The theory of the law is that a juror who has formed an opinion cannot be impartial.' Reynolds v. United States, 98 U.S. 145, 155." Irvin v. Dowd, 366 U.S. 717, 722 (1961) (footnote omitted).
See also Turner v. Louisiana, 379 U.S. 466, 471-473 (1965); Glasser v. United States, 315 U.S. 60, 84-86 (1942).
We have never suggested that this right to impartiality and fairness protects against only certain classes of prejudice or extends to only certain groups in the population. It makes little difference to a criminal defendant whether [p532] the jury has prejudged him because of the color of his skin or because of the length of his hair. In either event, he has been deprived of the right to present his case to neutral and detached observers capable of rendering a fair and impartial verdict. It is unsurprising, then, that this Court has invalidated decisions reached by juries with a wide variety of different prejudices. See, e.g., Witherspoon v. Illinois, 391 U.S. 510 (1968); Irvin v. Dowd, supra; Morford v. United States, 339 U.S. 258 (1950).
Moreover, the Court has also held that the right to an impartial jury carries with it the concomitant right to take reasonable steps designed to insure that the jury is impartial. A variety of techniques is available to serve this end, see Groppi v. Wisconsin, 400 U.S. 505, 509-511 (1971); Sheppard v. Maxwell, 384 U.S. 333, 357-363 (1966), but perhaps the most important of these is the jury challenge. See, e.g., Johnson v. Louisiana, 406 U.S. 356, 379 (1972) (opinion of POWELL, J.); Swain v. Alabama, 380 U.S. 202, 209-222 (1965). Indeed, the first Mr. Justice Harlan, speaking for a unanimous Court, thought that the right to challenge was "one of the most important of the rights secured to the accused" and that "[a]ny system for the empanelling of a jury that [prevents] or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned." Pointer v. United States, 151 U.S. 396, 408 (1894). See also Lewis v. United States, 146 U.S. 370, 376 (1892).
Of course, the right to challenge has little meaning if it is unaccompanied by the right to ask relevant questions on voir dire upon which the challenge for cause can be predicated. See Swain v. Alabama, supra, at 221. It is for this reason that the Court has held that "[p]reservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury," Dennis v. United States, 339 U.S. 162, [p533] 171-172 (1950), and that the Court has reversed criminal convictions when the right to query on voir dire has been unreasonably infringed. See, e.g., Aldridge v. United States, 283 U.S. 308 (1931). Contrary to the majority's suggestion, these reversals have not been confined to cases where the defendant was prevented from asking about racial prejudice. See, e.g., Morford v. United States, supra. Cf. Dennis v. United States, supra.
I do not mean to suggest that a defendant must be permitted to propound any question or that limitless time must be devoted to preliminary voir dire. Although the defendant's interest in a jury free of prejudice is strong, there are countervailing state interests in the expeditious conduct of criminal trials and the avoidance of jury intimidation. These interests bulk larger as the possibility of uncovering prejudice becomes more attenuated. The trial judge has broad discretion to refuse to ask questions that are irrelevant or vexatious. Thus, where the claimed prejudice is of a novel character, the judge might require a preliminary showing of relevant or of possible prejudice before allowing the questions.
But broad as the judge's discretion is in these matters, I think it clear that it was abused in this case. The defense attorney wished to ask no more than four questions, which would have required a scant 15 additional [p534] minutes of the court's time. The inquiries, directed inter alia to possible prejudice against people with beards, were obviously relevant, since the defendant was in fact bearded. Moreover, the judge afforded petitioner no opportunity to show that there were a significant number of potential jurors who might be prejudiced against people with beards. At minimum, I think such an opportunity should have been provided. I cannot believe that in these circumstances an absolute ban on questions designed to uncover such prejudice represents a proper balance between the competing demands of fairness and expedition.
It may be that permitting slightly more extensive voir dire examination will put an additional burden on the administration of justice. But, as Mr. Chief Justice Hughes argued 40 years ago, "it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute." Aldridge v. United States, 283 U.S., at 315.
I would therefore hold that the defendant in this case, and subject to the limitations set out above, had a constitutionally protected interest in having the judge propound the additional question, in some form, to the jury.

## Notes

* ↑ Indeed, it was not so confined in Aldridge itself, upon which the majority heavily relies. Aldridge pointed out that "[t]he right to examine jurors on the voir dire as to the existence of a disqualifying state of mind, has been upheld with respect to other races than the black race, and in relation to religious and other prejudices of a serious character." 283 U.S. 308, 313 (1931).
* ↑ I also agree with the majority that the judge may properly decline to ask the question in any particular form or ask any particular number of questions on a subject.