ROSALES-LOPEZ v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
Argued January 12, 1981.
Decided April 21, 1981.
Petitioner, who is of Mexican descent, was tried in Federal District Court for his participation in a plan by which Mexican aliens were smuggled into the country. Another participant in the plan, one Bowling, was apparently a Caucasian with whose daughter petitioner had been living. Prior to his trial, petitioner requested that the judge, in his voir dire examination of prospective jurors, ask a question as to possible prejudice toward Mexicans. The judge refused to ask such question, but did ask questions concerning possible prejudice against aliens. Petitioner was subsequently convicted, and the Court of Appeals affirmed, rejecting petitioner's challenge of the trial judge's refusal to question the jurors about possible racial or ethnic bias.
The judgment is affirmed. Pp. 188-194; 194-195.
617 F.2d 1349, affirmed.
John J. Cleary, by appointment of the Court, 449 U.S. 947 , argued the cause and filed a brief for petitioner.
George W. Jones argued the cause pro hac vice for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, and John De Pue.
JUSTICE WHITE announced the judgment of the Court and delivered an opinion, in which JUSTICE STEWART, JUSTICE BLACKMUN, and JUSTICE POWELL joined.
The question here is whether it was reversible error for a
federal trial court in a criminal case to reject the defendant's request that the court's voir dire of prospective jurors inquire further into the possibility of racial or ethnic prejudice against the defendant. [451 U.S. 182, 184]
Petitioner is of Mexican descent. In February 1979, he was tried before a jury in the United States District Court for the Southern District of California for his alleged participation in a plan by which three Mexican aliens were illegally brought into the country. 1
The Government's evidence at trial described the following events. On the night of December 10, 1978, three aliens were led across the Mexican-American border and taken to a car, previously left for them on the American side. They drove to Imperial Beach, Cal., a town about eight miles inside the border. Early in the morning of December 11, they reached the home of Virginia Hendricks Bowling, where they were admitted into the garage of the house by petitioner. Bowling was an American citizen, apparently Caucasian, living in Imperial Beach with her 19-year-old daughter. Petitioner had been living with Bowling's daughter in her mother's house since July 1978.
Later in the morning, petitioner hid the three aliens and their guide in the trunk of a green Oldsmobile. Bowling drove the Oldsmobile north, through the San Clemente checkpoint, while petitioner followed in a grey Ford. After passing through the checkpoint, Bowling and petitioner exchanged cars. Petitioner proceeded to Los Angeles in the Oldsmobile and Bowling returned to Imperial Beach in the Ford. In Los Angeles, petitioner went to an apartment, which agents of the Immigration and Naturalization Service had had under surveillance for several weeks because they suspected that it was a drop site for illegal aliens. Upon [451 U.S. 182, 185] arrival, the aliens were let out of the trunk and told to go into the apartment by petitioner. Shortly thereafter, petitioner was arrested when he left the apartment with one of the aliens.
At trial, the INS agents, Bowling, the three illegal aliens, and David Falcon-Zavala, another named principal in the smuggling arrangement who was arrested with petitioner, testified for the Government. Petitioner did not testify; his defense was principally to challenge the credibility of the Government witnesses. The jury convicted him of all the charges and the Court of Appeals for the Ninth Circuit affirmed. 617 F.2d 1349 (1980).
Prior to trial, petitioner's counsel formally requested that he be allowed personally to voir dire the prospective members of the jury. At the same time, he filed a list of 26 questions that he requested the trial judge to ask, if the court denied his first motion. Among the questions submitted was one directed toward possible prejudice toward Mexicans:
Petitioner appealed, unsuccessfully challenging the refusal of the trial judge to question the jurors about possible racial or ethnic bias. 5 The Court of Appeals for the Ninth Circuit noted that there is
The Courts of Appeals have adopted conflicting rules as to when the failure to ask such questions will constitute reversible error. Some Circuits have adopted a per se rule, requiring reversal whenever the trial judge fails to ask a question on racial or ethnic prejudice requested by a defendant who is a member of a minority group. See United States v. Bowles, 574 F.2d 970 (CA8 1978); United States v. Robinson, 485 F.2d 1157 (CA3 1973); United States v. Carter, 440 F.2d 1132 (CA6 1971); United States v. Gore, 435 F.2d 1110 (CA4 1970); Frasier v. United States, 267 F.2d 62 (CA1 1959). Other Circuits, including the Ninth, have rejected such a per se rule, holding that a trial judge is required to pose such a question only where there is some indication [451 U.S. 182, 188] that the particular case is likely to have racial overtones or involve racial prejudice. See United States v. Polk, 550 F.2d 1265 (CA10 1977); United States v. Perez-Martinez, 525 F.2d 365 (CA9 1975). In light of this diversity of views, we granted certiorari. 449 U.S. 819 .
Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled. See Connors v. United States, 158 U.S. 408, 413 (1895). Similarly, lack of adequate voir dire impairs the defendant's right to exercise peremptory challenges where provided by statute or rule, as it is in the federal courts. 6
Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge's function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions. See Ristaino v. Ross, 424 U.S. 589, 595 (1976), quoting Rideau v. Louisiana, 373 U.S. 723, 733 (1963) (Clark, J., dissenting). In neither instance can an appellate court easily second-guess the conclusions of the decisionmaker who heard and observed the witnesses. [451 U.S. 182, 189]
Because the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire. In Aldridge v. United States, 283 U.S. 308 (1931), the Court recognized the broad role of the trial court: "[T]he questions to the prospective jurors were put by the court, and the court had a broad discretion as to the questions to be asked." Id., at 310. See also Ham v. South Carolina, 409 U.S. 524, 528 (1973) (recognizing "the traditionally broad discretion accorded to the trial judge in conducting voir dire . . ."). Furthermore, Rule 24 (a), Federal Rules of Criminal Procedure, provides that the trial court may decide to conduct the voir dire itself or may allow the parties to conduct it. If the court conducts it, the parties may "supplement the examination by such further inquiry as [the court] deems proper"; alternatively, the court may limit participation to the submission of additional questions, which the court must ask only "as it deems proper."
There are, however, constitutional requirements with respect to questioning prospective jurors about racial or ethnic bias. The "special circumstances" under which the Constitution requires a question on racial prejudice were described in Ristaino v. Ross, supra, by contrasting the facts of that case with those in Ham v. South Carolina, supra, in which we held it reversible error for a state court to fail to ask such a question.
Ham involved a black defendant charged with a drug offense. His defense was that the law enforcement officers had "framed" him in retaliation for his active, and widely known, participation in civil rights activities. The critical factor present in Ham, but not present in Ristaino, was that racial issues were "inextricably bound up with the conduct of the trial," and the consequent need, under all the circumstances, specifically to inquire into possible racial prejudice in order to assure an impartial jury. Ristaino, supra, at 596, [451 U.S. 182, 190] 597. Although Ristaino involved an alleged criminal confrontation between a black assailant and a white victim, that fact pattern alone did not create a need of "constitutional dimensions" to question the jury concerning racial prejudice. 424 U.S., at 596 , 597. There is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups. As Ristaino demonstrates, there is no per se constitutional rule in such circumstances requiring inquiry as to racial prejudice. Id., at 596, n. 8. Only when there are more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case does the trial court's denial of a defendant's request to examine the jurors' ability to deal impartially with this subject amount to an unconstitutional abuse of discretion.
Absent such circumstances, the Constitution leaves it to the trial court, and the judicial system within which that court operates, to determine the need for such questions. In the federal court system, we have indicated that under our supervisory authority over the federal courts, we would require that questions directed to the discovery of racial prejudice be asked in certain circumstances in which such an inquiry is not constitutionally mandated. Ristaino, supra, at 597, n. 9.
Determination of an appropriate nonconstitutional standard for the federal courts does not depend upon a comparison of the concrete costs and benefits that its application is likely to entail. These are likely to be slight: some delay in the trial versus the occasional discovery of an unqualified juror who would not otherwise be discovered. There is, however, a more significant conflict at issue here - one involving the appearance of justice in the federal courts. On the one hand, requiring an inquiry in every case is likely to create the impression "that justice in a court of law may turn upon the pigmentation of skin [or] the accident of birth." Ristaino, supra, at 596, n. 8. Trial judges are understandably hesitant to introduce such a suggestion into their courtrooms. [451 U.S. 182, 191] See Aldridge, supra, at 310; Ristaino, supra, at 591. Balanced against this, however, is the criminal defendant's perception that avoiding the inquiry does not eliminate the problem, and that his trial is not the place in which to elevate appearance over reality.
We first confronted this conflict in Aldridge, supra, and what we said there remains true today:
In Ristaino, the Court indicated that under the circumstances of that case, a federal trial court would have been required to "propound appropriate questions designed to identify racial prejudice if requested by the defendant." 424 U.S., at 597 , n. 9. In Ristaino, the Court also made clear that the result reached in Aldridge, was based on this Court's [451 U.S. 182, 192] supervisory power over the federal courts. 424 U.S., at 598 , n. 10. In Aldridge, which Ristaino embraced, the Court held that it was reversible error for a federal trial court to fail to inquire into racial prejudice in a case involving a black defendant accused of murdering a white policeman. The circumstances of both cases indicated that there was a "reasonable possibility" that racial prejudice would influence the jury.
Aldridge and Ristaino together, fairly imply that federal trial courts must make such an inquiry when requested by a defendant accused of a violent crime and where the defendant and the victim are members of different racial or ethnic groups. This supervisory rule is based upon and consistent with the "reasonable possibility standard" articulated above. It remains an unfortunate fact in our society that violent crimes perpetrated against members of other racial or ethnic groups often raise such a possibility. There may be other circumstances that suggest the need for such an inquiry, but the decision as to whether the total circumstances suggest a reasonable possibility that racial or ethnic prejudice will affect the jury remains primarily with the trial court, subject to case-by-case review by the appellate courts.
Evaluated against these standards, there was no reversible error in the voir dire afforded petitioner. At no point has petitioner argued that the matters at issue in his trial involved allegations of racial or ethnic prejudice: neither the Government's case nor his defense involved any such allegations. There were, then, no "special circumstances" of constitutional dimension in this case. Neither did the circumstances of the case reveal a violent criminal act with a victim of a different racial or ethnic group. In fact, petitioner was accused of a victimless crime: aiding members of his own ethnic group to gain illegal entry into the United States. Petitioner, therefore, falls within that category of cases in which the trial court must determine if the external circumstances [451 U.S. 182, 193] of the case indicate a reasonable possibility that racial or ethnic prejudice will influence the jury's evaluation of the evidence. For two reasons, we do not believe that such a reasonable possibility has been demonstrated in this case.
First, the trial court reasonably determined that a juror's prejudice toward aliens might affect his or her ability to serve impartially in this case. The court, therefore, questioned the prospective jurors as to their attitudes toward aliens. There can be no doubt that the jurors would have understood a question about aliens to at least include Mexican aliens. The trial court excused two jurors for cause, based on their responses to this question. Removing these jurors eliminated, we believe, any reasonable possibility that the remaining jurors would be influenced by an undisclosed racial prejudice toward Mexicans that would have been disclosed by further questioning. 8
Second, petitioner contends that "any latent racial antagonism" of the jurors toward Mexicans was likely to be exacerbated by Bowling's testimony concerning the relationship between petitioner and her daughter. Petitioner, however, failed to make this argument to the trial court in support of his requested question. Even if he had, however, it would not create a reasonable possibility that the jury's determination would be influenced by racial prejudice. Bowling's testimony as to petitioner's role in the particular smuggling operation involved in this trial was substantially corroborated by the other witnesses presented by the Government, including Falcon-Zavala and the three illegal aliens. Under the circumstances of this case, the racial or ethnic differences between [451 U.S. 182, 194] the defendant and a key Government witness did not create a situation meeting the standard set out above. The judge was not, therefore, required to inquire further than he did.
Under these circumstances, we cannot hold that there was a reasonable possibility that racial or ethnic prejudice would affect the jury. Therefore, the trial court did not abuse its discretion in denying petitioner's request, and the judgment of the Court of Appeals is affirmed.
[ Footnote 2 ] The trial court asked the panel as a group questions concerning the following: knowledge of the participants in the trial; outside knowledge of the case; physical impairments that would interfere with their responsibilities as jurors; legal training; possible disagreement with the principle that a criminal defendant is presumed to be innocent. Each juror was asked to state some basic facts about himself or herself, including name, occupation, and spouse's occupation.
[ Footnote 3 ] Two jurors were excused because of their responses to this question.
[ Footnote 4 ] The other five questions were:
1. "Have you ever employed or have friends that have employed illegal aliens?"
2. "Have you ever worked for the federal Government? If so, as what? How long?"
3. "Have you ever been the victim of a crime?"
4. "Have you ever sat as a juror in a civil or criminal case? What was the nature of the case and the verdict?"
5. "Are you able to speak Spanish? If so, how well? Would you be willing to accept the interpreter's translation?"
[ Footnote 5 ] On appeal, petitioner also challenged the failure of the trial court to provide him a free copy of the transcript of a suppression hearing, the sentencing procedure applied to him, the denial of an evidentiary hearing on possible prosecutorial vindictiveness, the trial court's refusal to give an instruction on a lesser-included offense, the propriety of imposing consecutive sentences, and the constitutionality of 8 U.S.C. 1324. The Court of Appeals rejected all of these contentions.
[ Footnote 6 ] In Swain v. Alabama, 380 U.S. 202 (1965), we noted the connection between voir dire and the exercise of peremptory challenges: "The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories . . . ." Id., at 218-219. We also noted there that although there is no federal constitutional requirement that peremptory challenges be permitted, the challenge is widely used in federal and state courts pursuant to statute or rule and is deemed to be an important aspect of trial by jury. Id., at 219.
[ Footnote 7 ] Of course, the judge need not defer to a defendant's request where there is no rational possibility of racial prejudice. But since the courts are seeking to assure the appearance and reality of a fair trial, if the defendant claims a meaningful ethnic difference between himself and the victim, his voir dire request should ordinarily be satisfied.
[ Footnote 8 ] We also note that the trial court asked generally whether there were any grounds which might occur to the jurors as to why they could not sit as "fair and impartial" jurors. Coupled with the question concerning aliens, there is little reason to believe that a juror who did not answer this general question would have answered affirmatively a question directed narrowly at racial prejudice.
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, concurring in the result.
I agree with the result reached by the plurality today and with most of its reasoning. I cannot, however, embrace the language contained in the last paragraph of Part II of the opinion which may be perceived as creating a per se rule requiring reversal of any criminal conviction involving a "violent crime" between members of different racial or ethnic groups if the district court refused to voir dire on the issue of racial prejudice. I do not disagree in toto with that paragraph, but fear that its use of the term "violent crime" and the term "different racial or ethnic groups" is apt to spawn new litigation over the meaning of these terms and whether the trial court properly assessed the possibility of racial or ethnic prejudice infecting the selection of the jury. It is undoubtedly true that such prejudice may occur in the case of a defendant accused of a violent crime where the defendant and victim are members of different racial or ethnic groups, and it is also undoubtedly true that there are circumstances other than these which may suggest to the trial judge the need for an inquiry into the possibility of prejudice. But knowing the contentiousness of our profession, the suggestion that a precise definition of "violent crime" or "different racial or ethnic groups" will ever be arrived at [451 U.S. 182, 195] leaves me unwilling to lay down the flat rule which seems to be proposed in the last paragraph of Part II. I would think that in the case of "violent crimes" where the defendant and victims are members of "different racial or ethnic groups," the decision as to inquiry on voir dire as to racial or ethnic prejudice "remains primarily with the trial court, subject to case-by-case review by the appellate courts." See ante, at 192. In my view, it is inappropriate for us to decide that there is always a "reasonable possibility" of prejudice solely because the crime is "violent." I would also not rule out the possibility of a finding of harmless error, but that may well be embraced in footnote 7 to the plurality's opinion.
As can be seen, my differences with the plurality are not great, but we are beseeched on so many appeals to reverse a judgment for procedural reasons which cannot fairly have been said to play a part in the factfinding process that I would leave somewhat more to the trial court's discretion than does the plurality, the decision as to whether or not questions on such as racial or ethnic prejudice should be asked on voir dire. We cannot, in the nature of things, always lay down "bright line" rules, but we should try to avoid definitions that do not define or clarify and hence invite litigation. It seems to me quite conceivable that a thoroughly competent and fairminded district court judge could conclude that the asking of such questions, or the devotion of a substantial amount of time to the inquiry, could well exacerbate whatever prejudice might exist without substantially aiding in exposing it.
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
The question in this case is whether, in the conduct of the voir dire examination of prospective jurors in criminal prosecutions in the federal courts, the trial judge must, upon request, ask at least one question concerning possible prejudice [451 U.S. 182, 196] against the minority group to which the defendant belongs. Settled law provides a simple answer to this question. 1
The plurality's new answer to that question contains two parts: it holds that "federal trial courts must make such an inquiry when requested by a defendant accused of a violent crime and where the defendant and the victim are members of different racial or ethnic groups." Ante, at 192. Because no such "special circumstances" are present in this case, the plurality affirms the judgment of the Court of Appeals. Ante, at 192-194. Heretofore, federal law has required that a racial or ethnic prejudice inquiry be made when requested by the defendant, regardless of the presence or absence of special circumstances indicating that there is a reasonable possibility that prejudice will influence the jury. In this case, because the general questions asked by the learned trial judge were inadequate, I respectfully dissent.
An impartial tribunal is an indispensable element of a fair criminal trial. See In re Murchison, 349 U.S. 133, 136 ; Irvin v. Dowd, 366 U.S. 717, 722 . 2 Before any citizen may be permitted to sit in judgment on his peers, some inquiry into his potential bias is essential. Such bias can arise from two principal sources: a special reaction to the facts of the particular case, or a special prejudice against the individual defendant that is unrelated to the particular case. Much as we wish it were otherwise, we should acknowledge the fact that there are many potential jurors who harbor strong prejudices against all members of certain racial, religious, or [451 U.S. 182, 197] ethnic groups for no reason other than hostility to the group as a whole. 3 Even when there are no "special circumstances" connected with an alleged criminal transaction indicating an unusual risk of racial or other group bias, a member of the Nazi Party should not be allowed to sit in judgment on a Jewish defendant.
In 1931, in Aldridge v. United States, 283 U.S. 308 , this Court addressed the problem of protecting criminal defendants in the federal courts from the possibility of racial or ethnic bias among prospective jurors. That case was not argued or decided in a vacuum. Rather, it followed a long line of state-court decisions requiring that prospective jurors be questioned about such potential prejudices. Aldridge itself involved the special circumstances that the crime at issue was murder, and that the defendant was black and the victim was a white police officer, but neither the reasoning in Chief Justice Hughes' opinion for the Court, nor the reasoning in the state-court opinions from which he quoted at length, relied on such special circumstances. The character of the Aldridge holding is best explained by a quotation of both the text and the appended footnotes discussing the leading cases from Florida, Mississippi, North Carolina, Texas, and South Carolina:
In this case, I agree with the plurality's view that the voir dire was adequate to determine whether any special circumstances might give rise to juror prejudice. The trial judge did inquire about prejudice related to the smuggling of aliens into California, and I agree that the possibility of prejudice resulting from the relationship between the defendant and the witness Bowling's daughter was a matter that the trial judge could best evaluate. However, the voir dire was inadequate as a matter of law because it wholly ignored the risk that potential jurors in the Southern District of California might be prejudiced against the defendant simply because he is a person of Mexican descent. Because the defendant's lawyer perceived a risk of such irrational prejudice in that [451 U.S. 182, 203] District, his request for a specific question concerning it should have been granted. 8
I respectfully dissent.
[ Footnote 1 ] "For more than four decades, it has been the rule in federal courts that a trial court must inquire as to possible racial bias of the veniremen when the defendant is a member of a racial minority. Aldridge v. United States, 283 U.S. 308 . . . (1931)." United States v. Powers, 482 F.2d 941, 944 (CA8 1973) (emphasis in original), cert. denied, 415 U.S. 923 .
[ Footnote 3 ] The fact that such prejudice may not be a pervasive influence in the particular community from which the jury is drawn or even in society at large does not make this concern any less serious. As Chief Justice Hughes explained in Aldridge v. United States, 283 U.S. 308, 314 :
[ Footnote 4 ] See Frasier v. United States, 267 F.2d 62, 66 (CA1 1959); King v. United States, 124 U.S. App. D.C. 138, 139, 362 F.2d 968, 969 (1966); United States v. Gore, 435 F.2d 1110, 1111-1113 (CA4 1970); United States v. Carter, 440 F.2d 1132, 1134-1135 (CA6 1971); United States v. Bamberger, 456 F.2d 1119, 1129 (CA3 1972), cert. denied sub nom. Crapps v. United States, 406 U.S. 969 ; United States v. Robinson, 466 F.2d 780, 781-782 (CA7 1972); United States v. Booker, 480 F.2d 1310, 1310-1311 (CA7 1973); United States v. Powers, 482 F.2d 941, 944 (CA8 1973), cert. denied, 415 U.S. 923 ; United States v. Robinson, 485 F.2d 1157, 1158-1160 (CA3 1973); United States v. Johnson, 527 F.2d 1104, 1106-1107 (CA4 1975); United States v. Bell, 573 F.2d 1040, 1042-1043 (CA8 1978); United States v. Bowles, 574 F.2d 970, 971-973 (CA8 1978); United States v. Williams, 612 F.2d 735, 736-737 (CA3 1979), cert. denied, 445 U.S. 934 . Cf. Kuzniak v. Taylor Supply Co., 471 F.2d 702, 703 (CA6 1972); United States v. Grant, 494 F.2d 120, 122-123, and n. 6 (CA2 1974), cert. denied, 419 U.S. 849 ; United States v. Bear Runner, 502 F.2d 908, 911-913 (CA8 1974).
[ Footnote 5 ] See United States v. Booker, supra.
[ Footnote 6 ] Nothing in Ristaino v. Ross, 424 U.S. 589 , is inconsistent with this interpretation of Aldridge. Ristaino defined the circumstances under which a state trial court is constitutionally required to inquire into racial prejudice on voir dire. The Court in Ristaino expressly noted that it would require, under its supervisory power, that federal trial courts inquire into racial prejudice in cases in which such inquiry was not constitutionally required. 424 U.S., at 597 , n. 9. The Court also noted that [451 U.S. 182, 202] Aldridge was based on the supervisory power, not on the Federal Constitution. 424 U.S., at 598 , n. 10. See United States v. Williams, supra; United States v. Bowles, supra.
[ Footnote 7 ] The Fourth Circuit, in United States v. Gore, supra, examined the state-court decisions cited in Aldridge and found that some involved crimes with no racial overtones whatsoever. See 435 F.2d, at 1111-1112. Chief Justice Hughes' discussion of these decisions in Aldridge indicates that that case established "a broad rule that in any criminal case an accused has a right to inquire whether racial prejudice precludes any juror from reaching a fair and impartial verdict." 435 F.2d, at 1111. See also King v. United States, supra, at 139, 362 F.2d, at 969.
[ Footnote 8 ] It is, of course, clear that the trial judge's duty to give such an instruction was not dependent on the phrasing of the particular questions submitted by defense counsel. See Aldridge, 283 U.S., at 311 . It is equally clear that, although trial judges have broad discretion to formulate voir dire questions, the general question whether there was any reason "why you could not sit in this case as a fair and impartial juror," see ante, at 186, is not an adequate substitute for a specific inquiry; if it were, trial judges might be well advised simply to ask that question and nothing else. See, e. g., United States v. Carter, supra, at 1134-1135; United States v. Robinson, supra, at 782. [451 U.S. 182, 204]