* Managing Editor, Boston College Third World Law Journal.
1 See, e.g., Dred Scott v. Sanford, 60 U.S (19 How.) 393, 404–05 (1857)(holding that a slave made free by being brought to a state without slavery does not become a citizen of the United States through this action, and is still property); Plessy v. Ferguson, 163 U.S. 537, 548 (1896)(holding that separate but equal was constitutional); Korematsu v. United States, 323 U.S. 214, 218–19 (1944)(holding the internment of Japanese Americans in internment camps during World War II constitutional).
2 See generally, e.g., In re Bradwell, 55 Ill. 535 (1869). This case was heard and determined on Sept. 1869, but was unavoidably omitted from its proper place in the report of cases from that term. It is available on Westlaw at 1869 WL 5503 (Ill) and on LEXIS at 1876 Ill. LEXIS 537.
3 See, e.g., Dred Scott, 60 U.S. (19 How.) at 451.
4 See generally Bowers v. Hardwick, 478 U.S. 186 (1986); Romer v. Evans, 517 U.S. 620 (1996).
5 See Linda Greenhouse, When Second Thoughts In Case Come Too Late, N.Y. Times, Nov. 5, 1990, at A14.
6 See generally Hardwick, 478 U.S. 186.
7 See id. at 187–88.
8 See id.; Peter Irons, The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court 395 (1990).
9 See Hardwick, 478 U.S. at 190–91.
10 See id. at 190.
11 See generally, e.g., Thomas J. Coleman, Jr., Disordered Liberty: Judicial Restrictions on the Rights to Privacy and Equality in Bowers v. Hardwick and Baker v. Wade, 12 T. Marshall L. Rev. 81 (1986); Daniel O. Conkle, The Second Death of Substantive Due Process, 62 Ind. L.J. 215, 221–37 (1987); Anne B. Goldstein, History, Homosexuality, and Political Values: Searching for the Hidden Determinants of Bowers v. Hardwick, 97 Yale L.J. 1073 (1988); Frank Michelman, Law’s Republic, 97 Yale L.J. 1493 (1988); Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737 (1989); Annamay T. Sheppard, Private Passion, Public Outrage: Thoughts on Bowers v. Hardwick, 40 Rutgers L. Rev. 521 (1988); Thomas B. Stoddard, Bowers v. Hardwick: Precedent by Personal Predilection, 54 U. Chi. L. Rev. 648 (1987); Symposium, Law, Community and Moral Reasoning, 77 Cal. L. Rev. 475 (1989); Norman Vieira, Hardwick and the Right of Privacy, 55 U. Chi. L. Rev. 1181 (1988).
12 While Hardwick has never been reversed or overruled, some decisions have limited its holding. See, e.g., Watkins v. U.S. Army, 837 F.2d 1428, 1438–39 (9th Cir. 1988)(noting that “nothing in Hardwick suggests that the state may penalize gays for their sexual orientation,” and that “nothing in Hardwick actually holds that the state may make invidious distinctions when regulating sexual conduct”).
13 See, e.g., Ariz. Rev. Stat. Ann. § 13–1412 (West 1989); Ark. Code Ann. § 5–14–122 (Michie 1997); Fla. Stat. Ann. § 800.02 (West 1992); Ga. Code Ann. § 16–6–2 (1996); Idaho Code § 18–6605 (1997); Kan. Stat. Ann. § 21–3505 (1995); Ky. Rev. Stat. Ann. § 510.100 (Michie 1990); La. Rev. Stat. Ann. § 14:89 (West 1997); Md. Code Ann. art. 27 §§ 553–554 (1996); Mich. Comp. Laws Ann. §§ 750.158, 750.338 (1990); Miss. Code Ann. § 97–29–59 (1994); Mo. Rev. Stat. § 566.090 (1979); Mont. Code Ann. §§ 45–2–101(20), 45–5-505 (1997); Nev. Rev. Stat. Ann. § 201.190 (Michie 1995); N.C. Gen. Stat. § 14–177 (1997); Okla. Stat. tit. 21, § 886 (1983); S.C. Code Ann. § 16–15–120 (Law. Co-op.fl1985); Tex. Penal Code Ann. §§ 21.01(1), 21.06 (West 1994); Utah Code Ann. § 76–5–403 (Supp.fl1995); Va. Code Ann. § 18.2–361 (Michie 1996). For instance, the language of the Arkansas law is as follows: “Sodomy. (a) A person commits sodomy if such person performs any act of sexual gratification involving: (1) The penetration, however slight, of the anus or mouth of an animal or a person by the penis of a person of the same sex or an animal; or (2) The penetration, however slight, of the vagina or anus of an animal or a person by any body member of a person of the same sex or an animal. (b) Sodomy is a Class A misdemeanor.” Ark. Code Ann. § 5–14–122 (Michie 1997).
14 See, e.g., Williams v. State, 316 So. 2d. 362, 363, 364 (1975)(where the court describes sexual relations between persons of the same sex as a crime involving moral turpitude which can be used to impeach a witness).
15 See, e.g., United States v. Miller, 3 M.J. 292, 292–93 (1977) (defendant accused of rape confessed to the charge of sodomy in order to use a consent defense). A consent defense involves a claim that the “victim” of a rape or sexual assault consented to the sexual act, and if both the defendant and the victim are of the same sex this could open both of them up to charges of homosexual sodomy. See, e.g., Ga. Code Ann. § 16–6–2 (1996); Tex. Penal Code Ann. §§ 22.01(1), 21.06 (West 1994).
16 See generally Robert B. Mison, Comment, Homophobia in Manslaughter: The Homosexual Advance As Insufficient Provocation, 80 Calif. L. Rev. 133 (1992)(discussing the use of the homosexual advance defense to mitigate murder to manslaughter where the victim allegedly made a homosexual advance toward the defendant); Joshua Dressler, When “Heterosexual” Men Kill “Homosexual” Men: Reflections on Provocation Law, Sexual Advances, and the “Reasonable Man” Standard, 85 J. Crim. L. & Criminology 726 (1995) (criticizing and commenting on Mison’s article).
17 See Mison, supra note 16, at 133.
18 See infra Part I.
19 Cf. infra Part I.
20 See, e.g., U.S. Const. amend. VI. The jury is so important that the Constitution of the United States guarantees a jury trial in criminal prosecutions. See id.
21 See, e.g., 28 U.S.C.A. § 1861 (1994); Strauder v. West Virginia, 100 U.S. 303, 308 (1879) (holding a West Virginia law precluding Blacks from sitting on juries to be a violation of the Fourteenth Amendment’s Equal Protection Clause).
22 See Teresa Eileen Kibelstis, Student Article, Preventing Violence Against Gay Men and Lesbians: Should Enhanced Penalties at Sentencing Extend to Bias Crimes Based On Victim’s Sexual Orientation, 9 Notre Dame J.L. Ethics & Pub. Pol’y 309, 325 (1995).
23 See Williams v. State, 316 So. 2d. 362, 363, 364 (1975).
24 See infra Part III.
25 See 28 U.S.C.A. § 1861 (1994); Williams v. State, 399 U.S. 78, 100 (1970)(stating that “the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence”).
26 See Mark S. Sobus, Commensurability: Understanding Jury Research and Juror Information Processing, 65 Def. Couns. J. 408, 408 (1998).
27 See Alan S. Yang, Attitudes Toward Homosexuality, Pub. Opinion Q., Fall 1997, at 477, 487. A 1994 New York Times/CBS News poll showed that 45% of respondents thought homosexuality should be legal and 46% thought it should not be legal. See id.
28 See id.
29 See, e.g., William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1964–1961, 24 Fla. St. U. L. Rev. 703, 786 (1997)(noting case where jury deliberated for forty hours and eventually deadlocked because one juror “would vote a homosexual guilty ‘until Hell froze over’”). Consider Federal Rules of Evidence 608, 609 and 403 on the admissibility of specific instances of conduct. See Fed. R. Evid. 403; Fed. R. Evid. 608; Fed. R. Evid. 609. Rule 608 excludes extrinsic evidence of prior bad acts. See Fed. R. Evid. 608. Additionally, a witness may be examined about these prior acts only if probative of the truthfulness or untruthfulness of that witness. See Fed. R. Evid. 608. It is also within the judge’s discretion to exclude the evidence if its probative value is substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403. The purpose of these limitations is to guard against a jury convicting a defendant for the prior bad acts or for the propensity to commit a crime. See Fed. R. Evid. 608 (Committee Notes).
30 See Yang, supra note 27, at 489, 491.
31 See id. at 489, 491, 493.
32 See Drury Sherrod & Peter M. Nardi, Homophobia in the Courtroom: An Assessment of Biases Against Gay Men and Lesbians in a Multiethnic Sample of Potential Jurors, in Stigma and Sexual Orientation: Understanding Prejudice Against Lesbians, Gay Men, and Bisexuals 24, 36 (Gregory M. Herek ed., 1998).
33 Id. at 27 (citing to a study done by Pennington & Hastie, 1992).
34 Id.
35 See generally Sherrod & Nardi, supra note 32 at 25, 27, 33–36.
36 See Judith H. Germano, Note, Preserving Peremptories: A Practitioner’s Prerogative, 10 St. John’s J. Legal Comment 431, 432 (1995) (stating that, when selecting a jury, both sides use peremptory challenges to exclude people they feel are predisposed to the opposition’s side); Paul R. Lynd, Juror Sexual Orientation: The Fair Cross-Section Requirement, Privacy, Challenges for Cause, and Peremptories, 46 U.C.L.A. L. Rev. 231, 242 (1998); James Peterson, Comment, Behind the Curtain of Privacy: How Obscenity Law Prohibits the Expression of Ideas About Sex and Gender, 1998 Wis. L. Rev. 625, 641–42 (1998).
37 See Solomon M. Fulero & Steven D. Penrod, The Myths and Realities of Attorney Jury Selection Folklore and Scientific Jury Selection: What Works?, 17 Ohio N.U.L. Rev. 229, 229 (1990).
38 See id.
39 See Debra Sahler, Comment, Scientifically Selecting Jurors While Maintaining Professional Responsibility: A Proposed Model Rule, 6 Alb. L.J. Sci. & Tech. 383, 402–03 (1996).
40 See Fulero & Penrod, supra note 37, at 230–37; Abbe Smith, “Nice Work if You Can Get It”: “Ethical” Jury Selection in Criminal Defense, 67 Fordham L. Rev. 523, 549 (1998).
41 See Folero & Penrod, supra note 37, at 230–37.
42 See Development in the Law—The Civil Jury, 110 Harv. L. Rev. 1408, 1464 (1997).
43 See id. Much has been written on discrimination in jury selection and how it can work against the idea of fairness in our justice system. See generally, e.g., Edward S. Adams & Christian S. Lane, Constructing a Jury that is Both Impartial and Representative: Utilizing Cumulative Voting in Jury Selection, 73 N.Y.U. L. Rev. 703 (1998); Hiroshi Fukurai & Darryl Davies, Affirmative Action in Jury Selection: Racially Representative Juries, Racial Quotas, and Affirmative Juries of the Hennepin Model and the Jury de Medietate Linguae, 4 Va. J. Soc. Pol’y & L. 645 (1997).
44 See Lynd, supra note 36, at 231, 249; Peterson, supra note 36, at 641–42.
45 See infra Parts I.B, II.
46 See Developments in the Law—Sexual Orientation and the Law, 102 Harv. L. Rev. 1508, 1551–54 (1989) [hereinafter Sexual Orientation]; Kristin S. Dodge, “Bashing Back”: Gay and Lesbian Street Patrols and the Criminal Justice System, 11 Law & Ineq. J. 295, 360–61 (1993).
47 For a more in-depth look at this subject, see generally Elizabeth J. Kramer, Note, When Men are Victims: Applying Rape Shield Laws to Male Same-Sex Rape, 73 N.Y.U. L. Rev. 293 (1998); Cindy Ellen Hill, Chicken-Hawk!: Evidence of a Complainant’s Homosexuality Under Vermont’s Rape Shield Law, 22 Vt. L. Rev. 711 (1998).
48 See Susan Estrich, Rape, 95 Yale L.J. 1087, 1094 (1986).
49 See Jane E. Larson, “Even a Worm Will Turn at Last”: Rape Reform in Late Nineteenth-Century America, 9 Yale J.L & Human 1, 11 (1997).
50 See Estrich, supra note 48, at 1095.
51 See Cynthia Ann Wicktom, Note, Focusing on the Offender’s Forceful Conduct: A Proposal for the Redefinition of Rape Laws, 56 Geo. Wash. L. Rev. 399, 403 (1988).
52 See Rachel M. Capoccia, Note, Piercing the Veil of Tears: The Admission of Rape Crisis Counselor Records in Acquaintance Rape Trials, 68 S. Cal. L. Rev. 1335, 1343–44 (1995).
53 See Kramer, supra note 47, at 303.
54 See David P. Bryden & Sonja Lengnick, Rape in the Criminal Justice System, 87 J. Crim. L. & Criminology 1194, 1195–96 (1997); Francis A. Gilligan et. al., The Theory of “Unconscious Transference”: The Latest Threat to the Shield Laws Protecting the Privacy of Victims of Sex Offenses, 38 B.C. L. Rev. 107, 136 (1996).
55 See Estrich, supra note 48, at 1111 n.63; Fed. R. Evid. 412.
56 Kramer, supra note 47, at 303.
57 Fed. R. Evid. 412 (Committee Note).
58 See id.
59 See Sakthi Murphy, Comment, Rejecting Unreasonable Sexual Expectations: Limits on Using a Rape Victim’s Sexual History to Show the Defendant’s Mistaken Belief in Consent, 79 Calif. L. Rev. 541, 552 (1991).
60 See Kramer, supra note 47, at 301.
61 See id.
62 See Hill, supra note 47, at 714; Kramer, supra note 47, at 297.
63 See Hill, supra note 47.
64 Id. at 716, 717–18.
65 See id.
66 See id.
67 See id. at 721–22.
68 See supra note 15 and accompanying text; Sexual Orientation, supra note 46, at 1520.
69 See Hill, supra note 47, at 755.
70 See Kramer, supra note 47, at 304–05; Fed. R. Evid. 412 (Committee Notes).
71 See Kramer, supra note 47, at 307.
72 See id.; Fed. R. Evid. 412 (Committee Notes).
73 See Dodge, supra note 46, at 360–61.
74 See Hill, supra note 47, at 714; Kramer, supra note 47, at 297.
75 See Kramer, supra note 47, at 316.
76 See Hill, supra note 47, at 714.
77 See Dodge, supra note 46, at 360–61.
78 See Kramer, supra note 47, at 310. For example, in one case the defense offered to show that the alleged victim of rape, in a same-sex rape case, had engaged or offered to engage in other homosexual acts and therefore had consented in this instance at issue. See Kvasnikoff v. State, 674 P.2d 302, 304 (Alaska Ct. App. 1983). The judge did not allow this evidence into trial for fear that the jury might be confused as to whether they were trying the victim for being a homosexual or whether they were to determine what really happened on the night in question. See id.
79 See Judge Rules Plaintiff’s Sexual History Relevant: Teacher Convicted of Abusing Boy May Introduce Evidence Victim Had Homosexual Relations, Peoria J. Star (Illinois), Sept. 18, 1997, at B6 (reporting that the court ruled that prior homosexual relations of the victim of sexual abuse were relevant in a civil trial concerning the sexual abuse).
80 See id. (stating that the judge claimed rape shield statute did not apply).
81 See State v. Dixon, 668 S.W.2d 123, 125 (Mo. Ct. App. 1984).
82 Id.
83 See State v. Hart, 678 N.E.2d 952, 954. (Ohio Ct. App. 1996).
84 See id. at 953, 954–55.
85 See People v. Hackett, 365 N.W. 2d 120, 122–23, 126–27. (Mich. 1984).
86 See id. at 126.
87 Id.
88 Id.
89 See Kvasnikoff v. State, 674 P.2d 302, 304 (Alaska Ct. App. 1983).
90 Id.
91 See id.; Hackett, 365 N.W. 2d at 126.
92 See generally People v. Kemblowski, 559 N.E.2d 247 (Ill. App. Ct. 1990).
93 See Kemblowski, 559 N.E.2d at 248.
94 See id. at 250.
95 See State v. Williams, 487 N.E.2d 560, 560–61 (Ohio 1986).
96 See id. at 560.
97 See id. at 561.
98 See id. at 563.
99 Id.
100 See Williams, 487 N.E.2d at 563.
101 For other examples of how courts have dealt with this issue, see generally Latzer v. Abrams, 602 F. Supp. 1314 (E.D.N.Y. 1985) (confrontation rights violated by not allowing cross-examination of boy and his brothers with respect to sexual relations with other men); Laughlin v. State, 872 S.W.2d 848 (Ark. 1994)(attempt to cross-examine victim about sexual relations with his brother irrelevant and impermissible); People v. Murphy, 919 P.2d 191 (Colo. 1996)(rape shield precludes evidence of sexual orientation); People v. Koon, 713 P.2d 410 (Colo. Ct. App. 1985)(14-year-old boy’s prior or subsequent sexual conduct irrelevant); People v. Sandoval, 552 N.E.2d 726 (Ill. 1990)(defendant not allowed to introduce evidence that victim engaged in anal sex with another man to rebut victim’s testimony); Kelley v. State, 586 N.E.2d 927 (Ind. Ct. App. 1992)(evidence of victim’s alleged past sexual conduct was not admissible); Lucado v. State, 389 A.2d 398 (Md. Ct. Spec. App. 1978) (testimony as to victim’s alleged lack of reputation as a homosexual did not relate to victim’s chastity and should have been allowed); People v. Covich, 661 N.Y.S. 2d 369 (1997)(rape shield statute applicable to prevent testimony of 27-year-old homosexual encounter); Commonwealth v. Quartman, 458 A.2d 994 (Pa. Super. Ct 1983)(no constitutional violation in applying rape shield statute); State v. Lang, 403 S.E.2d 677 (S.C. Ct. App. 1991) (defendant prejudiced by not being permitted to enter evidence of victim’s sexuality for purposes of attacking credibility).
102 See Fed. R. Evid. 412 (Committee Notes) (stating that the purpose of the rule is to safeguard alleged victims from invasion of privacy and to encourage victims to participate in legal proceedings against offenders).
103 See, e.g., Kvasnikoff v. State, 674 P.2d 302, 304 (Alaska Ct. App. 1983) (judge did not allow evidence of alleged victim’s past homosexual relations for fear it would unduly prejudice the jury against the victim); State v. Lang, 403 S.E. 2d at 678 (holding that the defendant was prejudiced in not being able to enter evidence of victim’s sexuality).
104 For a more complete discussion of this issue, see Dressler, supra note 16; Mison, supra note 16.
105 See Mison, supra note 16, at 171, 174.
106 See id.
107 See id. at 133.
108 See id. at 144–46.
109 See, e.g., Ala. Code § 13A-3–23 (1994); Alaska Stat. § 11.81.335 (Michie 1998); Ariz. Rev. Stat. Ann. § 13–404 (1989).
110 See Mison, supra note 16, at 140–41.
111 Cf. id. (elements of provocation may include the presence of heat of passion, extreme mental or emotional disturbance, or a sudden quarrel).
112 See, e.g., The Committee on Standard Jury Instructions, Criminal, of the Superior Court of Los Angeles County California, California Jury Instructions—Criminal § 5.12, Justifiable Homicide in Self-Defense (6th ed.)(1996)[hereinafter Self-Defense]; The Committee on Standard Jury Instructions, Criminal, of the Superior Court of Los Angeles County California, California Jury Instructions—Criminal § 8.37, Manslaughter(6th ed.)(1996). Self-defense is an affirmative defense that, if proved, allows the defendant to be aquitted of any crime and possibly to go free. See Self-Defense, supra.
113 See, e.g., Self-Defense, supra, note 112. Mitigation to manslaughter will carry with it the sentence for the crime of manslaughter. See, e.g., Mass. Gen. L. Ann. ch. 265 § 13 (West 1994) (allowing sentence of up to twenty years in prison for manslaughter conviction).
114 See Mison, supra note 16, at 133; Mass. Gen. L. Ann. Ch. 265 § 13 (West 1994).
115 570 N.E.2d 918 (Ind. Ct. App. 1991).
116 See id. at 922.
117 See id.
118 See id. at 921–22.
119 See id. at 922.
120 Mison, supra note 16, at 158.
121 See id.
122 See id. at 161.
123 See id.
124 See id.
125 See Mison, supra note 16, at 162.
126 See id. at 162–63.
127 See id at 177–78.
128 See id. at 167.
129 See, e.g., The Committee on Standard Jury Instructions, Criminal, of the Superior Court of Los Angeles County California, California Jury Instructions—Criminal § 8.10, Murder (6th ed.)(1996).
130 Mison, supra note 16, at 174.
131 See generally, e.g., State v. Skaggs, 586 P.2d 1279 (Ariz. 1978)(declining to require manslaughter instruction); Commonwealth v. Halbert, 573 N.E.2d 975 (Mass. 1991)(holding that lower court did not err in refusing to instruct the jury on voluntary manslaughter); Commonwealth v. Medeiros, 479 N.E.2d 1371 (Mass. 1985)(holding that the defendant was not entitled to manslaughter instruction); State v. Volk, 421 N.W. 2d 360 (Minn. Ct. App. 1988)(holding that the defendant was not entitled to instruction on heat of passion manslaughter).
132 See Skaggs, 586 P.2d at 1284. In this case the victim made a homosexual advance toward Skaggs, who rebuffed it, telling the victim he was not attracted to men. See id. at 1281. The victim then suggested they enter into a relationship together and Skaggs replied that the victim should wait in the trailer because he was going to do him a “big favor.” See id. Skaggs then went out to his truck and obtained a pistol, returned to the mobile home and shot the victim twice in the head and once in the chest. See id. Skaggs was convicted of murder. See id. at 1280.
133 See Medieros, 479 N.E.2d at 1374–75.
134 See id. at 1374.
135 See id.
136 See id.
137 See id.
138 See Medieros, 479 N.E.2d at 1374.
139 See id.
140 See id. at 1376.
141 See 421 N.W.2d 360, 365 (Minn. Ct. App. 1988).
142 See id. at 362, 364.
143 See id. at 362.
144 See id.
145 See id.
146 See Volk, 421 N.W. 2d at 362.
147 See id.
148 See id.
149 See id.
150 See id. at 365.
151 Volk, 421 N.W. 2d at 365.
152 Id.
153 See Commonwealth v. Halbert, 573 N.E.2d 975, 976 (Mass. 1985).
154 See id. at 978–79.
155 Id. at 979.
156 See id.
157 See id.
158 580 A.2d 1362 (Pa. Super. Ct. 1990).
159 See id. at 1363.
160 Id. at 1364.
161 See id. at 1364–65, 1363.
162 See id.
163 See, e.g., People v. Saldivar, 497 N.E.2d 1138 (Ill. 1986).
164 See id. at 1339.
165 See id.
166 See id.
167 Id. at 1140.
168 See Saldivar, 497 N.E.2d at 1141, 1145.
169 See id. at 1139.
170 See, e.g., State v. Skaggs, 586 P.2d 1297, 1284 (Ariz. 1978) (finding voluntary manslaughter instructions unnecessary); Saldivar, 497 N.E.2d at 1140, 1145 (allowing a mitigation for provocation); Schick v. State, 570 N.E.2d 918, 922 (Ind. Ct. App. 1991) (allowing conviction for voluntary manslaughter); Commonwealth v. Medieros, 479 N.E.2d 1371, 1376 (Mass. 1985) (refusing to allow involuntary manslaughter instruction); Commonwealth v. Halbert, 573 N.E.2d 975, 976 (Mass. 1991) (affirming trial judge’s refusal to give manslaughter instruction); State v. Volk, 421 N.W.2d 360, 365 (Minn. Ct. App. 1988) (affirming that there was no reason to give manslaughter instruction).
171 See, e.g., Rick Moore, Justice is Not Blind for Gays, San Diego Union, Jan. 10, 1989, at B7; Panel to Examine Remarks by Judge on Homosexuals, N.Y. Times, Dec. 21, 1988, at A16.
172 Panel to Examine Remarks by Judge on Homosexuals, supra note 171.
173 See id.
174 See supra Part II.
175 Mison, supra note 16, at 171.
176 See id.
177 See Mison, supra note 16, at 171; cf. Sexual Orientation, supra note 46, at 1541.
178 See Lynd, supra note 36, at 246, 236; see generally United States v. Click, 807 F.2d 847 (1987) (9th Cir. 1986); Commonwealth v. Plunkett, 664 N.E.2d 833 (1996).
179 See Lynd, supra note 36, at 236–37.
180 See id. at 237; see also 18 U.S.C.A. § 3A1.1 (1999) (increasing penalty if act found to be a hate crime); Tex. Penal Code Ann. § 12.47 (West 1997) (increasing penalties if the crime committed because of bias or prejudice).
181 See id.; see also Romer v. Evans, 517 U.S. 620, 624 (1996) (citing Denver Rev. Municipal Code, Art. IV §§ 28–91 to 28–116 (1991); Aspen Municipal Code § 13–98 (1977); Boulder Rev. Code §§ 12–1–1 to 12–1–11 (1987)).
182 See Lynd, supra note 36, at 236.
183 See id. at 238.
184 See supra Parts II, III; Lynd, supra note 36, at 236.
185 See 28 U.S.C.A. § 1861 (1994).
186 U.S. Const. amend. VI.
187 See Lockhart v. McCree, 476 U.S. 162, 178 (1986)(quoting Wainwright v. Witt, 469 U.S. 412, 423 (1985)).
188 See 28 U.S.C.A.§ 1861 (1994).
189 See Toni M. Massaro, Peremptories or Peers?—Rethinking Sixth Amendment Doctrine, Images, and Procedures, 64 N.C.L. Rev. 501, 548–50 (1986). But see Strauder v. West Virginia, 100 U.S. 303, 308 (1879) (“The very idea of a jury is a body . . . composed of the peers or equals of the person whose rights it is selected or summoned to determine. . . .”).
190 See Batson v. Kentucky, 476 U.S. 79, 79 (1986)(citing Strauder, 100 U.S. at 305 (“[A] defendant has no right to a ‘petit jury composed in whole or in part of persons of his own race.’”)). The court limits this holding by stating that the Equal Protection Clause “forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black.” See id. at 97. See also Massaro, supra note 189, at 535–36, 537, 556–57.
191 See 419 U.S. 522, 530 (1975).
192 See Lynd, supra note 36, at 241.
193 See id.
194 See id. at 241–42.
195 See United States v. Click, 807 F.2d 847, 848 (9th Cir. 1987).
196 See id. at 848, 849.
197 See id. at 850.
198 See id. at 850 (quoting United States v. Jones, 722 F.2d 528, 529 (9th Cir.1983)).
199 See id.
200 See Click, 807 F.2d at 850.
201 See, e.g., Commonwealth v. Plunkett, 664 N.E. 833, 837 (Mass. 1996)(holding that questions to the venire collectively were sufficient); State v. Dishon, 687 A.2d 1074, 1082 (1997) (holding that if individual voir dire occurs without the defendant present, when he specifically requested to be present, his rights were violated).
202 See Plunkett, 664 N.E.2d at 838.
203 Id. at 835, 838 & n.3.
204 See id. at 838.
205 See id.
206 Id. at 838 n.4.
207 See Plunkett, 664 N.E.2d. at 838.
208 See id.
209 See id.
210 See State v. Dishon, 687 A.2d. 1074, 1076, 1080–81 (1997).
211 See id. at 1082 n.7.
212 Id. at 1080.
213 See id.
214 See id.
215 Dishon, 297 N.J. Super. at 1080.
216 See id. at 1082.
217 See id.
218 See id.
219 See id. at 1082–83.
220 See State v. Lambert, 528 A.2d 890, 892 (1987).
221 Id.
222 Id.
223 See id.
224 See id.
225 Lambert, 528 A.2d at 892.
226 See Brent J. Gurney, Note, The Case for Abolishing Peremptory Challenges in Criminal Trials, 21 Harv. C.R.-C.L. L. Rev. 227, 268–72 (1986).
227 See id.; Lynd, supra note 36, at 236.
228 See Lynd, supra note 36, at 258, 279–80.
229 See id. at 257 & n.131 (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 514 (1984)(Blackmun, J., concurring) (“We need not decide, however, whether a juror, called upon to answer questions posed to him in court during voir dire, has a legitimate expectation, rising to the status of a privacy right, that he will not have to answer those questions.”)).
230 See Lynd, supra note 36, at 257.
231 Id. at 257–58.
232 See id. at 258.
233 See id.
234 See id.
235 See Lynd, supra note 36, at 261.
236 See, e.g., Romer v. Evans, 517 U.S. 620, 623 (1996) (citing Denver Rev. Municipal Code, Art. IV §§ 28–91 to 28–116 (1991); Aspen Municipal Code § 13–98 (1977); Boulder Rev. Code §§ 12–1–1 to 12–1–11 (1987)); Cal. Penal Code 422.6(a)(b)(West 1988 & Supp. 1993).
237 See generally United States v. Barnes, 604 F.2d 121 (2nd Cir. 1979). Barnes holds that voir dire on the ethnic background of jurors is not required where prejudice shared by members of an ethnic group as to black persons would have been uncovered by the questions about attitudes toward blacks. See id. at 140.
238 See Lynd, supra note 36, at 265.
239 See id. at 255–67 (describing juror privacy interest).
240 See id. at 265.
241 See id. at 270.
242 See id at 267.
243 See Lynd, supra note 36, at 267.
244 See id. at 268–69.
245 See id. at 270.
246 See Jennifer Lee Urbanski, Casenote, Georgia v. McCollum: Protecting Jurors from Race Based Peremptory Challenges But Forcing Criminal Defendants to Risk Biased Juries, 24 Pac. L.J. 1887, 1890–91 (1993).
247 Id. at 271. For a more complete discussion of how to use challenges for cause and peremptory challenges, see id. at 270–87.
248 See, e.g., Commonwealth v. Plunkett, 664 N.E.2d. 833, 838 (Mass. 1996) (trial judge struck jurors for cause after they admitted bias or ambivalence toward homosexuals).
249 See Lynd, supra note 36, at 274.
250 See id. at 276–78.
251 See Smith v. Phillips, 455 U.S. 209, 222 (1982)(O’Connor, J., concurring).
252 See Lynd, supra note 36, at 282–84 (citing Batson v. Kentucky, 476 U.S. 79, 87 (1986); Purkett v. Elem, 514 U.S. 765, 767, 768, 769 (1995)(per curiam); Georgia v. McCollum, 505 U.S. 42, 43 (1992); J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127, 128 (1994)).
253 See Lynd, supra note 36, at 282.
254 See Lynd, supra note 36, at 232–33 (discussing People v. White, 172 Cal. Rptr. 612 (Ct. App. 1981)). There is a suggestion that, in a noted trial of a man accused of killing a homosexual politician in San Francisco, deliberate efforts were made by the prosecutor to exclude all lesbians and gay men from the jury. See id.
255 See supra note 237–40 and accompanying text.
256 See supra note 241–42 and accompanying text.
257 See supra note 244–45 and accompanying text.
258 See supra note 248–50 and accompanying text.
259 See, e.g., Bowers v. Hardwick, 478 U.S. 186, 189 (1986) (holding that statute applying to all sodomy on its face is legal as applied to homosexuals); Amy D. Ronner, Bottoms v. Bottoms: The Lesbian Mother and the Judicial Perpetuation of Damaging Stereotypes, 7 Yale J.L. & Feminism 341, 356 (1995) (unequal treatment of homosexual parents).
260 See generally Yang, supra note 27.
261 See generally, e.g., Fed. R. Evid. 412; Batson v. Kentucky, 476 U.S. 79 (1986).
262 See supra Part II.
263 See supra Part III.