Brown v. North Carolina, 479 U.S. 940 (1986). · Go Syfert
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Brown v. North Carolina, 479 U.S. 940 (1986). Cases Citing This Book View Copy Cite
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cited 3× by 1 distinct case · “An enterprise must be more than a group of people who get together to commit a ‘pattern of racketeering activity.’ ”
893 citation events (237 in the last 25 years) across 61 distinct courts.
Strongest positive: Gary Ray Bowles v. Secretary, Department of Corrections (ca11, 2010-06-18) · Strongest negative: State v. McIntee (idahoctapp, 1993-11-08)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 50 distinct citers.
examined Cited "but see" State v. McIntee (3×)
Idaho Ct. App. · 1993 · signal: but see · confidence high
But see State v. Badgett, 200 Conn. 412 , 512 A.2d 160 (1986), cert. denied, 479 U.S. 940 , 107 S.Ct. 423 , 93 L.Ed.2d 373 (1992) (search of bag discovered in arrestee’s vehicle when arrestee already in police car leaving scene held not incident to arrest); State v. Murray, 135 N.H. 369 , 605 A.2d 676 (N.H.1992) (search of defendant’s purse when defendant not at hand but in an ambulance to be transported to hospital held not incident to arrest).
examined Cited as authority (verbatim quote) Gary Ray Bowles v. Secretary, Department of Corrections (4×) also: Cited "see, e.g."
11th Cir. · 2010 · quote attribution · 1 verbatim quote · confidence high
permitting prosecutors to take into account the concerns expressed about capital punishment by prospective jurors, or any other factor, in exercising peremptory challenges simply does not implicate the concerns expressed in witherspoon.
discussed Cited as authority (quoted) State v. Hughes
N.M. Ct. App. · 1988 · signal: compare · quote attribution · 1 verbatim quote · confidence low
an enterprise must be more than a group of people who get together to commit a 'pattern of racketeering activity.
examined Cited as authority (rule) Gary Ray Bowles v. Secretary, Department of Corrections (3×) also: Cited "see, e.g."
11th Cir. · 2010 · confidence medium
It said nothing, however, about the prosecution’s use of peremptory challenges to eliminate jurors who do not meet that standard and would otherwise survive death qualification.” Lockhart v. McCree, 476 U.S. 162 , 190–91, 106 S.Ct. 1758, 1774 (1986) (Marshall, J., joined by Brennan & Stevens, JJ., dissenting) (alteration, citation, and quotation marks omitted)); see also Brown v. North Carolina, 479 U.S. 940 , 107 S.Ct. 423 , 424–27 (1986) (Brennan, J., joined by Marshall, J., dissenting from denial of cert.) (acknowledging that Witherspoon applies only to challenges for cause and disa…
examined Cited as authority (rule) Gary Ray Bowles v. Secretary, Department of Corrections, Florida Attorney General (3×) also: Cited "see, e.g."
11th Cir. · 2010 · confidence medium
It said nothing, however, about the prosecution’s use of peremptory challenges to eliminate jurors who do not meet that standard and would otherwise survive death qualification.” Lockhart v. McCree, 476 U.S. 162 , 190–91, 106 S.Ct. 1758, 1774 (1986) (Marshall, J., joined by Brennan & Stevens, JJ., dissenting) (alteration, citation, and quotation marks omitted)); see also Brown v. North Carolina, 479 U.S. 940 , 107 S.Ct. 423 , 424–27 (1986) (Brennan, J., joined by Marshall, J., dissenting from denial of cert.) (acknowledging that Witherspoon applies only to challenges for cause and disa…
examined Cited as authority (rule) State v. Rhines (6×) also: Cited "see"
S.D. · 1996 · confidence medium
However, “[t]here is no basis for declaring that a juror’s attitudes towards the death penalty are similarly irrelevant to the outcome of a capital sentencing proceeding.” Brown v. North Carolina, 479 U.S. 940, 941 , 107 S.Ct. 423, 424 , 93 L.Ed.2d 373, 374 (1986) (O’Connor, J., concurring).
discussed Cited as authority (rule) People v. Williams
Ill. · 1994 · confidence medium
Ed. 2d 373, 375 , 107 S. Ct. 423, 424 (concurring in the denial of certiorari in a case involving the use of peremptory challenges of jurors based upon their viewpoints toward capital punishment), held that the Batson decision, relating to peremptory challenges of venirepersons on account of their race, does not extend to forbid the practice of excusing potential jurors because of their reservations regarding capital punishment.
examined Cited as authority (rule) People v. Howard (4×) also: Cited "see, e.g."
Ill. · 1991 · confidence medium
Ed. 2d 373, 374 , 107 S. Ct. 423, 424 (O’Connor, J., concurring in denial of certiorari).) Other courts, too, have held that Batson and Witherspoon together do not forbid the prosecutor to peremptorily challenge potential jurors on the basis of their viewpoints toward capital punishment.
discussed Cited as authority (rule) People v. Edwards (2×)
Cal. · 1991 · confidence medium
Nor was the circuit court that reversed that decision on this very point. ( Brown v. Dixon, supra . ) We agree with the circuit court, and with the opinion of Justice O'Connor concurring in the denial of certiorari in an earlier appeal of the same case. ( Brown v. North Carolina (1986) 479 U.S. 940, 940-942 [ 93 L.Ed.2d 373 , 107 S.Ct. 423 ] (conc. opn. of O'Connor, J.); cf. the dissenting opinion of Justice Brennan in the same case, id. at pp. 942-945 [93 L.Ed.2d at pp. 375-377].) 2.
discussed Cited as authority (rule) State v. Brogden
N.C. · 1991 · confidence medium
This Court has previously rejected defendant’s argument and has held that “prosecutors may ‘take into account the concerns expressed about capital punishment by prospective jurors, or any other factor, in exercising peremptory challenges.’ ” State v. Robbins, 319 N.C. 465, 494 , 356 S.E.2d 279, 297 (quoting Brown v. North Carolina, 479 U.S. 940, 940 , 93 L.
examined Cited as authority (rule) David Junior Brown v. Gary Dixon, Warden, Central Prison, David Junior Brown v. Gary Dixon, Warden, Central Prison (3×) also: Cited "see, e.g."
4th Cir. · 1989 · confidence medium
In a dictum to its opinion in State v. Robbins, 319 N.C. 465 , 356 S.E.2d 279, 296-97 (1987), the North Carolina Supreme Court suggested its agreement with Justice O'Connor’s statements that "Batson does not touch, indeed, it clearly reaffirms ... the ordinary rule that a prosecutor may exercise his peremptory strikes for any reason at all” and that a prosecutor may "take into account the concerns expressed about capital punishment by prospective jurors, or any other factor, in exercising peremptory challenges...." Brown v. North Carolina, 479 U.S. at 941 , 107 S.Ct. at 424 , 93 L.Ed.2d at…
cited Cited as authority (rule) State v. Santiago
Conn. App. Ct. · 1989 · confidence medium
Id., 424.” State v. Lizotte, 11 Conn. App. 11, 17 , 525 A.2d 971 , cert. denied, 204 Conn. 806 , 528 A.2d 1154 (1987).
examined Cited as authority (rule) State v. Fullwood (4×)
N.C. · 1988 · confidence medium
Brown v. North Carolina, 479 U.S. 940, 941-42 , 107 S.Ct. 423, 424-25 , 93 L.Ed.2d 373, 374 (1986) (O'Conner, J., concurring).
discussed Cited "see" State v. Correa (2×)
Conn. · 2021 · signal: see · confidence high
See id., 432–34.
examined Cited "see" State v. Apt (4×) also: Cited "see, e.g."
Conn. · 2015 · signal: see · confidence high
See id., 538–39. ‘‘[When] a reversal of a conviction is not a result of insufficiency of evi- dence but is predicated on . . . the reception of inad- missible evidence . . . a remand for a new trial is proper, and an appellate court should not review the remaining evidence to determine whether it is sufficient to sustain the conviction.’’ Id., 539.
examined Cited "see" State v. DeJesus (6×)
Conn. · 2008 · signal: see · confidence high
See State v. Gray, 200 Conn. 523, 539 , 512 A.2d 217 (concluding that defendant's confession was inadmissible but that retrial, as opposed to acquittal, was proper because evidence otherwise sufficient and, in light of exclusion of confession, state might have introduced evidence to replace it that otherwise would have been cumulative), cert. denied, 479 U.S. 940 , 107 S.Ct. 423 , 93 L.Ed.2d 373 (1986); accord State v. Carey, 228 Conn. 487, 496-98 , 636 A.2d 840 (1994) (concluding evidentiary error entitled defendant to new probation revocation hearing but not acquittal because, but for error,…
examined Cited "see" State v. Vallejo (3×)
Conn. App. Ct. · 2007 · signal: see · confidence high
See State v. Badgett, 200 Conn. 412, 433 , 512 A.2d 160 (“[fjaimess can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place” [internal quotation marks omitted]), cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
examined Cited "see" State v. Ortiz (3×)
Conn. App. Ct. · 2007 · signal: see · confidence high
See State v. Gray, 200 Conn. 523, 531 , 512 A.2d 217 , cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
cited Cited "see" State v. Smith
Conn. App. Ct. · 2004 · signal: see · confidence high
See id.
examined Cited "see" State v. Lopez (3×)
Conn. App. Ct. · 2003 · signal: see · confidence high
See State v. Badgett, 200 Conn. 412, 418 , 512 A.2d 160 , cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
discussed Cited "see" State v. Soares
Conn. App. Ct. · 2000 · signal: see · confidence high
See id., 420 (holding that attorney may waive defendant’s constitutional right to be informed of his right to jury trial).
discussed Cited "see" United States v. Gray (2×)
C.A.A.F. · 1999 · signal: see · confidence high
See Brown, 479 U.S. at 940-41 , 107 S.Ct. 423 (O’Connor, J., concurring on denial of certiorari); cf. id. at 942, 107 S.Ct. 423 (Brennan and Marshall, JJ., dissenting on denial of certiorari).
cited Cited "see" Goren v. New Vision International
7th Cir. · 1998 · signal: see · confidence high
See United States v. Neapolitan, 791 F.2d 489, 498 (7th Cir.), cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986).
cited Cited "see" Goren v. New Vision International, Inc.
7th Cir. · 1998 · signal: see · confidence high
See United States v. Neapolitan, 791 F.2d 489, 498 (7th Cir.), cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986).
cited Cited "see" United States v. Ashman
7th Cir. · 1993 · signal: see · confidence high
See United States v. Neapolitan, 791 F.2d 489, 495-96 (7th Cir.), cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986).
cited Cited "see" United States v. Ashman
7th Cir. · 1992 · signal: see · confidence high
See United States v. Neapolitan, 791 F.2d 489, 495-96 (7th Cir.), cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986).
examined Cited "see" State v. Nelson (3×)
Conn. · 1992 · signal: see · confidence high
See State v. Badgett, 200 Conn. 412, 418-20 , 512 A.2d 160 , cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
cited Cited "see" Dinan v. Board of Zoning Appeals
Conn. · 1991 · signal: see · confidence high
Ed. 2d 989 (1961); see Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 589 , 508 A.2d 735 , appeal dismissed, 479 U.S. 802 , 107 S. Ct. 43 , 93 L.
cited Cited "see" Davidson v. Wilson
D. Minnesota · 1991 · signal: see · confidence high
See United States v. Neapolitan, 791 F.2d 489, 499 (7th Cir.1986) (mere association with enterprise not enough), cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986).
examined Cited "see" Dugas v. Lumbermens Mutual Casualty Co. (3×)
Conn. · 1991 · signal: see · confidence high
See State v. Badgett, 200 Conn. 412 , 432 n.10, 512 A.2d 160 , cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
discussed Cited "see" United States v. Jorge Enrique Gonzalez, A/K/A George, Maurice Roundy, Michael Timothy Sweeton
11th Cir. · 1991 · signal: see · confidence high
See United States v. Neapolitan, 791 F.2d 489, 496 (7th Cir.), cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986) (Following Carter and collecting cases in other circuits doing same). 18 .
cited Cited "see" Rosauro Quintero v. Klaveness Ship Lines, Torvald Klaveness & Co. A/s v. Rosauro Quintero and Frank Sloan
5th Cir. · 1990 · signal: see · confidence high
See Kassapas v. Arkon Shipping Agency, 485 So.2d 565 (La.App. 5th Cir.), cert. denied, 488 So.2d 203 , cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986).
cited Cited "see" Segreti v. Lome
N.D. Ill. · 1990 · signal: see · confidence high
See United States v. Neapolitan, 791 F.2d 489, 498-499 (7th Cir.), cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986).
examined Cited "see" State v. Calovine (3×)
Conn. App. Ct. · 1990 · signal: see · confidence high
See United States v. Ross, supra. A warrantless search is lawful if “ ‘ “(1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” ’ ” (Emphasis in original.) State v. Badgett, 200 Conn. 412, 429 , 512 A.2d 160 , cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
discussed Cited "see" Dow Chemical Co. v. Castro Alfaro (2×)
Tex. · 1990 · signal: see · confidence high
See Kassapas v. Arkon Shipping Agency, Inc., 485 So.2d 565, 567 (La.App.1986), writ denied, 488 So.2d 203 (1986), cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986); Trahan v. Phoenix Ins.
discussed Cited "see" Craighead v. Hutton & Company, Inc.
6th Cir. · 1990 · signal: see · confidence high
See United States v. Neapolitan, 791 F.2d 489, 498-500 (7th Cir.), cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986); United States v. Sinito, 723 F.2d 1250, 1260 (6th Cir.1983), cert. denied, 469 U.S. 817 , 105 S.Ct. 86 , 83 L.Ed.2d 33 (1984).
discussed Cited "see" Craighead v. E.F. Hutton & Co.
6th Cir. · 1990 · signal: see · confidence high
See United States v. Neapolitan, 791 F.2d 489 , 498-500 (7th Cir.), cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986); United States v. Sinito, 723 F.2d 1250, 1260 (6th Cir. 1983), cert. denied, 469 U.S. 817 , 105 S.Ct. 86 , 83 L.Ed.2d 33 (1984).
discussed Cited "see" ca2 1989
2d Cir. · 1989 · signal: see · confidence high
See Investment Co. Inst. v. Clarke, 630 F.Supp. 593 , 594 n. 2 (D.Conn.), aff'd, 789 F.2d 175 (2d Cir.) (per curiam), cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986); see also Conover, 790 F.2d at 933 .
discussed Cited "see" Securities Industry Ass'n v. Clarke
2d Cir. · 1989 · signal: see · confidence high
See Investment Co. Inst. v. Clarke, 630 F.Supp. 593 , 594 n. 2 (D.Conn.), aff'd, 789 F.2d 175 (2d Cir.) (per curiam), cert. denied, 479 U.S. 940 , 107 S.Ct. 422 , 93 L.Ed.2d 372 (1986); see also Conover, 790 F.2d at 933 .
examined Cited "see" State v. Dukes (3×) also: Cited "see, e.g."
Conn. · 1988 · signal: see · confidence high
See State v. Badgett, 200 Conn. 412, 426-28 , 512 A.2d 160 , cert. denied, 479 Conn. 940 , 107 S. Ct. 473 , 93 L.
examined Cited "see" State v. Sanchez (3×)
Conn. · 1987 · signal: see · confidence high
See State v. Gray, 200 Conn. 523 , 512 A.2d 217 , cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
examined Cited "see, e.g." State v. Robles (3×)
Conn. · 2023 · signal: see, e.g. · confidence low
See, e.g., State v. Gray, 200 Conn. 523, 538 , 512 A.2d 217 , cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
examined Cited "see, e.g." State v. Robles (4×)
Conn. · 2023 · signal: see, e.g. · confidence low
See, e.g., State v. Gray, 200 Conn. 523 , 538–40, 512 A.2d 217 , cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
examined Cited "see, e.g." State v. Raynor (3×)
Conn. · 2021 · signal: see, e.g. · confidence low
See, e.g., State v. Badgett, 200 Conn. 412 , 433–34, 512 A.2d 160 [(remanding case for factual hearing to determine whether illegally discovered evidence was admissible under recently articulated inevitable discovery rule), cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
examined Cited "see, e.g." State v. Willoughby (3×)
Conn. App. Ct. · 2014 · signal: see, e.g. · confidence low
See, e.g., State v. Sward, 124 Conn. App. 546, 549 , 5 A.3d 965 (2010) (‘‘[f]or safety reasons, and because the defendant’s vehicle was partially parked in the right travel lane, [the officer] approached the defendant’s car from the passenger’s side’’). 11 In response to the defendant’s argument that Calouro improperly relied on the information he received as to the defendant’s involvement in a shoot- ing and drug sales to look for a reason to stop the motor vehicle, we note that ‘‘[i]t is well established that an officer’s subjective intent in pulling over a motorist i…
examined Cited "see, e.g." State v. Lage (3×)
Conn. App. Ct. · 2013 · signal: see also · confidence low
“By expressly mentioning and describing the defendant’s right to a trial, and by confirming that the defendant had access to adequate representation, the court substantially complied with Practice Book § 39-19 (5).” Id., 293; see also State v. Badgett, 200 Conn. 412, 419-20 , 512 A.2d 160 (concluding that defendant’s plea canvass, which described only his “ ‘right to trial’ ” without specifying jury trial, was constitutionally sufficient because trial court expressly mentioned waiver of right to trial and defendant had both prior experience with criminal proceedings and adequa…
examined Cited "see, e.g." State v. Ducharme (3×)
Conn. App. Ct. · 2012 · signal: see also · confidence low
While the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of the three core constitutional rights delineated in Boykin , it does not require that the trial court go beyond these “ ‘constitutional minima’.” State v. Lugo, 61 Conn. App. 855, 862 , 767 A.2d 1250 , cert. denied, 255 Conn. 955 , 772 A.2d 153 (2001); see also State v. Badgett, 200 Conn. 412, 418 , 512 A.2d 160 , cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
examined Cited "see, e.g." State v. Kendrick (3×)
Conn. App. Ct. · 2011 · signal: see also · confidence low
See State v. Holmes, 51 Conn. App. 217, 220 , 721 A.2d 1195 (1998) (‘[b]ecause a warrantless search is presumptively invalid, the state has the burden of affirmatively demonstrating a recognized exception to the warrant requirement’), cert. denied, 248 Conn. 904 , 731 A.2d 309 (1999); see also State v. Badgett, 200 Conn. 412, 423-24 , 512 A.2d 160 , cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
examined Cited "see, e.g." State v. Sanseverino (3×)
Conn. · 2008 · signal: see also · confidence low
The appropriate analysis, according to Lockhart , for reviewing a claim of insufficiency of evidence when it arises in conjunction *653 with a claim that evidence improperly was admitted is to “consider all of the evidence admitted by the trial court in deciding whether retrial is permissible . . . .” Id., 41 ; see also State v. Gray, 200 Conn. 523, 538 , 512 A.2d 217 (adopting same approach pre-Lockhart'), cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
examined Cited "see, e.g." State v. Nash (3×)
Conn. · 2006 · signal: see also · confidence low
See, e.g., State v. Aviles, 277 Conn. 281, 292 , 891 A.2d 935 (2006); see also State v. Badgett, 200 Conn. 412, 424 , 512 A.2d 160 (1986) (“[t]hese exceptions ‘have been jealously and carefully drawn’ . . . and the burden is on the state to establish the exception” [citation omitted]), cert. denied, 479 U.S. 940 , 107 S. Ct. 423 , 93 L.
David J. Brown
v.
North Carolina
86-5234.
Supreme Court of the United States.
Nov 3, 1986.
479 U.S. 940
O'Connor, Brennan, Marshall.
Cited by 226 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 67%
Citer courts: New Mexico Court of Appeals (1)
Reporter's Syllabus — editorial summary, not part of the Court's opinion

On petition for writ of certiorari to the Supreme Court of North Carolina.

The petition for a writ of certiorari is denied.

Justice O'CONNOR, concurring.

Lead Opinion

Sup. Ct. N. C. Certiorari denied.

Concurrence

Justice O’Connor,

concurring.

I write briefly in support of the Court’s denial of the petition for certiorari in this case, and to respond to Justice Brennan’s suggestion that the limits on the prosecutor’s right to peremptorily challenge jurors found in Batson v. Kentucky, 476 U. S. 79[*941] (1986), apply outside the context of racial discrimination forbidden by the Equal Protection Clause. Batson does not touch, indeed, it clearly reaffirms, id., at 89, the ordinary rule that a prosecutor may exercise his peremptory strikes for any reason at all. Batson, in my view, depends upon this Nation’s profound commitment to the ideal of racial equality, a commitment that refuses to permit the State to act on the premise that racial differences matter. It is central to Batson that a “person’s race simply ‘is unrelated to his fitness as a juror.’” Id., at 87 (citation omitted).

There is no basis for declaring that a juror’s attitudes towards the death penalty are similarly irrelevant to the outcome of a capital sentencing proceeding. Indeed, Witherspoon v. Illinois, 391 U. S. 510 (1968), upon which Justice Brennan’s dissent so heavily relies, itself recognizes the relevance of this attitudinal factor. Categorical exclusion of jurors with moral qualms over capital punishment is forbidden precisely because such a practice would produce “a jury uncommonly willing to condemn a man to die.” Id., at 521.

Moreover, Justice Brennan’s dissent ignores a fundamental distinction between peremptory challenges of jurors and challenges for cause. Challenges for cause permit the categorical and unlimited exclusion of jurors exhibiting an inability to serve fairly and impartially in the case to be tried, as noted in Wainwright v. Witt, 469 U. S. 412 (1985). In Witherspoon, the Court held that the Constitution does not tolerate such a categorical exclusion of jurors who merely express moral scruples about or general objections to capital punishment unless it would “‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’” Wainwright v. Witt, supra, at 424 (citation omitted).

Peremptory challenges are limited in number. Each party, the prosecutor, and the defense counsel, must balance a host of considerations in deciding which jurors should be peremptorily excused. Permitting prosecutors to take into account the concerns expressed about capital punishment by prospective jurors, or any other factor, in exercising peremptory challenges simply does not implicate the concerns expressed in Witherspoon.

We ought not delude ourselves that the deep faith that race should never be relevant has completely triumphed over the painful social reality that, sometimes, it may be. That the Court will not tolerate prosecutors’ racially discriminatory use of the pe[*942] remptory challenge, in effect, is a special rule of relevance, a statement about what this Nation stands for, rather than a statement of fact. In my view, that special rule is a product of the unique history of racial discrimination in this country; it should not be divorced from that context. Outside the uniquely sensitive area of race the ordinary rule that a prosecutor may strike a juror without giving any reason applies. Because a juror’s attitudes towards the death penalty may be relevant to how the juror judges, while, as a matter of law, his race is not, this case is not like Batson.

Dissent

Justice Brennan, with whom Justice Marshall joins,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the decision below insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting). However, even if I believed that the death penalty could be imposed constitutionally under certain circumstances, I nevertheless would grant certiorari because the petitioner presents strong evidence that the State used its peremptory challenges in this case to exclude jurors that it was forbidden to excuse for cause under Witherspoon v. Illinois, 391 U. S. 510 (1968).

In Witherspoon, this Court held that, in a capital case, the prosecution may not exclude for cause those jurors who indicate that they have scruples about the death penalty, but who nonetheless state that such beliefs would not prevent them from performing their duties as jurors according to law. Exclusion of such jurors, we said, denies a capital defendant the right to sentencing by an impartial jury that is representative of the community, for it “pro-ducéis] a jury uncommonly willing to condemn a man to die.” Id., at 521. We underscored the importance of this right in Adams v. Texas, 448 U. S. 38 (1980), which held unconstitutional the exclusion of jurors who acknowledged that their concerns about capital punishment might affect their ability to find facts that would lead to its automatic imposition. Texas could not, we said, bar jurors who stated that they would honestly find the relevant facts if convinced of their existence beyond a reasonable doubt,

“yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will[*943] be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law.” Id., at 50.

The petitioner in the case before us, David J. Brown, was convicted of the first-degree murder of two women and given two death sentences. At voir dire, the prosecutor had sought to determine not merely if prospective jurors had any scruples about the death penalty that might impair their performance, but if they had any scruples about it at all. The prosecutor was remarkably candid about this objective in addressing the venire at the start of voir dire:

“ “We want to know if you do in fact believe in capital punishment, not wavering. We want to know at the outset, that is when we approve you as a juror, if we do, that you surely do believe in capital punishment in some cases, and that you can, if necessary, make a decision that would involve capital punishment.’” Pet. for Cert. 10.

As the voir dire reveals, the prosecutor diligently pursued his goal of seating only those jurors rigidly committed to the death penalty:

“Q.: Mr. Caldwell, how do you feel about capital punishment? Are you for it or against it?
“A.: I am for it.
“Q.: I didn’t understand you.
“A.: I said I’m for it.
“Q.: How long have [you] been in favor of capital punishment in some cases, Mr. Caldwell?
“A.: All my life, every time I hear tale of something like that, about all my life, I guess.
“Q.: That’s what I wanted to hear, Mr. Caldwell.
[[Image here]]
“Q.: Mrs. Pope, do you know your mind to the extent of saying whether or not you believe in capital punishment?
“A.: I do.
“Q.: Have all of your adult life?
[*944] “A.: Yes, sir.
“Q.: And if ultimately you are called upon after a proper instruction by the Judge to carefully consider what should happen to, to determine life or death, that wouldn’t bother you unduly, will it?
“A.: No, sir.” Id., at 7, 9-10.

In another exchange, after juror Williams stated that he believed in capital punishment, the prosecutor continued to question him to establish that he had the “‘strength and fortitude’” to render a death verdict “without ‘any doubt.’” Id., at 10.

Those jurors who indicated the slightest uncertainty about the death penalty were excused by peremptory challenge, without inquiry into whether their convictions would render them incapable of performing their duties as jurors:

“Q.: Mrs. Beaver, having sat here for some several minutes in this courtroom today, you know what we are here for?
“A.: Yes.
“Q.: Having thoughts about capital punishment, at least I would assume here today, and no doubt having thought about it in the past, do you know your mind about that question? “A.: I’m afraid I don’t.
“Q.: Afraid you don’t?
“A.: No.
“[Prosecutor:] The State will excuse Mrs. Beaver with our thanks.” Id., at 9.

The State concedes that it could not have excused for cause those jurors failing the prosecutor’s litmus test. It maintains, however, that since it used peremptory challenges to accomplish this end, its conduct is immune from scrutiny. The State reads our recent decision in Batson v. Kentucky, 476 U. S. 79 (1986), as significant only in that it proscribes racially discriminatory peremptory challenges. It insists that, since the challenges were exercised in this case in a racially neutral manner, they are free from constitutional infirmity.

The implication of the State’s position is that it is free to use its peremptory challenges to violate any constitutional command other than the Equal Protection Clause. The State, however, misses the wider significance of Batson: that the broad discretion[*945] afforded prosecutors in the exercise of peremptory challenges may not be abused to accomplish any unconstitutional end. In Bat-son, we said that “counsel’s effort to obtain possibly relevant information about prospective jurors is to be distinguished from the practice at issue here.” Id., at 89, n. 12 (emphasis added).

Justice O’Connor’s concurrence observes that, as an unfortunate matter of fact, race may be relevant in that it may actually influence a juror’s decision. The concurrence correctly notes that such factual relevance is insufficient to justify the exercise of a peremptory challenge on the basis of a juror’s race, because race has been deemed irrelevant as a matter of law. The concurrence, however, fails to recognize that precisely the same situation obtains with respect to scruples about the death penalty. Such scruples may be relevant as a matter oí fact. Nonetheless, that is insufficient to justify the use of peremptory challenges to exclude jurors with such scruples, for Witherspoon and Adams make clear that this characteristic is irrelevant as a matter of law. It does not minimize the tragic history of race discrimination in this country to insist that we enforce the Witherspoon proscription just as faithfully as that forbidding reliance on race, for we may not pick and choose which constitutional rights we will and will not vindicate in monitoring the jury selection process.

Peremptory challenges may be used for reasons that may not comport completely with rational analysis, or that may resist coherent articulation. Such latitude has for practical reasons required a presumption that these challenges are exercised in a constitutionally responsible fashion. As Batson makes clear, however, that presumption is rebuttable. In this case, the Court is presented with evidence from the voir dire that plainly indicates that the prosecutor used his peremptory challenges to obtain the “hanging jury,” Witherspoon, 391 U. S., at 523, that he could not obtain through challenges for cause. We therefore cannot maintain the usual presumption that these challenges were properly used.

Agents of the State enjoy considerable discretion in performing certain functions within the criminal justice system. With great discretion, however, comes great responsibility. When a court has evidence that the State has not lived up to that responsibility, its refusal to intervene converts discretion into a license for constitutional violation. For this reason, I would grant the petition for certiorari in this case.