U.S. Supreme Court

HAM v. SOUTH CAROLINA, 409 U.S. 524 (1973)

Decided January 17, 1973

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner was convicted in the South Carolina trial court of the possession of marihuana in violation of state law. He was sentenced to 18 months' confinement, and on appeal his conviction was affirmed by a divided  South Carolina Supreme Court. We granted certiorari limited to the question of whether the trial judge's refusal to examine jurors on voir dire as to possible prejudice against petitioner violated the latter's federal constitutional rights. 

Petitioner is a young, bearded Negro who has lived most of his life in Florence County, South Carolina. He appears to have been well known locally for his work in such civil rights activities as the Southern Christian Leadership Conference and the Bi-Racial Committee of the City of Florence. He has never previously been convicted of a crime. His basic defense at the trial was that law enforcement officers were "out to get him" because of his civil rights activities, and that he had been framed on the drug charge.

Prior to the trial judge's voir dire examination of prospective jurors, petitioner's counsel requested the judge to ask jurors four questions relating to possible prejudice against petitioner. The first two questions sought to elicit any possible racial prejudice against Negroes; the third question related to possible prejudice against beards; and the fourth dealt with pretrial publicity relating to the drug problem. The trial judge, while putting to the prospective jurors three general questions as to bias, prejudice, or partiality that are specified in the South Carolina statutes, declined to ask any of the four questions posed by petitioner.

The dissenting justices in the Supreme Court of South Carolina thought that this Court's decision in Aldridge v. United States, 283 U.S. 308 (1931), was binding on the State. There a Negro who was being tried for the murder of a white policeman requested that prospective jurors be asked whether they entertained any racial prejudice. This Court reversed the judgment of conviction because of the trial judge's refusal to make such an inquiry. Mr. Chief Justice Hughes, writing for the Court, stated that the "essential demands of fairness" required the trial judge under the circumstances of that case to interrogate the veniremen with respect to racial prejudice upon the request of counsel for a Negro Criminal defendant. 

The Court's opinion relied upon a number of state court holdings throughout the country to the same effect, but it was not expressly grounded upon any constitutional requirement. Since one of the purposes of the Due Process Clause of the Fourteenth Amendment is to insure these "essential demands of fairness," and since a principal purpose of the adoption of the Fourteenth Amendment was to prohibit the States from invidiously discriminating on the basis of race, we think that the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice. South Carolina law permits challenges for cause, and authorizes the trial judge to conduct voir dire examination of potential jurors. The State having created this statutory framework for the selection of juries, the essential fairness required by the Due Process Clause of the Fourteenth Amendment requires that under the facts shown by this record the petitioner be permitted to have the jurors interrogated on the issue of racial bias. 

We agree with the dissenting justices of the Supreme Court of South Carolina that the trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner. The Court in Aldridge was at pains to point out, in a context where its authority within the federal system of courts allows a good deal closer supervision than does the Fourteenth Amendment, that the trial court "had a broad discretion as to the questions to be asked." The discretion as to form and number of questions permitted by the Due Process Clause of the Fourteenth Amendment is at least as broad. In this context, either of the brief, general questions urged by the petitioner would appear sufficient to focus the attention of prospective jurors on any racial prejudice they might entertain.

The third of petitioner's proposed questions was addressed to the fact that he wore a beard. While we cannot say that prejudice against people with beards might not have been harbored by one or more of the potential jurors in this case, this is the beginning and not the end of the inquiry as to whether the Fourteenth Amendment required the trial judge to interrogate the prospective jurors about such possible prejudice. Given the traditionally broad discretion accorded to the trial judge in conducting voir dire, and our inability to constitutionally distinguish possible prejudice against beards from a host of other possible similar prejudices, we do not believe the petitioner's constitutional rights were violated when the trial judge refused to put this question. The inquiry as to racial prejudice derives its constitutional stature from the firmly established precedent of Aldridge and from a principal purpose as well as from the language of those who adopted the Fourteenth Amendment. The trial judge's refusal to inquire as to particular bias against beards, after his inquiries as to bias in general, does not reach the level of a constitutional violation....


[ Footnote 2 ] The four questions sought to be asked are the following:

[ Footnote 3 ] S. C. Code 38-202 (1962). The three questions asked of all prospective jurors in this case were, in substance, the following:

MR. JUSTICE DOUGLAS, concurring in part and dissenting in part.

I concur in that portion of the majority's opinion that holds that the trial judge was constitutionally compelled to inquire into the possibility of racial prejudice on voir dire. I think, however, that it was an abuse of discretion for the trial judge to preclude the defendant from an inquiry by which prospective jurors' prejudice to hair growth could have been explored.

It is unquestioned that a defendant has the constitutional right to a trial by a neutral and impartial jury. In Aldridge v. United States, this Court made it clear that voir dire aimed at disclosing "prejudices of a serious character" must be allowed.

Prejudices involving hair growth are unquestionably of a "serious character." Nothing is more indicative of the importance currently being attached to hair growth by the general populace than the barrage of cases reaching the courts evidencing the attempt by one segment of society officially to control the plumage of another. On the issue of a student's right to wear long hair alone there are well over 50 reported cases.

The prejudices invoked by the mere sight of non-conventional hair growth are deeply felt. Hair growth is symbolic to many of rebellion against traditional society and disapproval of the way the current power structure handles social problems. Taken as an affirmative declaration of an individual's commitment to a change in social values, nonconventional hair growth may become a very real personal threat to those who support the status quo. For those people, nonconventional hair growth symbolizes an undesirable lifestyle characterized by unreliability, dishonesty, lack of moral values, communal ("communist") tendencies, and the assumption of drug use. If the defendant, especially one being prosecuted for the illegal use of drugs, is not allowed even to make the most minimal inquiry to expose such prejudices, can it be expected that he will receive a fair trial?

Since hair growth is an outward manifestation by which many people determine whether to apply deep-rooted prejudices to an individual, to deny a defendant the right to examine this aspect of a prospective juror's personality is to deny him his most effective means of voir dire examination.

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 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....

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 relevance 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 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."

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