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The Supreme Court's jurisprudence on criminal juries has overlooked an important piece of history. This is most notable in the context of its jury discrimination jurisprudence over the past twenty years. In Batson v. Kentucky, the Court held that the Equal Protection Clause prohibits a prosecutor from using his peremptory strikes against a potential juror on the basis of race. Later, the Court extended Batson to a variety of related contexts. In Powers v. Ohio, the Court held that Batson applied even when the defendant and the juror were of different races, holding that a white defendant could challenge the discriminatory striking of black jurors. The Equal Protection Clause prohibits discrimination only by state actors, but in Edmonson v. Leesville Concrete Co., the Court held that private civil litigants were to be regarded as state actors when they used their peremptory strikes. The Court went one step further in Georgia v. McCollum, holding that even criminal defendants were state actors when exercising peremptories.

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