MADDOX, Justice.

This petition for certiorari presents a case of first impression involving the State's use of its peremptory challenges to strike 6 of 7 blacks from the jury venire. The specific question presented is whether the State's explanations of the reasons for its exercise of the challenges were racially "neutral." In determining this question, we must review, in detail, the holding of the Supreme Court of the United States in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and our holding in Ex parte Jackson, 516 So.2d 768 (Ala. 1986).

Because the Supreme Court of the United States did not "formulate particular procedures to be followed," and did not "instruct the [state and federal] courts how best to implement [the Batson] holding," and because the trial judge, in this case, did not have the benefit of any guidelines formulated by the Supreme Court of the United States in Batson, or by this Court in the case of Jackson, we do not, at this time, affirm or reverse the judgment of the Court of Criminal Appeals, but we remand the case to the Court of Criminal Appeals, with directions to remand it to the trial court for a new determination of the issue raised by the petitioner, based upon the guidelines we delineate in this opinion, and based upon the rule of law contained in Jackson.

FACTS

The facts of this case are very ably set out in the opinion of the Court of Criminal Appeals, and while we could make reference to that opinion for the statement of facts, we believe that for a better presentation of the issue in this case, we should, and do, recite the facts, as found by the Court of Criminal Appeals in Branch v. State, 526 So.2d 605 (Ala.Crim.App. 1986):

"The appellant, Preston Branch, was indicted and convicted for the offense of murder, as proscribed by § 13A-6-2, Code of Alabama 1975. He was subsequently sentenced to imprisonment for life.

"As his sole issue, Branch, who is black, contends that the trial court denied his motion for mistrial or for new trial on the assertion that the prosecutors' use of their peremptory strikes to remove members of his racial group from serving on the petit jury violated the Equal Protection Clause. We review the trial court's ruling with the guidelines of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 [ 90 L.Ed.2d 69] (1986), which was released just five days prior to Branch's trial. In Batson, the Supreme Court substantially changed the evidentiary burden, previously set forth in Swain v. Alabama, 380 U.S. 202 [ 85 S.Ct. 824, 13 L.Ed.2d 759] (1965), placed on a criminal defendant who asserts an equal protection claim based on the prosecutor's alleged racially discriminatory use of peremptory challenges. Fleming v. Kemp, 794 F.2d 1478, 1483 (11th Cir. 1986).

"We must apply the principles of Batson to the particular circumstances of this case, which are as follows: On May 6, 1986, after voir dire examination of the petit jury venire and after the prosecution exercised its first three strikes to strike blacks, Branch's counsel interrupted,

" 'I believe based on my experience with this government prosecutor, Mr. Nelson, he had a record of using his preemptory [sic] challenges to rid the venire of blacks.

" 'I had one three weeks ago, he used all seven strikes to eliminate blacks. And in light of Batson v. Kentucky, I believe the defendant is being denied Fifth, Fourteenth and Sixth Amendment rights to right of a fair trial by this prosecutor, systematically exclusion of black people.'

"The trial court responded, 'Well, I have tried many cases with the two prosecutors, I can't agree that in my experience it is systematically excluding blacks.' In addition, the court required the prosecutors to make note of their reasons for their strikes and, if a conviction resulted from the trial, Branch's contention would be resolved in a motion for new trial. Defense counsel made no objection to this procedural arrangement.

"Immediately after the jury rendered its verdict on May 8, defense counsel moved for a mistrial. Thereafter, the court examined the jury selection within the context of Batson. The parties stipulated that the prosecution exercised six of its seven strikes to exclude six of the seven blacks included on the venire. Then, the two prosecutors gave specific reasons for striking each particular venire person, which are summarized, as follows:

" 'HARRIS: One of the prosecutors participated in a "bust" five months before, at a home close to Harris's residence, and saw Harris during the "bust"; he could not recall Harris's relationship to the person arrested, so he thought it best to strike him. Moreover, Harris was similar in age and physical appearance to Branch.

" 'MAYNOR: As an employee of Gold Kist, Maynor was not desirable as a juror because it is the prosecutors' general experience that Gold Kist's employees have not been attentive as jurors and a number of employees are being investigated for a variety of crimes.

" 'MEADOWS: Meadows's background as an unemployed, former student was not attractive, and she "appeared . . . to have kind of a dumbfounded or bewildered look on her face, as if she didn't know why she was here, or what she was supposed to do."

" 'MONTGOMERY: Being a scientist, Montgomery's presence on the jury would have put too great a burden on the prosecution, considering the background of the case and "knowing the problems with one hundred percent mathematical aspects of a case like this"; the prosecutors did not want a "scientific application in the decision."

" 'PARMER: Parmer's general appearance was unkempt. Moreover, he worked in "credit management," and because the prosecutors were not able to question him about his specific job, they deemed it too risky to leave Parmer on the jury. Parmer appeared to be a gruff collector and the prosecution did not want a juror who would be at odds with anyone else on the jury.

" 'KELLEY: As a single female who was about the same age as Branch, Kelley "might feel as though she were a sister, or that type thing and have some pity on the person." Moreover, Kelley was observed frowning and the prosecutors did not want, on the jury, a person who was in a bad mood. Finally, her response to defense counsel was much more favorable than her response to the prosecutors.'

"After hearing these explanations, the court noted that it considered the prosecutors to be credible and that it trusted them when they stated things in their capacity of court officers. The court then reserved ruling on Branch's motion for mistrial.

"On May 23, another hearing was held on the Batson contention, as presented in Branch's 'motion for new trial or for mistrial.' After the court heard further argument, the court denied Branch's motion."

Because of our in-depth treatment of this issue, we quote additional portions of the record, which contains a transcript of what occurred relating to the peremptory challenge issue:

"MR. TURBERVILLE [defense counsel]: [ Batson was] not talking about striking all blacks. [It talks] about striking any black member from jury duty because of race.

". . . Batson very clearly says that [the State] must give a neutral reason or believable reason for striking. They used their first six strikes to strike blacks . . . even an insurance adjustor, conservative-type biochemistry person, an old woman that —

"THE COURT: Before we get into the facts, [Mr. Turberville], read the third paragraph [from Batson]. . . . I think that is very instructive.

"MR. TURBERVILLE (reading): 'A defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. The prosecutor may not rebut a prima facie showing by stating that he challenged the jurors on the assumption that they would be partial to the defendant because of their shared race or by affirming his good faith in individual selections.'

"Judge, I believe that I met that test. . . . We pointed out it was a black defendant. I pointed out that their first three strikes had been black. I pointed out that just three weeks or so ago, I had a case with Mr. Rod Nelson where he used all of his peremptory strikes to eliminate blacks when it was a black defendant.

"THE COURT: All right. Out of perhaps more caution than anything else, I am going to require you State lawyers to explain why you selected these persons for peremptory strikes.

"MR. TURBERVILLE: Judge, may I make a motion here also?

"THE COURT: Yes.

"MR. TURBERVILLE: I think this is kind of like locking the barn door after the cows are out. Batson says that once I make that showing, and I did make that showing before the trial even started, during the selection of the jury and I asked you to do something about it then, I asked you to stop it. And I also objected after each additional black person was eliminated.

"I think that we have gone too far, and I believe a mistrial is in order. And anything that they do, knowing these — you know, three days that they were going to have to do this, Judge, — it gives them an opportunity to go ahead and come up with neutral reasons, which they didn't have at the time they struck them, Judge.

"It is apparent to all with any common sense whatsoever, that they were striking these people purely because of their race. . . .

"THE COURT: How was I to know that the next three strikes would be black persons?

"MR. TURBERVILLE: I objected each time, your Honor. . . .

". . .

"MR. NELSON [counsel for State]: Your Honor, we just want to state for the record that at the time that we had this conference in your office, that we stated for the record, and we want to state again, that none of our strikes were based on any racial prejudice, or none of the strikes were based on racial reasons.

"What we would like to do at this time, then, is state for the record the reason we had then, and it's the same reason we have now. We haven't done any additional research about these people. These are the reasons we had at the time, we wrote them down pursuant to your request that we should. And we would like to each give our reasons. I will give a reason first and then [Mr. Wallace] will for each person.

"I believe our first strike was 122, Mr. Harris. Mr. Harris was from East Thomas. I personally was on a bust about five months ago at a home close by Harris. In fact, I think on that occasion, Mr. Harris saw me and I saw him late one evening out in that area, part of town, East Thomas, and I thought that I recognized him. And because I didn't know or could not recall his involvement at that time having seen him, whether he was the brother or whether he was a relative of the person that we busted for the drugs, I felt it best that we strike him.

"MR. WALLACE [counsel for State]: As to Mr. Harris, your Honor, I agreed with Mr. Nelson that we should strike him. The reason I had marked on my sheet was that he was — he appeared to me to be near in age and overall appearance to the defendant, not counting the fact that they were both black.

". . .

"MR. NELSON: 194 was our next strike, Mrs. Maynor. Mrs. Maynor works for Gold Kist. And my general experience has been that those people coming from that company, for whatever reason, do not make good jurors. And they — in fact, it has been my experience in the past, I have had several that have worked at Gold Kist that I have left on, and they have not been attentive [and] all of them have not been black.

"MR. WALLACE: Judge, as to Maynor, I had already marked on my sheet and agreed with Mr. Nelson that because of the employment at Gold Kist, that this juror should be struck. It has been my experience that I have seen a number of investigations where persons who were employed at Gold Kist are being investigated for a variety of different crimes. And I did not want somebody from that work background on my jury.

"MR. NELSON: Our next strike was 201, Mrs. Meadows. Mrs. Meadows had been a student and was now unemployed and [I] felt like that since she had been in school and now she was unemployed, that that was a risk to leave her on. We didn't feel like we wanted someone with that particular type background; student, and being unable to get a job.

"MR. WALLACE: As to Meadows, I agreed with Mr. Nelson that Meadows should be struck, because in my personal observation of Meadows during voir dire, Meadows appeared to me to have kind of a dumbfounded or bewildered look on her face, as if she didn't know why she was here, or what she was supposed to do.

"MR. NELSON: 204 was our next strike, Mr. Montgomery. Mr. Montgomery was a scientist, knowing the background of this case, and knowing the problems with one hundred per cent mathematical aspects of a case like this, we did not feel like that it would be — or I did not feel like it would be appropriate to leave someone who may have a tendency to measure this in a scientific way; and felt like that that [sic] would have resulted in too great a burden for us. So, we struck him.

". . .

"MR. WALLACE: 204, Montgomery. As to Mr. Montgomery, I agreed with Mr. Nelson that he should be struck for that very same reason, in that he is a scientist, and we didn't want a scientific application in the decision of this case.

"MR. NELSON: Our next strike was Number 218, Mr. Parmer. Mr. Parmer worked with a credit — involved in credit management. And we felt like, first of all, his general appearance to begin with was unkempt, he was not neat. And next, his background of dealing in credit, it has been my experience — and there again, without the ability to go into specifically his background of what area of credit he was involved in, whether it was the application, management of people coming in to him for credit, or what area, I thought it was too risky to keep somebody on there with that type background, without being able to go into it. And if you go into it, then you embarrass a person, perhaps, to — so based on the fact of no other responses, and not really getting any more insight into background, I felt like it was too much of a risk.

"MR. WALLACE: As to Mr. Parmer, I agreed with Mr. Nelson that Mr. Parmer should be struck. Because to me, he had kind of a gruff, collector-type appearance, as opposed to credit management. And I didn't want a person on the jury who I thought was going to be at odds with anybody else on the jury.

"MR. NELSON: [Finally,] Ms. Kelley, 162. Ms. Kelley was single, and in my opinion, she fell into about the same age category as the defendant. And the possibility that if she did, and being single, that she might feel as though she were a sister, or that type thing and have some pity on the person. And I felt like she should be struck for that reason.

"MR. WALLACE: As to Kelley, I agreed with Mr. Nelson that Kelley should be struck, because the times that I observed Kelley, Kelley was frowning. Again, I didn't want a person in a bad mood on the jury.

"We should also point out that these are six of our strikes. The seventh strike was for Number 51, a man named Coughlin, who is a white man.

"MR. NELSON: Also, I would point out, [Mr. Wallace] reminded me, Ms. Kelley, throughout almost the entire time that I was asking questions — and this is going to get into some body language, your Honor, which we are entitled to look at and evaluate — she had her hands — she was totally closed to me. And in contrast, when [Mr. Turberville] was up asking questions, her arms were open and that is another part of it.

"Mr. Dan Turberville, the defense attorney, when he was up, she was open and answered questions a little bit more frankly; or even had a response. Didn't have any response to mine.

"THE COURT: All right. [Mr. Turberville], you have the floor.

"MR. TURBERVILLE: Judge, [i]f you believe that junk and if you uphold this jury, what you are saying to Batson [is that] the [Justices of the] Supreme Court wasted their time. [The State] can say any juror that holds his hands across his chest, or has his hands down, that represents closed and open.

". . . [I]f you are going to [accept] that, then that just gives the government prosecutors, who have been living a lie so long that they now believe that they have never done anything wrong as far as discriminating against blacks, a license to come in and give you some junk like they just gave you.

"They talk about the one person from East Thomas. Are we saying that if you live in East Thomas, you may live near a criminal; so therefore, you can't be on a jury? We know that the juror himself wasn't charged with a crime. You asked them if they had been charged with a crime and if they were convicted and so forth and so on. We asked them about relationship with the police and the District Attorney and so forth.

"You know, it would be so easy for this prosecutor or any prosecutor, to come in and say, 'I was out on a bust wherever, and I thought I might have seen that man, and I can't remember what his involvement may have been.' Judge, that is ridiculous.

"All right. We go to Gold Kist. And I think that the people at Gold Kist ought to know that they are not eligible for jury duty in the City of Birmingham, Jefferson County. This prosecutor has just said it, that they don't want people from Gold Kist to serve on juries. Now, he said that. And I hope they quote him in the newspaper. I hope it goes just like that, because that is what is in the record. We don't want Gold Kist people serving on juries. Virtually, everybody at Gold Kist, short [of] a few white supervisors just poor old people that just can't find anything else, are black. And I think you can take judicial notice of that if you want to.

"Talking about this lady that gave the different body English, Number 162. She is an insurance adjustor. Every defense attorney knows that one person you get off a jury, if you can, is an insurance adjustor. They are almost a hundred per cent prosecution oriented, and they know that.

". . .

"They eliminated one person because they had a frown on their face. You're going to give them — that can be a reason? Then forget about Batson, because all you have got to do is come in and say, 'I noticed that the juror had a frown on their face and looked like they had rather be somewhere else.' It is making a mockery of Batson.

"They have lived a lie too long, Judge. They believe it. Those two believe, and all these people down here believe, one hundred per cent, that we never strike blacks because they are black. And that is the biggest lie that I have ever seen in my lifetime. And it's a lie right here in this court, and you heard those answers, Judge. You heard them. And it is going to take courage to say, 'me and you have messed up, and this is the law in the United States of America now, and it was changed last week.'

"You heard him, Mr. Nelson, saying early, 'Why don't we follow the law that was in Alabama? We haven't got that opinion yet. Let's go by the law in Alabama.' That shows where he was coming from, Judge. We haven't got the opinion yet. We know under Swain we can do anything we want to, so we're going to do it.

"Judge, I did all I could at the start of this trial to stop that; to give this man a fair trial. And again, they left a person on that knew me, knew my partner, and on and on.

"THE COURT: The bankruptcy girl?

"MR. TURBERVILLE: Yes, sir, lawyer. And the one white they struck — let me say this — the one white that they struck was a person that made it quite clear that he didn't like police and he didn't like the D.A.; even his mother had been arrested on some false charge. And he hadn't got the District Attorney to do anything about [it]. So, they had to eliminate him. He obviously wasn't going to go for them, no matter what the circumstances.

"THE COURT: [Mr. Turberville], as always, I am not cutting you off, but I am impressed with your sincerity, but I can't help but to remark that these men, Nelson and Wallace, are court officers, just like you are. And they stand here, Wallace, especially, has been in here, I guess for two years. And I think they are credible persons. I trust these men when they tell me something as court officers.

". . .

"MR. TURBERVILLE: We're talking about the fact that — there were seven blacks. They used their first six strikes over my objection to eliminate blacks. The reasons they have brought in are so frivolous that they hinge [sic] on the ridiculous.

"Judge, what you are doing is giving them a license to just stomp on Batson. That is all it is, if you uphold this. That is what you are saying, come in, give me any excuse other than race, and there is not one D.A. in the country that will say, 'Judge, I eliminated him because he was black and the defendant was black.' He is going to say because he had his hands drawn, because he was frowning, because his clothes were messy." (Emphasis added.)

THE SCOPE OF THIS OPINION

In this opinion we will set forth our understanding of the Batson decision, and the procedures that we believe must be followed to implement it, the specific role of the trial judge in the process, and the scope of appellate review of the trial court's determination. In establishing these procedures, we will set forth the following: the history of the law in Alabama relating to the drawing, summoning, selection and empaneling of juries in criminal cases; the history of the development and use of peremptory challenges in Alabama; and the statutory procedure used for the selection of petit juries in criminal cases. We will also set forth the showing required by a defendant in order to raise a Batson challenge; the role of the trial judge in determining whether a sufficient showing has been made; the responsibility of the prosecutor to establish race neutral reasons if a prima facie case is made; and the role of the trial judge in determining, in each particular case, whether the prosecutor has satisfactorily shown that the state did not use its peremptory challenges to exclude persons from the petit jury on account of their race.

HISTORY OF THE DRAWING, SUMMONING, SELECTION, AND EMPANELING OF JURIES IN ALABAMA

Alabama has for many years statutorily regulated the procedures for drawing, summoning, selecting, and empaneling both grand and petit juries in criminal cases. See Title 12, Chapter 16, Code 1975, § 12-16-1 through § 12-16-233. Of particular significance, insofar as this particular case is concerned, is the procedure provided for by Code 1975, § 12-16-100:

"§ 12-16-100. Drawing, selection and empaneling of juries in criminal cases — Generally.

"(a) In every criminal case the jury shall be drawn, selected and empaneled as follows: Upon the trial by jury in the circuit courts of any person charged with a felony, including a capital felony, a misdemeanor, or violation, the court shall require a strike list or lists to be compiled from the names appearing on the master strike list as established in section 12-16-74. In compiling the list or lists, names of qualified jurors may be omitted on a nonselective basis. A strike list shall be furnished for the trial of any case at hand and a copy thereof given to all parties. The jurors whose names appear thereon shall be brought into open court, the case shall be called and in the presence of the district attorney and the defendant and his attorney, the jurors shall be examined on voir dire for the trial of the case at hand. After the conclusion of the voir dire examination and the removal from the strike list of the names of those jurors who were challenged or excused for good reason, the district attorney shall be required first to strike from the strike list the name of one juror, and the defendant shall strike one, and they shall continue to strike off names alternately until only 12 jurors remain on the strike list and these 12 jurors thus selected shall be the jury charged with the trial of the case. If any defendant shall refuse to exercise a strike to which he is entitled, then the judge presiding shall exercise that defendant's strike for him. The number of names appearing on the strike list upon commencement of striking, unless a lesser number is agreed to by the parties, shall not be less than 36 if the offense charged is a capital felony nor less than 24 if the offense charged is a felony not punished capitally nor less than 18 if the offense charged is a misdemeanor or violation. In the event the list of competent prospective jurors is reduced to fewer than the number required by this subsection, the court shall add prospective jurors in the manner prescribed in section 12-16-76. No special venire shall be ordered, drawn, or summoned for the trial of any person indicted for a capital felony.

"* * *

". . . (Acts 1919, No. 715, p. 1039; Code 1923, § 8641; Code 1940, T. 30, § 60; Acts 1981, No. 81-788, p. 1381, § 5; Acts 1982, No. 82-221, p. 267.)"

An alternate plan is authorized by the provisions of § 12-16-145 and § 12-16-146, and this Court's Advisory Committee on Criminal Procedure has recommended a procedure that substantially follows the procedures set forth in § 12-16-100. See Proposed Revision with Commentary, Alabama Rules of Criminal Procedure, January 1983, Rule 18.4.

Since the adoption by the State of a separate procedure for the selection of jurors in criminal cases, many attacks have been made on the procedure. The one which received the most attention, however, was Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Other challenges have centered around the unequal number of peremptory challenges given the state in some counties, but not in others, and several challenges were made involving individual jury lists, in which claims of racial discrimination were advanced.

In 1978, the Alabama legislature adopted Act No. 594, a comprehensive act which provided for the qualifications and selection of jurors, and which revamped the jury system in Alabama. With the adoption and implementation of this Act, the attacks upon the jury selection process, either by separate lawsuits, or in individual cases, significantly decreased. For a historical account of this Act, see O'Leary v. State, 417 So.2d 219 (Ala.Crim.App. 1981), aff'd, 417 So.2d 232 (Ala. 1982), cert. den., 463 U.S. 1206, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983).

Sections 1 and 2 of Act No. 594, now codified as Code 1975, § 12-16-55 and § 12-16-56, respectively, read as follows:

"§ 12-16-55. Declaration of policy.

"It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity, in accordance with this article, to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose. (Acts 1978, No. 594, p. 712, § 1.)

"* * *

"§ 12-16-56. Discrimination prohibited.

"A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin or economic status. (Acts 1978, No. 594, p. 712, § 2.)"

These two Code sections are significant when a trial court is faced with a Batson or Jackson challenge.

We believe that the Legislature intended, in adopting this public policy, that our trial juries should be selected from a list which contains a fair cross section of the area served by the court, and that any form of discrimination against a particular juror on account of race, color, religion, sex, national origin, or economic status is prohibited, and if liberally interpreted to apply to the State's use of peremptories, the state policy is not inconsistent with Batson or Jackson requirements.

In fact, in Jackson, this Court discussed the principles of Batson — citing both state and federal law — regarding the use of peremptory challenges by the state to exclude from jury service all blacks on the venire. This Court opined:

"The most compelling of the issues raised by Jackson is whether his equal protection rights were violated when the prosecution used its peremptory challenges to strike all ten of the prospective black jurors from the venire. The United States Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 [ 90 L.Ed.2d 69] (1986), changed a defendant's burden of proof on the issue of the prosecution's using peremptory challenges to systematically exclude blacks from serving on the jury. The much more stringent burden of Swain v. Alabama, 380 U.S. 202 [ 85 S.Ct. 824, 13 L.Ed.2d 759] (1965), was in effect at the time of defendant's trial, and the issue before us is whether a rule similar to the rule announced in Batson should be applied to this defendant's trial. We hold that a rule like the rule which the United States Supreme Court announced in Batson v. Kentucky, supra (that 'a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial,' 476 U.S. at 96, 106 S.Ct. at 1722-23), is to be applied to Jackson's trial."

In Jackson, this Court noted the criticism that had been leveled against the decision in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and noted that several state courts had found that their state constitutions required a lesser burden on a defendant to prove purposeful discrimination than that required by Swain. The Court cited the cases of State v. Neil, 457 So.2d 481 (Fla. 1984); People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739, (1981); State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct.App. 1980); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. den., 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). 516 So.2d at 771-772.

This Court, in Ex parte Jackson, specifically stated:

"We particularly note the holding of the Florida Supreme Court in Neil, supra:

" 'Article I, section 16 of the Florida Constitution guarantees the right to an impartial jury. The right to peremptory challenges is not of constitutional dimension. The primary purpose of peremptory challenges is to aid and assist in the selection of an impartial jury. It was not intended that such challenges be used solely as a scalpel to excise a distinct racial group from a representative cross-section of society. It was not intended that such challenges be used to encroach upon the constitutional guarantee of an impartial jury. As did the New York, California, and Massachusetts courts, we find that adhering to the Swain test of evaluating the peremptory challenges impedes, rather than furthers, article I, section 16's guarantee. We therefore hold that the test set out in Swain is no longer to be used by this state's courts when confronted with the allegedly discriminatory use of peremptory challenges.'

"457 So.2d at 486.

"Although we know that the United States Supreme Court has not yet ruled on whether Batson v. Kentucky is to be applied retroactively, this Court does not need to await revelation from the federal judiciary when our own state constitution also guarantees to a criminal defendant the equal protection of the laws. Sections 1, 6, and 22, Ala. Const. 1901, combine to guarantee equal protection of the laws. City of Hueytown v. Jiffy Chek Co., 342 So.2d 761 (Ala. 1977). Analysis of equal protection issues under the United States Constitution is equally applicable to those same issues under the Alabama Constitution. Jefferson County v. Braswell, 407 So.2d 115 (Ala. 1981).

"The doctrine of equal protection of the laws requires that the guarantee of trial by an impartial jury not be illusory. The defendant Jackson was under the Swain burden when he attempted to show the prosecution's alleged discriminatory use of its peremptory strikes. This was too great a burden. Our state constitution requires that Jackson be entitled to test the prosecution's use of its peremptory strikes under a rule similar to the one set forth in Batson v. Kentucky. . . ."

This Court then spelled out the procedure which must be followed once a prima facie showing is made by an accused:

"Once the defendant has made a prima facie case of purposeful discrimination, then the prosecution must come forward with valid non-racial reasons for its strikes. The Florida Supreme Court has given an illustration of the prosecution's burden:

" 'The reasons given in response to the court's inquiry need not be equivalent to those for a challenge for cause. If the party shows that the challenges were based on the particular case on trial, the parties or witnesses, or characteristics of the challenged persons other than race, then the inquiry should end and jury selection should continue. On the other hand, if the party has actually been challenging prospective jurors solely on the basis of race, then the court should dismiss that jury pool and start voir dire over with a new pool.'

" Neil, 457 So.2d at 487.

"No merely whimsical or fanciful reason will suffice as an adequate explanation. In light of the circumstances of the case, the trial court must use its discretion in determining whether the prosecutor's reasons are adequate." (Emphasis added.)

In Jackson, the prosecutor was not required to come forward with race-neutral reasons. In this case, the trial court did, "[o]ut of perhaps more caution than anything else," require the State to explain why the particular persons were selected for peremptory strikes, so this case is in a different procedural posture. In Jackson, the case was remanded to allow the State to present race-neutral reasons, if it could. The mandate of Jackson was not available to the trial court in this case at the time it found that the State had met its burden; therefore, in the interest of justice, we are of the opinion that the trial judge should be given another opportunity to examine his findings in light of the requirements of Batson and Jackson.

Based upon this record, we could reverse this case, as some state courts have reversed similar cases, and order a new trial, or we could affirm the judgment on the ground that the state's race-neutral reasons were sufficient. We believe, however, that justice requires that we remand the case to give the trial court an opportunity to review again the sufficiency of the state's race-neutral reasons, under the guidelines we set out in this opinion.

THE BATSON AND JACKSON RULES

What exactly do Batson and Jackson hold? Our interpretation of the opinions in Batson and Jackson shows that they, at least, hold as follows:

(1) The Swain rule, which allowed prosecutors to use their peremptory challenges to exclude members of a cognizable racial group from jury service, has been changed.

(2) Peremptory challenges are not entirely eliminated, but prosecutors are restricted in their use, and if prosecutors' use of them is challenged and a prima facie case of discrimination is shown, prosecutors must be able to give neutral reasons for their use.

(3) Peremptory challenges may be, and "unfortunately [have] been used to discriminate against black jurors." Batson, 476 U.S. at 99, 106 S.Ct. at 1724 (emphasis added).

(4) The State's privilege to strike individual jurors through peremptory challenges is subject to the commands of the Fourteenth Amendment, Batson, and Sections 1, 6, and 22 of the Alabama Constitution of 1901. Jackson.

(5) Racial discrimination in the selection of jurors harms not only the accused, whose life and liberty they are summoned to try, but could also discriminate against the excluded juror, thereby undermining "public respect for our criminal justice system," Batson, 106 S.Ct. at 1724, and could violate the public policy of this state that each person called is entitled to be "considered" for service. Code 1975, § 12-16-55.

(6) Both the Alabama and Federal Constitutions prohibit a prosecutor from challenging a potential juror solely on account of his or her race, or on the assumption that black jurors, as a cognizable group, will be unable to impartially consider a case.

(7) It is the duty of the trial court to determine, first, whether the defendant has made a requisite showing of the racially discriminatory use of peremptory challenges, and to further determine whether the "prosecutor [has] articulate[d] a neutral explanation related to the particular case to be tried." (Emphasis added.) Batson, 476 U.S. at 98, 106 S.Ct. at 1723. "No mere whimsical or fanciful reason will suffice." (Emphasis added.) Jackson, 516 So.2d at 772 (Ala. 1986).

IMPLEMENTATION OF BATSON AND JACKSON

We now set out some general guidelines for lower courts to follow until this Court, under its rule-making power, can adopt a more specific rule of procedure, or until the Legislature adopts a procedure that would comport with the State and Federal Constitutions. This inquiry should become a part of the trial record so that there will be a sufficient record for appellate review. People v. Wheeler, 22 Cal.3d 258, 280, 583 P.2d 748, 764, 148 Cal.Rptr. 890, 905 (1978); see generally, Jackson, supra.

The burden of persuasion is initially on the party alleging discriminatory use of peremptory challenges to establish a prima facie case of discrimination. In determining whether there is a prima facie case, the court is to consider "all relevant circumstances" which could lead to an inference of discrimination. See Batson, 476 U.S. at 93, 106 S.Ct. at 1721, citing Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976). The following are illustrative of the types of evidence that can be used to raise the inference of discrimination:

1. Evidence that the "jurors in question share[d] only this one characteristic — their membership in the group — and that in all other respects they [were] as heterogeneous as the community as a whole." Wheeler, 22 Cal.3d at 280, 583 P.2d at 764, 148 Cal.Rptr. at 905. For instance "it may be significant that the persons challenged, although all black, include both men and women and are a variety of ages, occupations, and social or economic conditions," Wheeler, 22 Cal.3d at 280, 583 P.2d at 764, 148 Cal.Rptr. at 905, n. 27, indicating that race was the deciding factor.

2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.

3. The past conduct of the state's attorney in using peremptory challenges to strike all blacks from the jury venire. Swain, supra.

4. The type and manner of the state's attorney's questions and statements during voir dire, including nothing more than desultory voir dire. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Wheeler, 22 Cal.3d at 281, 583 P.2d at 764, 148 Cal.Rptr. at 905.

5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions. Slappy v. State, 503 So.2d 350, 355, (Fla.Dist.Ct.App. 1987); People v. Turner, 42 Cal.3d 711, 726 P.2d 102, 230 Cal.Rptr. 656 (1986); People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 764, 148 Cal.Rptr. 890 (1978).

6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., in Slappy, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged. Slappy, 504 So.2d at 352 and 355.

7. Disparate examination of members of the venire; e.g., in Slappy, a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, but not to white jurors. Slappy, 503 So.2d at 355.

8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury. Batson, 476 U.S. at 93, 106 S.Ct. at 1721; Washington v. Davis, 426 U.S. at 242, 96 S.Ct. at 2049.

9. The state used peremptory challenges to dismiss all or most black jurors. See Slappy, 503 So.2d at 354, Turner, supra.

After a prima facie case is established, there is a presumption that the peremptory challenges were used to discriminate against black jurors. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. The state then has the burden of articulating a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. However, this showing need not rise to the level of a challenge for cause. Jackson, supra; Neil, 457 So.2d at 487; Wheeler, 22 Cal. 3d at 281-82, 583 P.2d at 765, 148 Cal.Rptr. at 906.

In addition to a clear, specific, and plausible nondiscriminatory explanation of a specific characteristic that affected the decision to challenge, the following are illustrative of the types of evidence that can be used to overcome the presumption of discrimination and show neutrality:

1. The state challenged non-black jurors with the same or similar characteristics as the black jurors who were struck.

2. There is no evidence of a pattern of strikes used to challenge black jurors; e.g., having a total of 6 peremptory challenges, the state used 2 to strike black jurors and 4 to strike white jurors, and there were blacks remaining on the venire.

Batson makes it clear, however, that "[t]he State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. Rather, the State must demonstrate that 'permissible racially neutral selection criteria and procedures have produced the monochromatic result.' " Batson, 476 U.S. at 94, 106 S.Ct. at 1721, citing Alexander v. Louisiana, 405 U.S. 625, 632, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1972). Furthermore, intuitive judgment or suspicion by the prosecutor is insufficient to rebut the presumption of discrimination. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. Finally, a prosecutor cannot overcome the presumption "merely by denying any discriminatory motive or 'affirming his good faith in individual selections.' " Batson, 476 U.S. at 98, 106 S.Ct. at 1723, citing Alexander, 405 U.S. at 632, 92 S.Ct. at 1226.

Once the prosecutor has articulated a nondiscriminatory reason for challenging the black jurors, the other side can offer evidence showing that the reasons or explanations are merely a sham or pretext. Wheeler, 22 Cal.3d at 282, 583 P.2d at 763-64, 148 Cal.Rptr. at 906. Other than reasons that are obviously contrived, the following are illustrative of the types of evidence that can be used to show sham or pretext:

1. The reasons given are not related to the facts of the case.

2. There was a lack of questioning to the challenged juror, or a lack of meaningful questions.

3. Disparate treatment — persons with the same or similar characteristics as the challenged juror were not struck. Slappy, 503 So.2d at 354; Turner, 42 Cal.3d at 725, 726 P.2d at 110, 230 Cal.Rptr. at 664; Wheeler, 22 Cal.3d at 282, 583 P.2d at 760, 148 Cal.Rptr. at 906.

4. Disparate examination of members of the venire; e.g., a question designed to provoke a certain response that is likely to disqualify the juror was asked to black jurors, but not to white jurors. Slappy, 503 So.2d at 355.

5. The prosecutor, having 6 peremptory challenges, used 2 to remove the only 2 blacks remaining on the venire. Cf. Slappy, 503 So.2d at 354; Turner, 42 Cal.3d at 715, 726 P.2d at 103, 230 Cal.Rptr. at 657.

6. "[A]n explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically." Slappy, 503 So.2d at 355. For instance, an assumption that teachers as a class are too liberal, without any specific questions having been directed to the panel or the individual juror showing the potentially liberal nature of the challenged juror.

The trial court, in exercising the duties imposed upon it, must give effect to the state policy expressed in Sections 1, 6, and 22 of the Alabama Constitution and Code 1975, § 12-16-55 and § 12-16-56. Furthermore, the trial judge must make a sincere and reasonable effort to evaluate the evidence and explanations based on the circumstances as he knows them, his knowledge of trial techniques, and his observation of the manner in which the prosecutor examined the venire and the challenged jurors. People v. Hall, 35 Cal.3d 161, 672 P.2d 854, 858, 197 Cal.Rptr. 71 (1983); see also Wheeler, 22 Cal.3d at 281, 583 P.2d at 764, 148 Cal.Rptr. at 906.

In evaluating the evidence and explanations presented, the trial judge must determine whether the explanations are sufficient to overcome the presumption of bias. Furthermore, the trial judge must be careful not to confuse a specific reason given by the state's attorney for his challenge, with a "specific bias" of the juror, which may justify the peremptory challenge:

"The latter, a permissible basis for exclusion of a prospective juror, was defined in Wheeler as 'a bias relating to the particular case on trial or the parties or witnesses thereto.' Wheeler, 22 Cal.3d at 276, 148 Cal.Rptr., at 902, 583 P.2d at 760. Further, a review of the record demonstrated that the prosecutor had not, in fact, satisfied his burden of showing that he excluded the Spanish surnamed jurors on the grounds of specific bias."

Slappy, 503 So.2d at 354. The trial judge cannot merely accept the specific reasons given by the prosecutor at face value, see Hall, 35 Cal.3d at 168, 672 P.2d at 858-59, 197 Cal.Rptr. at 75; Slappy, 503 So.2d at 356; the judge must consider whether the facially neutral explanations are contrived to avoid admitting acts of group discrimination. See Slappy, supra. This evaluation by the trial judge is necessary because it is possible that an attorney, although not intentionally discriminating, may try to find reasons other than race to challenge a black juror, when race may be his primary factor in deciding to strike the juror. Finally, if the trial judge determines that there was discriminatory use of peremptory challenges, an appropriate remedy may be to dismiss that jury pool and start over with a new pool. Jackson, supra, citing Neil, supra, at 487. This remedy is not exclusive, however.

As suggested, the foregoing are simply illustrations, based on the recent development of case law in this area, of the types of evidence and considerations that can be taken into account in evaluating whether peremptory challenges have been used in a discriminatory manner. Certainly, as the law develops, more may be added.

The trial judge should not, as he did in this case, wait until the end of the trial to make a ruling on the motion for a mistrial based on the state's impermissible use of its peremptory challenges. The trial judge should rule on any motion that attacks the state's use of its peremptory strikes before the jury is sworn to try the case, unless, of course, the parties agree to allow the state to present race-neutral reasons at a later time. We do not suggest that the additional time, as was given in this case, necessarily allowed the prosecutors in this case to present race-neutral reasons they did not have at the time the motion was made, but the allowance of additional time would present this opportunity, if a prosecutor were so inclined. Furthermore, a ruling on the matter before the jury is sworn would result in judicial economy.

SCOPE OF REVIEW ON APPEAL

What is the scope of review on appeal from a finding by the trial judge that the state has given a satisfactory neutral explanation? This, too, is a question of first impression. In Batson, the Court stated that "[w]e have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors." Batson, 476 U.S. at 97, 106 S.Ct. at 1723. In Batson, the Court, in footnotes 20 and 21, discussed how it had handled similar cases involving claims of discrimination, and the weight to be given court findings:

"The Court of Appeals for the Second Circuit observed in McCray v. Abrams, 750 F.2d [1113] at 1132 [(2d Cir. 1984)], that '[t]here are any number of bases' on which a prosecutor reasonably may believe that it is desirable to strike a juror who is not excusable for cause. As we explained in another context, however, the prosecutor must give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981).

"In a recent Title VII sex discrimination case, we stated that 'a finding of intentional discrimination is a finding of fact' entitled to appropriate deference by a reviewing court. Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference. Id., at 573, 105 S.Ct. at 1511."

Batson, 476 U.S. at 98, 106 S.Ct. 1723, 1724.

In Jackson, this Court said that the "trial court must use its discretion" in determining whether the prosecutor's reasons are adequate.

In view of the statements made both in Batson and Jackson, we believe that the Court of Criminal Appeals correctly held that "[w]e may only reverse the trial judge's determination that the prosecution's peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous," citing United States v. Mathews, 803 F.2d 325, 330 (7th Cir. 1986). The Court of Criminal Appeals, applying this standard of review, concluded:

"We find that the trial court's treatment of Branch's motions and its ruling were proper, for the prosecution's explanations for its strikes were neutral, clear and reasonably specific, legitimate, and related to the outcome of the case. After considering all the relevant circumstances, as the trial court did, we also conclude that Branch failed to carry his ultimate burden of proving discriminatory selection of the petit jury; thus, we cannot say that the court's ruling was 'clearly erroneous.' "

After reviewing the same record as did the Court of Criminal Appeals, we do not come to the same conclusion, at this time.

CONCLUSION

The history of this state, insofar as peremptory challenges are concerned, shows that the defendant has been favored throughout most of this history. The legal attacks that have been made upon this state's jury selection process indicate that racial bias may have played a significant role in the past in the jury selection process, but any improper practice of the past should not affect the present application of the law as set forth in Batson and Jackson. As this Court pointed out in Beck v. State, 396 So.2d 645 (Ala. 1981), in discussing the application of guidelines in death penalty cases:

"The possibility of racial or other bias in the trial or sentencing process has greatly diminished in Alabama in the last several years. To begin with, the entire judicial system was revamped and Alabama is now recognized nationally as having one of the best judicial systems in the nation. The Death Penalty Act was passed by a legislature which was reapportioned under a federal court order which insured representation of minorities by a wholesale redistricting of the state. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct., 1362, 12 L.Ed.2d 506 (1964). Furthermore, Alabama has adopted a Jury Selection Act which declares, as policy, 'that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity, in accordance with this article, to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose.' Code 1975, § 12-16-55. Discrimination in jury selection is specifically prohibited. Code 1975, § 12-16-56."

Article 1 of our State Constitution provides:

"That the great, general, and essential principles of liberty and free government may be recognized and established, we declare:

"§ 1. That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness."

This section has been the first "Article" and the first "Section" of every constitution the people of this state have ever ratified. While we recognize that the Constitutions of 1819 and 1861 used the word "freemen" instead of the word "men," we need only accept that as being a part of our history, and that the mandates of the Constitution of 1901 make no distinction among our citizens with regard to the right to "life, liberty, and the pursuit of happiness."

In the Jackson case, this Court cited Section 1 of our state constitution, and, in this opinion, we cite our legislative policy regarding the drawing, selecting, and empanelling of our juries. As judges, we have taken an oath to uphold the principles embodied in our state and federal constitutions.

The jury, which is such an integral part of the judicial system of this state, should be impartial and free of bias and prejudice. On the other hand, no citizen should be denied his right to be "considered" for jury service "on account of race, color, religion, sex, national origin or economic status." § 12-16-55 and § 12-16-56. Public respect for our criminal justice system and the rule of law demands that these public policies be implemented.

We recognize that prosecutors and defense counsel alike are generally faced with selecting a jury for the trial of a case from a strike list that contains the names of many individuals on whom they have limited knowledge, or no knowledge, of their backgrounds, biases, prejudices, or qualifications to serve on a particular case. In the past, it is probable that prosecutors did engage in general "stereotyping" in order to eliminate those individuals who they thought might harbor some undisclosed bias or prejudice. Batson and Jackson definitely affect the manner of the exercise of those types of peremptory challenges, but they do not eliminate peremptory challenges. Obviously, Batson and Jackson place more responsibility on trial judges, and on prosecutors, but as the Supreme Court of the United States noted in Batson, the proper use of voir dire can, in many instances, ferret out any hidden bias or prejudice on the part of a particular juror, and while that hidden bias or prejudice in a particular case might not rise to the point of being a challenge for cause, it could form the basis for a valid peremptory challenge. We are confident that our judicial system is capable of using the guidelines we establish herein to guarantee the right of every accused a fair trial, and to preserve "public respect for our criminal justice system and the rule of law." Batson, 476 U.S. at 99, 106 S.Ct. at 1724.

We realize that the trial court and the Court of Criminal Appeals were reviewing the requirements of Batson with little guidance on how a trial judge should discharge his responsibility when a defendant raises a Batson objection. We have the benefit of several cases decided in other jurisdictions, which may or may not have been called to the attention of those courts. We also have benefited from some reviews of Batson that have been made in legal publications. We believe that the guidelines that we set out in this opinion will not only aid the trial court in this case, but other courts faced with a Batson or Jackson challenge.

After reviewing this cause, we cannot conclude that the trial judge's findings should be affirmed; neither can we conclude, at this time, that we should reverse; therefore, we remand the case to the Court of Criminal Appeals with directions to remand it to the trial court for the purpose of allowing the trial judge to review again the proceedings conducted before him, using the guidelines we adopt in this opinion. In carrying out this responsibility, he may or may not conduct an additional hearing at which either party would be allowed to introduce evidence to show the bona fides, or lack thereof, of the state's peremptory challenges. The defendant, although not required to do so, may want to show, if he can, a "pattern" of the use by the state of peremptory challenges in cases.

Based on the foregoing, the cause is remanded to the Court of Criminal Appeals for further proceedings consistent with this opinion, and with directions to the Court of Criminal Appeals to remand the cause to the trial court to conduct proceedings consistent with this opinion, and with directions to the trial court to file with the Court of Criminal Appeals its findings and conclusions, not more than 56 days after entry of that court's mandate. After receipt of the trial court's order and judgment after remand, the Court of Criminal Appeals is directed to review the trial court's order as it would on an original appeal. If aggrieved by the order of the Court of Criminal Appeals after remand, either party may then request this Court to review that order as permitted by Rule 39, Ala.R.App.P.

We cannot hope to answer all the questions that will be raised by the Batson and Jackson cases. Why was Batson decided as it was? In a comment in the Akron Law Review, there is one interpretation:

"Undoubtedly, the heart of Swain was the recognition that the peremptory is the most effective method of identifying and excluding those jurors most strongly biased in favor of the opposition — something the challenge for cause does not allow. Reliance on the peremptory is at a premium in criminal trials because attorneys have 'less than perfect information about the predispositions and hidden biases of prospective jurors.' In such trials monetary considerations preclude use of innovative juror information techniques. Attorneys are forced to 'rely on stereotypes, common sense judgments and even common prejudices in deciding whether a juror with a given age, race, sex, religion, ethnic background, and occupation will act impartially toward a particular defendant.' The peremptory has allowed litigants to rely on these considerations and exclude petit jurors accordingly. Not requiring a reason for peremptorily challenging a juror 'avoids trafficking in the core of truth in most common stereotypes,' and essentially 'allows the covert expression of what we dare not say but know is true more often than not.' The Supreme Court's refusal in Swain to impose judicial scrutiny on the peremptory facilitated its salutary effects.

"Why, then, did the Batson Court find that the peremptory challenge is a jury selection practice that 'has been used to discriminate against black jurors?' A number of factors can be attributed to justify the Batson holding.

"One is simply history. Justice Powell placed much emphasis on the antidiscrimination principles emanating from the 'venire cases,' in which the Court consistently struck down state attempts to systematically exclude blacks from the jury venire. Such discrimination was held to violate the defendant's right to an impartial jury whether by force of statutes that purposefully excluded members of the black race, or through facially neutral statutes that were discriminatory in application. These cases stood for the proposition that racial discrimination in the selection of jurors harms the accused. The majority followed Strauder v. West Virginia [100 U.S. (10 Otto) 303, 25 L.Ed. 664], which is characterized as 'the most vigorous statement of the anti-discrimination principle to be found in the United States for a full century after emancipation.' Such a description is warranted by the broad and sweeping language of Strauder:

" 'The right to a trial by jury is guaranteed. . . . . The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected . . . to determine . . . and is the grand bulwark of his liberties. . . . In view of these considerations . . . how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the state has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial of equal legal protection?'

" Swain effectively thwarted Strauder's broad commitment to non-discriminatory jury selection by insulating the peremptory from attack when used at the petit jury level." (Footnotes omitted.)

Wilson, Batson v. Kentucky: Can the 'New' Peremptory Challenge Survive the Resurrection of Strauder v. West Virginia? 20 Akron L.Rev. 355 (1986).

Can the "new" peremptory challenge survive the resurrection of Strauder? Of course, the Supreme Court of the United States and this Court are of the opinion that the peremptory challenge can survive, but its use will be closely scrutinized in some cases. It is because we want the trial court to further scrutinize its own findings in this case, in view of the guidelines that we set out, that we remand it. Trial judges, under Batson, have great responsibility to ensure that there be a non-discriminatory selection of a jury. The

Batson court expressed confidence that the trial bench would ensure the constitutional rights guaranteed by its holding. We remand the case with the same confidence.

REMANDED, WITH DIRECTIONS.

JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.

TORBERT, C.J., concurs specially.

BEATTY and HOUSTON, JJ., dissent.

PER CURIAM.

The opinion has been modified slightly to meet some objections raised by the State and the Alabama District Attorneys Association, as amicus curiae, but otherwise remains unchanged.

OPINION MODIFIED; APPLICATION OVERRULED.

MADDOX, JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.

TORBERT, C.J., concurs specially.

BEATTY and HOUSTON, JJ., dissent.