Peremptory strikes in criminal jury trials have a long history. Unlike the challenge for cause, the peremptory challenge was exercised without a demonstration of cause by the defendant. Indeed, the peremptory challenge enabled the Crown to handpick juries dating to thirteenth-century England. Finding this obnoxious to their idea of justice, however, Parliament reserved the peremptory as a right for defendants only, and prohibited its use by the Crown. Additionally, American colonists continued the English practice regarding the peremptory challenges. As in England, criminal defendants were allotted peremptory challenges by statute, depending on the crime charged, while the challenges were completely denied to the prosecution. Today, the peremptory challenge is a part of modern trial practice and available to both parties.1 But with respect to Batson v. Kentucky, the issue involved a prosecutor’s discriminatory, race-based use of peremptory challenges.2
Batson v. Kentucky: Procedural History
During voir dire for defendant’s burglary and receiving stolen property trial, the prosecutor struck the only four black people in the jury pool. Additionally, the defendant was a black man. Consequently, defense counsel objected to the composition of the all white jury created by the prosecutor’s action based on the Constitution’s Sixth and Fourteenth Amendments. Additionally, defense counsel argued the Sixth2 and Fourteenth Amendment3 guaranteed a jury drawn from a cross section of the community. Furthermore, defense counsel also advocated the Fourteenth Amendment guarantees equal protection of the laws.
Denying this objection, however, the judge reasoned either party could freely exercise peremptory challenges. Furthermore, the judge reasoned the cross-section requirement applied only to the selection of the jury pool, not to the selection of the petit jury panel. Therefore, the case proceeded to trial, the D.A. said he was the one who did the deed, and the all-white jury agreed.
Furthermore, on appeal the Supreme Court of Kentucky upheld the trial court. The Kentucky high court rejected defense counsel’s advocacy to follow the approaches in sister states and bar the prosecutor’s use of the peremptory challenge not only the Sixth Amendment but also Kentucky Constitution § 11.4
Batson v. Kentucky: Question Presented
Did the prosecutor’s use of peremptory challenges to exclude the four blacks from the jury violate Batson’s Sixth and Fourteenth Amendment rights to a fair jury trial and his Fourteenth Amendment right to equal protection of the laws?
Batson v. Kentucky: Holding
Yes, the Equal Protection Clause forbids the prosecutor from challenging potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.
Batson v. Kentucky: Reasoning
The State violates the Equal Protection Clause when it puts a black defendant on trial before a jury that purposefully excludes members of his race.6 Indeed, the Fourteenth Amendment intended to end race-based government discrimination. Nevertheless, this prohibition only applied to the selection of citizens for the venire based on nondiscriminatory criteria. But it did not apply to the selection of venire members for the petit jury.
The petit jury safeguards against the arbitrary exercise of power by a prosecutor or judge.7 In addition to violating the rights of the defendant, racial discrimination also violates the rights of the citizen. This is so because one’s race is irrelevant to one’s competence to serve as a juror. Furthermore, race-based discrimination in jury selection harms the entire community because it undermines confidence in the justice system.
The Constitution prohibits facially discriminatory statutes and also discriminatory administration of law. The Strauder Court struck down a facially discriminatory statute that allowed only white men to serve as jurors. Supreme Court precedent demonstrates the denial of equal protection where it found procedures to implement a facially neutral statute excluded venire members on racial grounds. Additionally, SCOTUS precedent also demonstrates the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors.
Although prior decisions only applied to venire selection, the principles also apply to all the stages in the selection process. Therefore, the Fourteenth Amendment prohibition against racial discrimination applies to the petit-jury empanelment process, too. Furthermore, it applies to the exercise of peremptory challenges.
In Swain v. Alabama 8, the Court explained an inference of purposeful discrimination would be raised on evidence against a prosecutor who in case after case always struck all the black venire members. Consequently, many lower courts required proof of repeatedly striking black people over a number of cases to establish an Equal Protection Clause violation. This placed defendants under a crippling burden to prove a prima facie case.
With respect to the selection of the venire, the defendant shouldered the burden of proving purposeful race-based governmental discrimination under the Equal Protection Clause. The trial court had to consider direct and circumstantial evidence of intent. Circumstantial evidence may include proof of disproportionate impact. Next, the burden shifted to the State to demonstrate the use of racially neutral selection criteria and procedures.
To make a prima facie case of a race-based peremptory strike, the defendant shoulders the burden to prove he belongs to a clearly identifiable racial group. Additionally, the defendant must prove the prosecutor peremptorily struck members of that racial group from the venire. Finally, the defendant must demonstrate these facts and any other relevant circumstances raise an inference removed the prospective jurors because of their race.
Next, the burden shifts to the State to provide a neutral explanation for challenging black jurors. This need not rise to the level of a challenge for cause. Nevertheless, the prosecutor must state a neutral explanation related to the particular case to be tried. It is not enough for the prosecutor to justify the strike
- based on an assumption of juror partiality based on shared race,
- by denying he had a discriminatory motive, or
- by affirming his good faith in making individual selections.
Based on all this, the trial court will decide if the defendant established purposeful discrimination.
In this case, defense counsel raised a timely objection. The judge overruled the objection without requiring the prosecutor to provide a racially neutral explanation. Therefore, SCOTUS reversed and remanded this case for further proceedings consistent with this opinion. If the prosecutor cannot offer a neutral explanation, the conviction must be reversed.
1 Case Comment, 38 Rutgers L.J. 1485, 1488-1490 (2007), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1143026 (last visited Mar. 19, 2017).
2 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d (1986).
3 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” U.S. Const. amend. VI.
4 “No State shall…deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
5 “In all criminal prosecutions the accused…shall have a speedy public trial by an impartial jury of the vicinage.” Ky. Const. § 11
6 Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303, 25 L.Ed.664 (1880).
7 Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
8 Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).