Criminal Law
| Jurisdiction | United States,Federal |
| Citation | Vol. 51 No. 4 Pg. 22 |
| Pages | 22 |
| Publication year | 2022 |
Batson-Aging Well or In Need Of Revision?
by Lynn Noesner.
This article discusses the history and current state of the Batson v. Kentucky test for assessing purposeful discrimination in peremptory challenges.
Over 35 years ago in Batson v. Kentucky, the US Supreme Court held that purposeful racial discrimination during jury selection violates a defendant's right to equal protection, and it set forth a test for assessing such discrimination.[1] This article takes a closer look at Batson's, purpose, the logistics of its application, some of its flaws, and other evolving tests for determining whether a party engaged in purposeful discrimination when using a peremptory challenge.
Batson's Framework and Purpose
The Batson Court established a three-step framework for determining whether a party engaged in purposeful discrimination by using a peremptory challenge to excuse a member of a protected group from a jury.[2] The Court intended this test to be easier to satisfy than its predecessor test, enunciated in Swain v. Alabama, under which defendants had a "crippling burden" to show evidence of systemic or repeated exclusion of minority jurors.[3]
During the first step, the defendant (or the party raising the Batson objection;[4] for ease of reference, this article refers to the defendant as the party raising the challenge) must establish a prima facie case of purposeful discrimination. "The prima facie standard is not a high one."[5] The defendant meets this burden by showing that the prosecution struck a member of a protected group from the jury and the totality of relevant facts gives rise to an inference of discrimination.[6] At the first step, the defendant need not prove discrimination by a preponderance of the evidence but may rely on the undisputed fact that peremptory challenges "permit those to discriminate who are of a mind to discriminate."[7] Further, the defendant need not show a pattern of discrimination, though such evidence would be relevant; rather, the prosecution's actions against a single juror can satisfy Batson.® Second, the prosecution must provide a facially valid, race-neutral reason for the strike.[9] The explanation need not rise to the level justifying an exercise of a challenge for cause, but the prosecution cannot satisfy step two by merely denying a discriminatory motive or by pointing to other jurors of color whom the prosecution did not strike.[10] And the court may not fulfill the prosecution's obligation by sua sponte offering its own reasons for striking a juror.'' After the prosecution offers its race-neutral reasons, the defendant must have the opportunity to rebut the explanation.[12]
Lasdy, the court must assess the persuasiveness of the prosecutor's justification for the peremptory strike in light of all the evidence and determine whether the defense established by a preponderance of the evidence that the prosecution excluded a prospective juror because of race or another protected class membership.[13]
The Batson Court focused on protecting the defendant's equal protection rights in light of the prosecution's actions in that case. But the Court noted other broader, relevant interests: "In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race."[14] Subsequently, the Court explicitly expanded Batson's purpose to include protecting excluded jurors' rights and the integrity of the entire system.[15] And the Court has repeatedly emphasized the importance of jury service to democracy, stating that "with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process."[16]
Batson Expands and Colorado Follows Suit
In the years following Batson, the US Supreme Court expanded the doctrine by removing the requirement for shared racial identity between the defendant and the excluded juror,[17] extending the doctrine to civil trials and to defense counsel in criminal trials,[18] and including gender as a protected classification or group.[19] In addition to these safeguards, Colorado jurors are further protected by CRS § 13-71-104(3)(a), which provides: "No person shall be exempted or excluded from serving as a trial or grand juror because of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, economic status, or occupation." Batson's, three-step framework is also the governing test applicable to alleged violations of this statute or when evaluating a juror's exclusion from service based on a protected status recognized only in the Colorado statute.[20]
Satisfying Batson in Real Time
"The Bateow frame work is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process."[21] But how does it operate in real time? How do parties meet their burden? And does the framework achieve the desired end?
Before a party raises a Batson objection or challenge, the party must be aware of which jurors are included in protected groups. This may not be obvious, so it may make sense to solicit information about prospective jurors' identities in jury questionnaires.
After the prosecution strikes a protected prospective juror, the defendant must raise Batson and point to any relevant circumstances that support the minimal prima facie showing at the first step, which may include:
In the years following Batson, the US Supreme Court expanded the doctrine by removing the requirement for shared racial identity between the defendant and the excluded juror, extending the doctrine to civil trials and to defense counsel in criminal trials, and including gender as a protected classification or group.
■ how many other members of the protected class exist in the panel;
■ whether the prosecution has challenged other prospective jurors in protected classes, and if so, what percentage was removed;[22]
■ how much time the prosecution spent questioning the challenged juror;[23]
■ whether the juror answered appropriately;[24]
■ whether the prosecution acted differently toward jurors in protected groups or made any race-related comments;[25]and
■ the presumption established in Batson that peremptory challenges allow for discrimination.[26]
At this step, numbers and names may be important; to preserve an adequate record for appeal, defense counsel should endeavor to include information regarding the race, ethnicity, and/ or gender of any relevant prospective jurors.
At the second step, the prosecution must offer a race-neutral justification for the strike, which has to be "based on something other than the race of the juror."[27] Thus, the prosecution cannot rely on justifications that implicitly involve the juror's race or protected status or any assumptions about race or protected status, including race-related code words or proxies for race.[28] For example, the Colorado Supreme Court recently held that the prosecution failed to meet its burden where it offered several justifications for striking a Hispanic juror, including that he rated the legal system poorly, he experienced racial-profiling, and they feared he would "steer the jury" toward a "race-based reason" why the defendant (also "a Latino male") was charged.[29] The Court reasoned that because part of the prosecution's rationale was "overtly race-based," it had not satisfied Batson's second step.[30]
After the prosecution offers its justifications, the defense must be allowed to present rebuttal evidence. At this point, the defense should try to point to evidence that challenges the validity of the prosecution's asserted justification. For example, evidence of pretext or discriminatory intent may be shown where the prosecution
■ did not question the juror about any of the prosecution's purported concerns,[31]
■ allowed similarly situated non-minority juror(s) to remain,[32]
■ misstated the record,[33]or
■ offered shifting explanations for the prosecution's actions.[34]
This evidence can be challenging to gather on the fly, so to prepare a well-founded rebuttal argument, the defense should consider asking for a recess to review jury questionnaires and notes. It is also a good idea to ask for a real-time transcript, if available.
At the third step, the court faces the difficult job of assessing all the direct and circumstantial evidence bearing on intent and determining whether race or another protected status was a substantial motivating factor in the strike.[35] This requires the court to scrutinize and make findings regarding the plausibility of the prosecutor's proffered rationales, the prosecutor's demeanor, and the juror's demeanor (if the prosecutor relied on demeanor-based rationales).[36]
Counsel should make sure...
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