Batson Fails Again: How the Resurgence of Black Lives Matter Highlights the Ease of Bypassing the Race-Neutral Requirement and Proposed Modifications to Refine the Standard.

• Author: Duluc, Linette A.

"When Black people today declare, 'Black Lives Matter' in the face of race-based killings by police and vigilantes, their voices echo Sojourner Truth asking, 'Ain't I a Woman' in the face of chattel slavery and Black protesters declaring, 'I am a Man' in the face of a racial caste system...." (1)

1. Introduction

   Racism seeps into the process of jury selection--legally referred to as voir dire. (2) A century of case law has proven this fact. (3) Voir dire is a component of every American's Sixth and Fourteenth Amendment rights, by which a person may "enjoy the right to a speedy and public trial, by an impartial jury" and may not be deprived "of life, liberty, or property, without due process of law." (4) Through voir dire, the trial judge and attorneys determine which potential jurors will eventually decide the outcome of a trial. (5) Trial judges, using their discretion, decide the parameters of questioning prospective jurors to create an impartial and fair jury. (6) Through peremptory challenges, the prosecution and defense may strike a potential juror from consideration for no stated reason. (7)

   In Peters v. Kiff, (8) the United States Supreme Court held that the Equal Protection and Due Process Clauses protect against arbitrary juror exclusion, regardless of whether the juror and defendant are of different races. (9) Later, in Batson v. Kentucky, (10) the Court held that a party cannot strike a potential juror from duty solely because the juror and defendant share the same race. (11) In the landmark decision, the Court pushed this notion further by establishing a three-part test to determine whether a peremptory challenge is racially based and therefore violates the Equal Protection Clause. (12)

   While Batson laid the standard for nondiscriminatory voir dire, attorneys still strike potential jurors based on their race. (13) Prosecutors, in particular, successfully remove jurors for racial and ethnic purposes behind facially neutral justifications. (14) For example, after the resurgence of the Black Lives Matter (BLM) social justice movement following the murder of George Floyd, prosecutors have incorporated seemingly race-neutral, BLM-related inquiries into juror questioning, causing further removal of jurors based on their race. (15) BLM is a social justice movement created in response to police brutality with the mission to eradicate white supremacy. (16) BLM originated from a now globally recognized hashtag, #BlackLivesMatter, sparked in 2013 from the acquittal of George Zimmerman in the case of Trayvon Martin's murder. (17) In 2020, the movement surged again after a police officer murdered George Floyd, triggering the largest protests in U.S. history; BLM became a household name as a significant advocate and facilitator of these demonstrations. (18)

   This Note first explores the history of voir dire in both federal and state criminal trials, investigating how prosecutors use peremptory challenges in a manner that ultimately prevents the Black community from serving on juries. (19) Then, it describes the standard for determining whether a peremptory challenge is founded in discrimination. (20) This Note argues prosecutors used the revival of the BLM movement to create a new "race-neutral" avenue to disproportionately exclude racial and ethnic minorities from jury duty. (21) Finally, this Note contends that detection of implicit bias in voir dire is essential to protect against this new route of discrimination. (22) In light of changed understandings of implicit bias and its effects, this Note concludes with proposed modifications to the Batson standard to further eliminate racial discrimination in voir dire. (23)

2. History

   1. The Unwritten Right to Voir Dire and Peremptory Challenges 1. Voir Dire from 30,000 Feet

      Through the Fifth and Sixth Amendments, the United States Constitution grants criminal defendants due process rights, including the right to a trial by an impartial jury. (24) Jurors listen to the evidence presented and draw conclusions on the facts throughout a trial; these "fact-finders" make up the jury, which ultimately determines innocence or guilt in most criminal cases. (25) The group of prospective jurors is called a venire, and the Constitution requires that it represent a fair cross-section of the community where the crime took place. (26) To establish a violation of this Sixth Amendment right, a defendant must prove three things: the excluded juror belongs to a distinctive group in the community, this group's representation in the venire was not a fair and reasonable reflection of their representation in the community, and the underrepresentation resulted from systematic exclusion during jury selection. (27) The Sixth Amendment right to trial requires an impartial jury which, in turn, creates a right to nondiscriminatory voir dire. (28)

      Voir dire is a French phrase meaning "to speak the truth," and the process achieves the overall goal of obtaining an impartial and fair jury by identifying, and therein allowing attorneys and judges to remove, those who display prejudice or an inability to serve. (29) Conducting voir dire requires multiple steps, starting with gathering a pool of prospective jurors from governmental records. (30) Any person acting as a juror in a federal trial must meet the following specific statutory requirements: be at least eighteen years of age and a U.S. citizen living in the respective district for one year; proficiently read, write, speak, and understand English; not have a mental or physical ailment preventing satisfactory jury service; and not have either a charge pending or conviction for a crime punishable with a sentence of more than one year, unless the individual's civil rights have been restored. (31) State legislatures create their own statutes delineating juror qualifications, typically containing similar requirements in regard to age, residency, and English abilities. (32)

      Once the jury panel has been established, each juror faces a two-step questioning process. (33) In the first step, the court determines each potential juror's statutory qualifications. (34) These requirements include ensuring a juror understands and speaks English, and has the capacity to judge impartially. (35) In the second step, the judge determines any biases or prejudices of each venire member. (36) The attorneys and judge present the venire with questions intended to determine a prospective juror's fitness to serve. (37)

      During voir dire, the court, along with the attorneys, learn about jurors' ideologies and experiences by reviewing juror questionnaires, orally questioning the venire, or sometimes both. (38) In state courts, this process varies widely by jurisdiction, with some states allowing complete attorney-conducted voir dire, and other states allowing little to no attorney participation. (39) Where a statute does not provide a right to attorney-conducted voir dire, an attorney may move to request the court to allow attorney participation. (40) In judge-conducted voir dire, the court may receive proposed questions from the attorneys and decide whether to present them to the venire. (41) Studies show that voir dire carried out by judges prevents attorneys from using jury selection as a strategy to devise pretextual reasons for excluding jurors based on race and reduces time attorneys may waste asking trivial questions. (42) A downside to judge-conducted voir dire, however, is that potential jurors may not respond as candidly to questions judges pose, because jurors may view judges as superior, as opposed to attorneys, whom they may consider closer to equals. (43)

      Regardless of who conducts the questioning, courts retain broad discretion regarding how voir dire proceeds, including the type and scope of inquiry. (44) For example, a court may decline to include specific questions an attorney submits, so long as other inquiries convey the substance of those questions to the jury. (45) This discretion is not all-encompassing; there are three restrictions the court must abide by during voir dire, and acting contrary to these restrictions triggers an investigation if either party challenges a particular excluded question. (46) First, the court's discretion does not extend to precluding questions related to the basic rights of a defendant. (47) For example, at an attorney's request, the court must ask jurors about their understanding of elements of the crime charged and the burden of proof--beyond a reasonable doubt--in a trial. (48) Second, the court must not prevent either party from discerning potential racial biases of the prospective jurors in certain scenarios: issues in the conduct of the trial concern race or ethnicity, it is an interracial death penalty case, or the defendant accused of a violent crime requests such an inquiry and there is a "reasonable possibility" racial prejudice influenced the jury (i.e., where the defendant and victim are a different race or ethnicity). (49) Finally, a court may not prevent the parties from asking questions meant to reveal jurors' opinions toward the death penalty in capital cases. (50)

      2. For-Cause Strikes and Peremptory Challenges

      The court may strike a juror "for cause" if evidence shows prejudice or establishes a conflict of interest. (51) Trial judges dismissing a prospective juror for cause must be convinced that the juror at issue threatens the overall goal of creating a fair and impartial jury. (52) In determining whether the prospective juror will ultimately serve, the trial judge must consider the entire testimony presented, not merely a specific selection of the juror's responses. (53) Courts agree that the Constitution does not provide the defendant the right to challenge most portions of the voir dire proceedings. (54) Defendants have the right to be present during voir dire, however, and may inquire about a venire member's potential racial bias against them. (55) On appeal, reviewing courts employ an...