Batson v. Kentucky: New Approaches to Decoding Discriminatory Motive for Peremptory Jury Strikes

A live 90-minute CLE video webinar with interactive Q&A


Thursday, March 25, 2021

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, March 5, 2021

or call 1-800-926-7926

This CLE webinar will explore best practices to avoid drawing accusations of discrimination when using peremptory jury strikes, the strategic uses and risks they create in terms of liability and cost, and how courts decipher pretextual exclusions on race, gender, or other group identities. The panel will review the Batson challenge process, shifting burdens of proof, and appeals issues, as well as discuss recent circuit decisions that raise issues about what constitutes a discriminatory intent to exclude. The program will also discuss major changes in state law to address "implicit bias."

Description

Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny hold that the Equal Protection Clause prohibits parties from striking potential jurors "solely on account of their race," gender, and other classes. If the party challenging a strike sets forth a prima facie case of discrimination, the striking party must articulate a non-discriminatory (i.e., race-neutral) explanation. Thereafter, the court must evaluate whether the stated reason was mere pretext. If so, the remedy is a new trial, even if decades after the original.

Yet, judges and practitioners continue to struggle to apply Batson, and many have questioned its efficacy and efficiency. Others have noted the potential for abuse since one way to challenge a disappointing verdict is to raise a Batson challenge. Many trial lawyers say they strike jurors based on instinct, but challenges to those strikes are more likely to succeed. At times the line between a peremptory strike and a strike for cause is razor-thin.

There are procedural and practical obstacles in raising a Batson objection, such as timing, establishing a record, and the appeals process. Several states created new standards for judging peremptory strikes that could materially change the standards for judging the strikes' validity.

Listen as our experienced panel discusses the nuances of applying Batson, what kinds of reasons have been found to be pretextual and those that have not, and where the jurisprudence on jury strikes may be headed.

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Outline

  1. Overview of Batson jurisprudence and applicability
  2. Three-step Batson process
  3. Rebuttal of prima facie case
    1. Inherently race/gender bases reasons
    2. Types of evidence considered
    3. Recording the jury venire
  4. Assessment by the trial court
    1. Abuse of discretion
    2. Credibility
    3. Statistical evidence of the use of strikes against a particular group
    4. Disparate questioning
    5. Comparative analysis
    6. Misrepresentations of the record
    7. Relevant history in past cases
    8. Other relevant circumstances
  5. Standard of review on appeal
  6. Emerging state solutions in California, Connecticut, and Washington

Benefits

The panel will review these and other key issues:

  • What is the standard for determining if a jury strike is suspect?
  • What is a "neutral" reason for a peremptory strike?
  • How much of a nexus is required between the reason?
  • Does distrust of the criminal justice system and police provide a race-neutral basis for peremptorily challenging a juror?
  • Are race or gender goals for jury makeup suspect under Batson?
  • Does it matter if those goals are created with data developed by jury consultants or mock trials?
  • What evidence in the record can be used to show that a strike was based on the proposed jury’' conduct during venire, and how can counsel preserve it?
  • How can counsel spot and prevent abusive Batson challenges?

Faculty

Adams, Matthew
Matthew S. Adams

Partner
Fox Rothschild

Mr. Adams is Co-Chair of the firm’s White-Collar Criminal Defense & Regulatory Compliance Practice Group and...  |  Read More

Edmunds, Robert
Robert H. Edmunds, Jr.

Counsel
Fox Rothschild

Justice Edmunds helps clients navigate complex criminal and civil appeals in state and federal court. He also protects...  |  Read More

Egan, Patrick
Patrick J. Egan

Partner
Fox Rothschild

Mr. Egan is a former co-chair of the firm's White-Collar Criminal Defense & Regulatory Compliance Practice. A...  |  Read More

Kingman, Marissa
Marissa Koblitz Kingman

Attorney
Fox Rothschild

Ms. Kingman focuses her practice on white-collar criminal defense and complex commercial litigation.

 |  Read More

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