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

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.