The Batson Rule

The Batson Rule

Rule 24(b) and Rule 24(c)(4) fix how many peremptory challenges each side holds, and they say nothing about the reasons a side may act on. A peremptory challenge removes a prospective juror without a stated cause, and traditionally it could be exercised "without a reason stated, without inquiry, and without being subject to the court's control."¹ The usual justification is that challenges for cause cannot catch every partial juror: a juror may be biased and unwilling or unable to admit it, and a side that senses the problem can act on that sense without having to prove it.² The same freedom carries a danger. A reason that need not be stated cannot be examined, so a strike driven by race looks, from the outside, exactly like a strike driven by an unexplained hunch. The constitutional limit on that freedom is the subject of this section, and its history begins with a rule that recognized the problem and made it almost impossible to prove.

In Swain v. Alabama the Court held that the Equal Protection Clause reaches a prosecutor's use of peremptory challenges, but it presumed in every case that the prosecutor was using the strikes to obtain a fair jury.³ To overcome that presumption, a defendant had to show that the prosecutor always challenged Black jurors, without regard to the nature of the crime, the defendant, or the victim.⁴ Proof that no Black person had served on a jury in the county for at least fifteen years did not suffice.⁵ The difficulty was one of evidence. A defendant can see what the prosecutor did at his own trial, but how the same office struck jurors in other trials sits in records that a single defendant ordinarily cannot assemble, and the standard was accordingly described as a "crippling burden of proof."⁶ Lower courts applying Swain demanded proof of repeated racial striking in case after case, so the guarantee existed on paper in the one setting where discrimination was easiest to practice and hardest to see.⁷

The case that ended this arrangement was Batson v. Kentucky. A Black man was indicted in Kentucky on two counts of second-degree burglary and one count of receipt of stolen goods. After the judge excused some jurors for cause, the prosecutor used peremptory challenges to strike all four Black persons on the venire, and a jury composed only of white persons was seated.⁸ Defense counsel moved to discharge the jury before it was sworn, the trial judge denied the motion, and the Kentucky Supreme Court affirmed on the strength of Swain, because the defendant had not shown a pattern of discrimination across a series of cases.⁹

The Supreme Court rejected the evidentiary burden that Swain had imposed, and the holding fits in one sentence: the Batson rule forbids a prosecutor to use peremptory challenges to exclude jurors on account of race, and a defendant may make out a prima facie case of purposeful discrimination (a showing that, if left unanswered, raises an inference of discrimination and requires the other side to respond) solely from the prosecutor's use of peremptory challenges at the defendant's own trial.¹⁰ The footing is the Equal Protection Clause of the Fourteenth Amendment, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.¹¹ Its central purpose is to stop the States from purposefully discriminating on the basis of race,¹² and a prosecutor who strikes jurors acts for the State, so the State's privilege to strike individual jurors is subject to the Clause.¹³ The ruling carries over to individual strikes the older principle, traced to Strauder v. West Virginia, that a State denies equal protection when it keeps jurors out of the pool because of their race.¹⁴

Two ideas are packed into that holding, and each has its own reason. The substantive half says race cannot be the reason for a strike, even a reason the prosecutor sincerely holds. Swain had allowed a prosecutor to strike a Black juror who was thought a worse fit for the prosecution in that case, but Batson forbids the strike even when it rests on a belief that the juror, because of race, would be partial to the defendant.¹⁵ The reason is that the guarantee would mean nothing if a State could exclude jurors on assumptions that arise solely from their race. The Court reasoned that the Clause forbids striking Black veniremen on the assumption that they will be biased simply because the defendant is Black, just as it forbids excluding them from the venire on the assumption that they are unqualified.¹⁶ The evidentiary half moves the proof into the courtroom where the strikes happen. The trial judge watches the venire being questioned and sees which jurors the prosecutor removes, so the pattern of strikes and the prosecutor's questions during voir dire are already before the court, and no showing about other trials is needed.¹⁷

The State in Batson argued that this holding would gut the peremptory challenge. The Court answered that the practice had shown the challenge may be, and at times has been, used to discriminate against Black jurors, and that public respect for the criminal justice system is strengthened when no citizen is disqualified from jury service because of race.¹⁸ Peremptories otherwise remain what they were: a side still need give no reason for a strike unless the opponent first makes a prima facie showing that the strike was used to discriminate.¹⁹ The injury the rule addresses later came to be understood as reaching the excluded jurors and the community as well as the defendant, a view that explains the expansions taken up in a later section.²⁰

Students most often misread the rule as a guarantee of racial representation on the jury. The Court stated that a defendant has no right to a petit jury composed in whole or in part of persons of his own race; what the Clause guarantees is that the State will not deliberately exclude members of his race from the pool of potential jurors.²¹ The phrase to watch for in an exam stem is a jury that includes members of the defendant's race, because the rule promises no such outcome. The right protects a process, namely the decision about whom to remove and why, so the racial makeup that results from lawful strikes can come out any way. The venire rule taught earlier follows the same logic, since it tests the pool and not the twelve who are seated.

The second version of that pair is Batson itself. The prosecutor struck all four Black persons on the venire, the record showed no apparent nonracial reasons for the strikes, and the prosecutor offered no explanation, a combination that established a prima facie case, so the trial court erred in failing to require an explanation.²² Because the decision changed the law, the Court applied it to cases pending on direct review or not yet final, and Griffith v. Kentucky later confirmed that the rule applies retroactively even though it broke sharply from Swain.²³ Batson also supplied a three-step procedure for resolving an objection to a strike, covering the objection, the response, and the ruling, and the next section takes up each step in order.²⁴