Concept

The Three-Step Batson Test

Impartial jury and Batson challenges

The Three-Step Batson Test

Batson did more than forbid race-based strikes. It also supplied a fixed procedure for deciding whether a given strike was race-based, and that procedure is the framework for any objection to a peremptory challenge.¹ The procedure has three steps. At the first, the objecting party must show circumstances that raise an inference that the strike was made on account of race. At the second, the party who made the strike must come forward with a neutral explanation for it. At the third, the judge decides whether the objecting party has proved purposeful discrimination.² The framework applies whichever side exercised the challenge, a point developed later in this chapter, and the sections that follow take each step in turn.

What sets this procedure apart from an ordinary dispute is the way the burdens travel. The objecting party carries the burden at the start. When that party makes the step-one showing, the burden moves to the striking party, but it is only a burden of production, meaning a duty to come forward with a reason and not a duty to convince anyone; the reason must be neutral on its face, and it need not be persuasive.³ At step three the burden of persuasion, the duty to convince the judge that race rather than the stated reason drove the strike, rests on the opponent of the strike.⁴ That burden never leaves the objecting party, so the ruling at step three is a finding about the striker's actual intent.

The allocation has two parts, and each part has its own reason. Production moves to the striking party at step two because that party alone knows why the juror was removed. The objector can observe the pattern of strikes and the questions asked on voir dire but cannot observe the thinking behind them, and a rule that required the objector to prove motive before hearing any explanation would demand proof the objector has no way to gather. Persuasion stays with the objector because the claim is an equal protection claim, and equal protection reaches only purposeful discrimination.⁵ A rule presuming discrimination whenever a strike drew an objection would also destroy the peremptory challenge's character as a strike that needs no stated reason, since every strike would then have to be defended. Placing the duty to explain after a threshold showing keeps that character intact in the ordinary case, and it lets the threshold stay low, because passing step two costs the striking party only the statement of one neutral reason.

The sequence will look familiar to anyone who has studied employment discrimination. In McDonnell Douglas Corp. v. Green, a Title VII case, the Court required the complainant to carry the initial burden of a prima facie case, then required the employer to articulate a legitimate, nondiscriminatory reason for its decision, and finally gave the complainant a fair opportunity to show that the stated reason was a pretext.⁶ The two settings share a design problem: the party accused of discrimination is the only one who knows the real reason for the decision, and the law has to bring that reason into the open without presuming guilt. In both, the middle step asks for a reason and the last step asks whether the reason is the true one. The parallel works as a memory aid; the governing law for jury strikes remains Batson and the cases applying it.

Exam Analysis Steps

Because each step has a different actor and a different burden, the framework is best run as three questions asked in order, and the inquiry can end at any of them. The steps are these:

Ask whether the objecting party has pointed to circumstances, such as a pattern of strikes or the prosecutor's questions and comments on voir dire, that raise an inference of race-based striking; the showing is modest, because the objector need not show that discrimination was more likely than not, and if it is missing the striking party need not explain.⁷
Ask whether the striking party has come forward with an explanation based on something other than the juror's race, remembering that a bare denial of bad motive does not suffice and that the explanation need not be persuasive, or even minimally persuasive.⁸
Ask whether the objecting party has persuaded the judge that the stated reason is a pretext, meaning a cover for the real reason, so that the strike amounted to purposeful discrimination, with the burden of persuasion resting on the opponent of the strike.⁹

The step that students most often misread is the second. Because the burden is described as shifting to the striking party, it is tempting to conclude that the striker must then prove the strike was innocent. The burden that moves is only a burden of production, so once the striker states a neutral reason the objector is back at the center of the analysis and must show that the reason is not the real one.¹⁰ When an exam stem reports that the striker's reason was weak or unconvincing, the weakness alone does not end the inquiry at step two. Implausibility becomes relevant at step three, where a justification that is implausible or fantastic is more likely to be found pretextual.¹¹

Hypothetical Illustration

A Black defendant is tried for robbery. The prosecutor uses peremptory challenges on three of the four Black prospective jurors, and defense counsel objects, pointing to that pattern. The judge finds that the pattern raises an inference of discrimination, so step one is satisfied and the prosecutor must explain. The prosecutor answers that each of the three gave responses on voir dire showing distrust of police witnesses. Those reasons are neutral, and defense counsel points to no seated juror of another race who gave similar responses, so the judge credits the explanation and overrules the objection. The objector carried the burden of persuasion and did not meet it. Alter only the prosecutor's answer at step two, so that the prosecutor says Black jurors tend to side with Black defendants. That reason rests on race itself, so it is not neutral, the strikes fail at step two, and the judge never reaches the question of credibility at step three.

Step One: Prima Facie Case

The first question in any objection under Batson v. Kentucky is whether the objecting party has said enough to require the other side to explain a strike. That showing is called a prima facie case, meaning a showing that supports the inference the objector alleges, here that a peremptory strike was made on account of race, and that calls for an answer if nothing is offered in reply.¹³ The operative word is inference. At this point the judge is not deciding that the strike was discriminatory, only that the circumstances raise a question the striking party must answer, and the answer comes at step two. A judge who tried to resolve intent at step one would be ruling on motive before hearing the one thing most informative about motive, namely the reason the striker gives.

Exam Analysis Steps

Because each component of the showing builds on the one before it, the showing is best run as three questions asked in order. The steps are these:

Ask whether the strikes removed members of a cognizable racial group from the venire, meaning a group the law treats as distinct for equal protection purposes, which in Batson itself was the defendant's own race.¹⁴
Recognize that peremptory challenges are a selection practice that permits those inclined to discriminate to do so, which lets the objector begin from the nature of the device without direct proof of the striker's motive.¹⁵
Ask whether those facts, together with any other relevant circumstances, such as a pattern of strikes or the striker's questions and statements on voir dire, raise an inference that the strikes were made on account of race.¹⁶

The second component explains how an objector can get started at all. A peremptory challenge comes with no stated reason, so the bare fact of a strike reveals nothing about why it was made, and an objector required to prove motive at the outset would be asked for evidence that exists only in the striker's mind. The trial judge supplies what the objector cannot. The whole selection unfolds in front of the judge, who can see whether one strike belongs to a pattern and can weigh its significance against the makeup of the venire, since the strike of a Black juror means something different on a venire that is mostly Black than on one that is mostly white.¹⁷ The requirement in the first component that the struck jurors share the defendant's race describes the facts of Batson and has not survived as a limit, because a later decision allows a defendant to object to strikes of jurors of another race.¹⁸ The framework also reaches strikes based on ethnicity and gender, and both extensions are taken up in the later section on the reach of the doctrine.¹⁹

What counts as a relevant circumstance is left open on purpose. Batson offered two illustrations: a pattern of strikes against Black jurors on the particular venire, and the prosecutor's questions and statements during voir dire and in exercising challenges, either of which may support or refute an inference of discriminatory purpose.²⁰ The Court described these as illustrations only and trusted trial judges, who supervise voir dire, to decide whether the circumstances create a prima facie case.²¹ The Court has since confirmed that a party may present statistical comparisons of the strikes used against Black and white prospective jurors in the case, and evidence that the prosecutor questioned Black and white prospective jurors differently.²² Statistics are one route and not the only one, since within the defendant's own case the questions asked on voir dire or the pattern of strikes may by themselves support the inference.²³ The objector is not required to prove anything about the prosecutor's conduct in other trials, though the State's history of strikes in past cases may be offered as one more relevant circumstance.²⁴ The same all-circumstances approach governs when a litigant in a civil case objects to an opponent's strikes, as Edmonson v. Leesville Concrete Co. held.²⁵

The strength of the showing required is modest, and Johnson v. California clarified the standard.²⁶ The objector need only present evidence that raises an inference of discriminatory purpose, and need not persuade the judge that the strike was more likely than not the product of purposeful discrimination.²⁷ The reason is that a preponderance standard at step one would merge the first step into the third. The objector would have to prove intent before the striker had said a word, which is the very demand the burden-shifting structure exists to avoid. Step one decides only whether the striker must give a reason, and since giving one costs little while the reason is known only to the striker, the law can afford a low entry price. The Title VII prima facie case in McDonnell Douglas Corp. v. Green is a comparable threshold showing that moves the burden to the other side, but it is built from four fixed facts, whereas step one here has no fixed list beyond the three components above, so the relevant circumstances do most of the work.²⁸

Two corollaries follow about numbers. In Johnson the prosecutor removed all three Black prospective jurors, and that was enough.²⁹ The seating of some Black jurors is no bar to a prima facie case, and no minimum number or percentage of struck jurors is required, since a strike of even one prospective juror violates the Constitution when discriminatory purpose drives it.³⁰ Each corollary guards against an easy evasion. If seating one juror of the group defeated the showing, a prosecutor could strike every other member of the group and point to the lone survivor as proof of good faith, and if the showing demanded some minimum number of strikes, the first few discriminatory strikes at every trial would be immune from inquiry. Because equal protection runs to each juror who is excluded, the question at step one is whether the circumstances point to race, and the count of affected jurors does not decide it.

The two poles can now be set side by side. In Batson the prosecutor struck all four Black persons on the venire, the record disclosed no apparent nonracial reasons for the strikes, and the prosecutor offered no explanation; those facts together established a prima facie case, and the trial court erred by failing to require an explanation.³¹ The absence of any apparent nonracial reason belongs among the relevant circumstances, because a strike that the record already explains gives the judge nothing from which to infer race.

Hypothetical Illustration

A Black defendant is tried for burglary, and the venire includes one Black prospective juror. During voir dire that juror reveals a close friendship with the defendant's sibling, and the prosecutor strikes the juror immediately afterward. Defense counsel objects on racial grounds but points to nothing else: no pattern, no unusual questioning, no remark about race. The record itself supplies an apparent nonracial reason for the strike, so the circumstances raise no inference of discrimination, step one fails, and the prosecutor need not explain. Change the facts so that the juror discloses no such tie, the prosecutor questions the juror at length about matters unrelated to the case while asking white jurors nothing comparable, and the strike follows. The number of strikes is still one, but the disparate questioning and the absence of any apparent reason now raise an inference, and the prosecutor must offer a neutral explanation. The variable that moved the answer is whether the circumstances point toward race, and the number of strikes did not move it.

Because a prima facie ruling sounds like a finding of guilt, students often carry its result into the final answer. A ruling that the objector has made a prima facie case requires the striking party to come forward with a neutral explanation, and the judge then has the duty of deciding whether purposeful discrimination has been established.³² The error to avoid is demanding proof that discrimination probably occurred before the striker has spoken, since the only question at this step is whether an inference arises. A stem that reports a pattern of strikes or a suspicious line of questioning is describing the kind of circumstances that can carry the objector past step one.³³

Step Two: Neutral Explanation

Once the judge finds that the objector has made a prima facie case, the striking party must come forward with a neutral explanation for the strikes, and the work of this step is deciding what counts as one. A neutral explanation is a reason based on something other than the juror's race, and it must relate to the particular case being tried.³⁵ The demand is deliberately light. The explanation need not rise to the level that would justify a challenge for cause, and it need not be persuasive or even plausible at this stage, so a weak reason that says nothing about race still satisfies step two and sends the inquiry on to step three.³⁶

Two features of the peremptory challenge explain why the burden is set so low. A peremptory strike has traditionally required no justification at all, and counsel often act on an impression of a juror's manner that is hard to put into words.³⁷ If step two demanded cause-level justification, every peremptory would have to be defended as a challenge for cause, and the device would disappear. The Court acknowledged that requiring an explanation limits the full peremptory character of the challenge in some cases, and it drew the line short of cause.³⁸ The light burden also fits what the step is for. Only the striker knows why the strike was made, so the step pulls that reason onto the record, where the judge can test it at step three. The Title VII framework in McDonnell Douglas Corp. v. Green has a comparable middle step, in which the employer need only articulate a legitimate, nondiscriminatory reason, and the employer's reliance on the complainant's part in an unlawful stall-in at its plant was enough to answer the prima facie case.³⁹

The low burden still excludes some answers, and the first to go is the assumption that jurors of the defendant's race will favor the defendant. In Batson v. Kentucky the Court held that a prosecutor may not rebut a prima facie case by saying that jurors of the defendant's race were struck on an assumption, or an intuitive judgment, that they would be partial to the defendant because of their shared race.⁴⁰ The Court reasoned from the venire cases: the Equal Protection Clause forbids excluding Black persons from the venire on the assumption that they are unqualified as a group, and it equally forbids striking them on the assumption that they will be biased simply because the defendant is Black. Such an explanation concedes the charge, because it names the juror's race as the cause of the strike and only attaches a prediction about behavior to that race. A reason is neutral only if it turns on something about this juror or this case that does not run through the juror's race.

A bare denial fails for a different reason. The prosecutor may not rebut the prima facie case merely by denying a discriminatory motive or affirming good faith in making individual selections.⁴¹ The incentive problem is plain. Any striker who has just been accused will say the strike was innocent, so the statement gives the judge no information the judge did not already have, and the prima facie case exists precisely because the circumstances raised a doubt that such assurances cannot settle. If the assurance were accepted, the Equal Protection Clause would, in the Court's words, be "but a vain and illusory requirement."⁴² Step two therefore asks for a reason, meaning a fact about the juror or the case that the judge can examine, in place of an assurance about the striker's character.

The third limit concerns timing. The explanation is necessarily given after the strike, since the objection prompts it, so the requirement is that it report the reason the striker actually entertained when exercising the challenge. A justification devised afterward, including one supplied by a reviewing court, does not count.⁴³ The reason is that step three asks whether the stated reason is the genuine one. If a neutral reason could be borrowed from the juror's record after the fact, any strike could be defended by locating some neutral feature in that record, and the genuineness inquiry would have nothing to test.

What suffices is any reason that refers to something other than race, however modest. In Purkett v. Elem the Court held that the explanation need not be even minimally persuasive, provided it is the real reason and no pretext for race. A strike justified by a juror's long hair and beard shows how little the step demands, since hair length has no bearing on fitness to try a case and yet makes no reference to race.⁴⁴ A juror's demeanor is likewise an acceptable neutral ground.⁴⁵ The oddity of such a reason is evidence for the judge to weigh at step three, and it plays no part in step two.

The explanation in Hernandez v. New York falls on the same side of the line. The prosecutor struck bilingual jurors who might have difficulty accepting the interpreter's rendition of Spanish-language testimony, and the plurality found that the strikes rested neither on an intent to exclude Latino or bilingual jurors nor on stereotypes about them.⁴⁶ What separates this reason from the shared-race assumption condemned in Batson is the thing the reason is about. The Hernandez reason concerned what a particular juror might do with particular evidence in the trial, while the Batson assumption treats the juror's race as itself predicting how the juror will vote. The plurality added that the question is whether discriminatory intent was present, so a reason is not disqualified at step two merely because it falls more heavily on one group.⁴⁷ Disproportionate impact keeps a role later, since at step three the judge may treat it as evidence that the stated reason is a pretext.⁴⁸

Exam Analysis Steps

Because the explanation must clear several separate filters, step two is best run as four questions asked in order. The steps are these:

Ask whether the striking party has stated an actual reason for the strike, since a denial of bad motive or an assertion of good faith supplies none.⁴⁹
Ask whether the reason depends on an assumption about how jurors of a particular race will behave, such as a belief that jurors of the defendant's race will favor the defendant, because a reason built on that assumption is not neutral.⁵⁰
Ask whether the reason rests on something other than race and relates to the juror or the case, recognizing that it may be weak, odd, or unconvincing and still pass.⁵¹
Ask whether the reason is the one the striker actually held when exercising the strike, and not one found afterward by someone else, including the court.⁵²

Students most often go wrong here by measuring the explanation against whether it is convincing. A neutral reason that is unconvincing still passes step two, because persuasiveness is evidence on the question that step three decides, namely whether the reason is the real one. The burden that moved to the striker at this step was only a burden of production, and the burden of persuasion stays with the opponent of the strike throughout.⁵³ An exam stem in which the striker gives an odd but race-free reason therefore proceeds to step three, while a stem in which the striker relies on a prediction drawn from the juror's race, or merely denies bias, ends at step two.

Step Three: Purposeful Discrimination

Once the striking party has offered a neutral reason at step two, the judge must decide whether to believe it. Step three asks whether the objecting party has established purposeful discrimination. In practice that means deciding whether the stated reason is the genuine reason for the strike or a pretext, which is a cover story offered in place of the real motive.⁵⁵ The question is one of fact about the striker's intent, so the judge may consider every relevant circumstance, including how plausible the explanation is and what effect the strikes had on jurors of one race.⁵⁶ The Court has framed the ultimate inquiry as whether the State was "motivated in substantial part by discriminatory intent."⁵⁷ The striker's only task at step two was to produce a reason, so the burden of persuasion never moved, and it rests throughout with the opponent of the strike.⁵⁸

The focus on intent comes from the equal protection source of the rule. Ordinary equal protection doctrine asks whether the decisionmaker acted because of an adverse effect on a racial group, and awareness that the action would fall on that group is not enough.⁵⁹ Disproportionate impact is relevant and can be a starting point, but proof of discriminatory purpose is still required.⁶⁰ The same holds at step three. A reason that happens to remove more Black jurors than white jurors is not improper for that reason alone, yet the judge may treat the disproportionate effect as evidence that the stated reason is a pretext.⁶¹ What matters is therefore evidence about the striker's real motive, and the Court has identified the kinds of evidence that can supply it.

Only the striker knows the real reason, so the objector has to build the case from circumstances the judge can observe and test. The Court in Flowers v. Mississippi collected the kinds of evidence that can show a prosecutor's strikes were race-based, and a given challenge may rest on any of them.⁶²

Statistical evidence about the prosecutor's strikes of Black and white prospective jurors in this case.
Evidence that the prosecutor questioned and investigated Black and white prospective jurors differently.
Side-by-side comparisons of struck Black jurors and unstruck white jurors.
Misrepresentations of the record when the prosecutor defends the strikes at the hearing.
The history of the State's peremptory strikes in past cases.
Any other circumstance that bears on racial discrimination.

Each kind of evidence tests the stated reason against something other than the striker's own word, and that is the function the list serves. A prosecutor can attach a neutral label to nearly any strike, so the label tells the judge little, and objective anchors fill the gap. Strike statistics from this trial show whether the pattern of removals tracks race, and disparate questioning shows whether the prosecutor probed jurors of one race for grounds of removal that were never explored for others. A misstatement of the record at the hearing suggests that the prosecutor is reaching for reasons the facts do not support. The history of past strikes is relevant too, although a defendant no longer has to prove it, since Batson rejected the earlier insistence on a history of discriminatory strikes before a claim could succeed.⁶³

The side-by-side comparison is a particularly revealing anchor because it measures the stated reason against the striker's own conduct. A reason is a claim about what separated the struck juror from the jurors who were kept. If a juror of another race who shares the feature was seated, the feature cannot have been what separated them, and the remaining difference is race. For that reason a court compares the neutral reason with the prosecutor's actual practice in striking and accepting jurors of different races to whom the reason might apply.⁶⁴ In Snyder v. Louisiana the prosecutor struck a Black college student because his student-teaching obligation might push him toward a compromise verdict, but white jurors who voiced similar pressing needs were not struck, and the reason was treated as a pretext that should not have sustained the strike.⁶⁵ The comparison is not peculiar to jury selection. After the employer in McDonnell Douglas Corp. v. Green gave a legitimate reason for refusing to rehire the complainant, the Court required that the complainant receive a full and fair opportunity to show pretext, and it singled out evidence that white employees who committed acts of comparable seriousness were retained or rehired.⁶⁶

The opposite result follows when the judge, having heard the explanation, believes it. In Rice v. Collins the prosecutor said that a stricken juror was young, had no ties to the community, and was disrespectful. The trial judge credited the explanation, and the strike was upheld because the reason was the genuine one.⁶⁷ Snyder and Rice mark the two poles of step three. In Snyder the explanation collapsed when it was set beside the prosecutor's treatment of white jurors, while in Rice the explanation rested on matters such as respect and community ties that the judge assessed and found sincere. What separates the cases is what the reason was tested against and who was in a position to test it.

The deference owed to the trial judge has a functional reason. The whole of jury selection unfolds in front of the judge, who has the entire venire in view and can tell whether a challenge to one juror belongs to a pattern and whether its significance shifts with the racial makeup of the panel.⁶⁸ A reviewing court has only a transcript, which cannot convey a lawyer's tone or a juror's manner. Batson accordingly directed that the trial court's findings on discriminatory intent receive great deference on appeal, since those findings largely turn on an evaluation of credibility.⁶⁹

Deference does not make the trial judge's ruling final. The Flowers factors can show a violation so strongly that an appellate court must reverse a trial court that accepted the prosecutor's explanation.⁷⁰ In Miller-El v. Dretke the Court found reversible error where the trial court accepted pretextual explanations: the prosecutor struck ten of eleven qualified Black panel members, and the struck Black panelists closely resembled retained white ones, which is comparison evidence at work.⁷¹ In Foster v. Chatman the prosecutor struck all four qualified Black prospective jurors, gave shifting explanations, misrepresented the record, and kept a file that marked Black jurors with the letter "B," and the Court found two of the strikes motivated by discriminatory intent.⁷² In Flowers itself the Court emphasized the history of the State's strikes and the disparate questioning of Black and white jurors.⁷³

Two errors recur when students apply this step. The first is treating a neutral explanation as the end of the inquiry, since passing step two does not win step three: a reason can be neutral on its face and still be false, and the judge must still decide whether it is the real one.⁷⁴ The second is treating the trial judge's ruling as either unreviewable or open to free re-weighing on appeal, when it receives great deference that strong evidence of the Flowers kind can overcome.⁷⁵ A stem that reports unequal treatment of similar white and Black jurors, shifting explanations, or notes keyed to race points toward a finding of pretext. A stem that reports an odd reason applied evenly and credited by the judge on observed demeanor points toward the strike standing.

Key Exam Rule

Step three: purposeful discrimination

After a neutral explanation is given, the trial judge decides whether the stated reason is the genuine reason for the strike or a pretext, which means deciding whether the strike was motivated in substantial part by discriminatory intent, and the burden of persuasion stays with the opponent of the strike throughout.⁷⁶ The judge weighs all relevant circumstances, including statistics on strikes of Black and white jurors, disparate questioning, side-by-side comparison with unstruck white jurors, misrepresentations of the record, the State's history of strikes, and the implausibility or disproportionate effect of the reason, and the finding receives great deference on appeal unless that evidence so strongly shows a violation that reversal is required.⁷⁷