Batson in Practice

Batson in Practice

The three steps taught above describe what a court must do when a strike is challenged. They say less about what the procedure accomplishes in a real courtroom, and that gap is the subject here. This section is context for the exam rule and leaves the rule itself where the earlier sections put it.

The gap begins at step two, where the standard is deliberately light. The striking party must offer a reason that is neutral as to race, and the reason need not be strong enough to support a challenge for cause or even minimally persuasive, so long as it is the real reason and not a pretext.¹ In Purkett v. Elem, a prosecutor's explanation that a juror had long hair and a beard satisfied the requirement even though hair length says nothing about fitness to serve.² The Court has described the reason as one that "need not be plausible, let alone persuasive."³ The standard is light for a structural reason. Peremptory challenges exist so that a lawyer can remove a juror suspected of partiality who will not admit it or does not recognize it, and a lawyer acting on instinct cannot always put that suspicion into words a judge would accept.⁴ If step two demanded a convincing reason, the judge would be reviewing each peremptory the way the judge reviews a challenge for cause, and the two kinds of challenge would merge.

The same lightness is the source of the practical criticism. Because step two asks only that a neutral-sounding reason be stated, a lawyer inclined to discriminate can choose any reason that sounds neutral, and the judge must then detect pretext from a bare record. Courts have accepted strikes of Black prospective jurors justified by alleged low education, living in a high-crime area, chewing gum, wearing sunglasses in court, and having a child out of wedlock.⁵ Critics conclude from this record that the procedure does little to end discrimination in jury selection.⁶ The doctrine still has force where the record supplies evidence of pretext. In Miller-El v. Dretke, peremptories removed ten of eleven qualified Black panel members, and the struck Black jurors closely resembled white jurors who were kept.⁷ In Foster v. Chatman, the explanations shifted, the record was misstated, and the prosecutor's file marked Black jurors with a "B," so the Court found discriminatory intent.⁸ The tools for such a showing include statistics, disparate questioning, side-by-side comparisons of struck and retained jurors, misstatements at the hearing, and the history of the office's strikes in other cases.⁹ Where none of that evidence exists, step three has little to work with.

The response to this weakness has taken two forms. The first is to abandon case-by-case review. Justice Marshall's concurrence in Batson itself argued that such review would prove illusory and that only abolishing peremptory challenges would end the discrimination.¹⁰ Justice Breyer later repeated the call in his concurrence in Miller-El, and the persistence of racial-bias claims has kept it alive.¹¹ The worry resembles a point Justice Douglas made about discretionary death-penalty statutes in Furman v. Georgia: a law that is neutral on its face can still violate equal protection in the way it is applied, and a regime that leaves selection to discretion invites that result.¹² Arizona acted on the abolition proposal in 2021, becoming the first state to prohibit peremptory challenges, and its chief justice described the change as reducing the opportunity for misuse of jury selection.¹³

The second response keeps peremptories and changes how judges evaluate them. Washington's General Rule 37, adopted in 2018, sets criteria for trial judges to consider when assessing a strike for bias, declares certain reasons "presumptively invalid," and requires that certain stock reasons be corroborated by the judge or opposing counsel.¹⁴ The rule works by giving step three an objective footing. A judge applying it no longer has to read a lawyer's mind, because some of the most common neutral-sounding reasons have been taken off the table. Abolition goes further and removes the discretion that makes the peremptory both useful and open to abuse, which is why the choice between reforming the procedure and ending the tool is contested.

On an exam, these developments change nothing about the analysis unless the stem names a specific jurisdiction's rule. Criticism of Batson is not a modification of Batson, and an answer that treats a reform proposal as the governing test misstates the law. When a stem reports a strike and an objection, run the three steps, and remember that a thin explanation at step two still satisfies step two if it is neutral, with the genuineness of the reason decided at step three.