Batson v. Kentucky, 476 U.S. 79 (1986), argued 12 Dec. 1985, decided 30 Apr. 1986 by vote of 7 to 2; Powell for the Court, White, Marshall, O'Connor, and Stevens (with Brennan) concurring, Burger and Rehnquist in dissent. Batson, a black man, was tried for second‐degree burglary and the receipt of stolen goods. The judge conducted the voir dire examination of the potential jurors, excused some of them for cause, and then permitted prosecution and defense to exercise their
peremptory challenges—six and nine respectively. The prosecutor's exercise of the peremptories removed all four black persons on the panel. Batson moved for a discharge of the jury, asserting that the removal of all of the black panelists violated his
Sixth and
Fourteenth Amendment rights to a jury drawn from a cross section of the community as well as his Fourteenth Amendment right to the
equal protection of the laws. The trial judge denied the motion and Batson was convicted on both counts. The Supreme Court of Kentucky denied Batson's appeal and affirmed the verdict. The U.S. Supreme Court reversed.
Ruling in favor of Batson, the Court placed substantial limits on the prosecutor's use of peremptory challenges. Overruling
Swain v. Alabama (1965) in part, the Court applied the equal protection principle to the exercise of peremptory challenges. For all practical purposes, it thereby transformed peremptory challenges into challenges for cause, even if the holding refers to a lesser (but undefined) standard to sustain a disputed peremptory challenge than would be required to support a challenge for cause. The
Batson Court's claim that it did not “undermine the contribution the [peremptory] challenge generally makes to the administrations of justice” (pp. 98–99) is entirely unconvincing.
The thrust of
Batson is not toward color‐blind but color‐conscious law, applying a racial test to the prosecutor's use of peremptory challenges. The ultimate effect of
Batson may even be the de facto introduction of racial quotas for trial juries since the racially disproportionate use of peremptories now may be attacked as constitutionally improper. Given the lack of standards for a successful rebuttal, the only safe use of peremptories will be racially proportionate to venire and or community makeup.
The Court failed to distinguish between the selection of the jury venire (where
representativeness is the chief concern) and the selection of the jury (where
impartiality must be the primary consideration). The Court also failed to distinguish between general and particular jury fitness. A person's general fitness to be a juror (to be included in the venire) is, indeed, not a matter of race. A person's suitability to serve on a particular jury, however, may well be related to race. It is not difficult to imagine a crime that so offends a particular social group that it must be feared that all of its members lack the impartiality of the proper juror. When exercising peremptory challenges, attorneys must be able to act upon this fear. To hold otherwise is to forfeit at least the
appearance of jury impartiality. Given that the
facts of jury impartiality cannot be known with certainty, the appearance of impartiality becomes a matter of extraordinary importance. All this the Court did not recognize (p. 97).
The use of peremptory challenges typically brings into conflict the goals of jury impartiality and jury representativeness. Until
Batson, this conflict was resolved in favor of impartiality, that is, the Court agreed that the essential nature of a peremptory challenge was found in its exercise without explanation, judicial inquiry, or control by the court.
Batson overturned Swain but pretended otherwise by taking the position that jury selection can meet both goals. Only Justice Thurgood
Marshall freely admitted that he regarded representativeness as more important than impartiality, and that this reevaluation, in fact, pointed toward the abolition of the traditional peremptory challenge.
Batson was limited in three ways. It applied only to the prosecution, only to criminal trials, and only to challenges in which the excluded juror was of the same race as the defendant. In Edmonson v. Leesville Concrete (1991), however, the Court held that a private litigant in a civil case could not exclude prospective jurors because of their race. The majority concluded that there was sufficient interaction between a court and the jury selection process to satisfy the
“state action” requirement. While this decision did not explicitly also extend the
Batson principle to either private defense lawyers or public defenders in criminal cases, the logic of Edmonson makes this result foreseeable if not inevitable. In
Powers v. Ohio (1991), the Court held that white defendants are entitled to new trials if convicted by juries from which blacks had been improperly excluded because of their race. Thus it now appears that
any racial exclusion in jury selection is likely to be held constitutionally unacceptable. In addition, there appears to be a substantial chance that the Court will apply the extended
Batson principles to gender‐based exclusions from jury service.
See also
Due Process, Substantive;
Race and Racism;
Trial by Jury.
Peter W. Sperlich
