The Batson Challenge: A Due Process Staple or Trial Court Quagmire?

A peremptory challenge is “[o]ne of a limited number of special jury challenges given to each party before trial. [It] results in the exclusion of a potential juror without the need for any reason or explanation.”[1] Peremptory challenges were developed to allow “both defense and prosecution to eliminate jurors” from the pool that they felt would have an adverse effect on their case.[2] Accordingly, United States Supreme Court precedent has been established that prohibits peremptory strikes based on race.[3] However, this precedent has not ended the debate on race-based peremptory strikes.[4] Both prosecution and defense may still strike a juror based on race if they “can come up with a ‘race neutral’ reason for doing” so.[5] A race neutral reason for striking a juror may be easy to proffer.[6] Even still, defense attorneys often advocate for the importance of preserving peremptory strikes to defend their clients from biased jurors.[7]

As the recent Supreme Court case Flowers v. Mississippi demonstrates, prosecutorial misconduct still results in peremptory strikes based on race.[8] In Flowers, the Supreme Court held that the trial court clearly erred “in concluding that the State’s peremptory strike of [a] black prospective juror . . . was not motivated in substantial part by discriminatory intent” because “the State’s pattern of striking black prospective jurors persisted from Flowers’ first trial through Flowers’ sixth trial.”[9] In reaching the majority conclusion, Justice Kavanaugh noted:

“In the six trials combined, the State struck 41 of the 42 black prospective jurors it could have struck. At the sixth trial, the State struck five of six. At the sixth trial, moreover, the State engaged in dramatically disparate questioning of black and white prospective jurors. And it engaged in disparate treatment of black and white prospective jurors, in particular by striking black prospective juror Carolyn Wright.”[10]

The State prosecutor proffered reasons for striking Carolyn Wright that applied to other white prospective jurors and allowed such “similarly situated white jurors to serve on the jury.”[11]

However, Flowers represents an extreme case mired with six trials worth of prosecutorial misconduct.[12] Indeed, Flowers does not expand or create new protections for defendants at risk of discriminatory peremptory strikes.[13] Two Justices expressed the opinion that any one of the four facts mentioned by Justice Kavanaugh under a different context might be permissible.[14] If any one of the four facts in isolation were held permissible, should the current framework be expanded or abandoned to better protect defendants’ right to trial by an impartial jury?

In 1986, the Supreme Court expressly prohibited the use of peremptory challenges based on race in Batson v. Kentucky.[15] Subsequent Supreme Court precedent has held that Batson “applies to gender discrimination, to a criminal defendant’s peremptory strikes, and to civil cases.”[16] A Batson challenge alleges that an opposing party’s peremptory strike was based on race or gender.[17] Supreme Court precedent forbids even a single discriminatory peremptory strike.[18] Further, federal circuit courts and highest courts in several jurisdictions have held that the Constitution forbids a peremptory strike based even partially on discriminatory animus.[19]

A three-step test has been developed to determine whether a discriminatory peremptory strike has occurred.[20] First, the challenging party must assert “a prima facie case [of discrimination] ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’”[21] Second, if the challenging party makes the threshold showing, “the burden shifts to the [non-challenging party] to come forward with a neutral explanation” that is “related to the particular case to be tried.”[22] “The [non-challenging party’s] explanation ‘need not rise to the level justifying exercise of a challenge for cause.’”[23] Further, the non-challenging party’s explanation need not be persuasive or even plausible.[24] However, the non-moving party must offer “a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’” for the strikes.[25] “Third, in light of the parties’ submissions, the trial court must determine whether the [challenging party] has shown purposeful discrimination.”[26] In all three steps taken together, the ultimate burden of proving purposeful discrimination never shifts from the challenging party.[27]

The Batson test has not been universally accepted as an effective method for preventing racial bias in jury selection.[28] The Civil Jury Project at NYU Law School argues that the Batson test has been unfruitful because courts have approached the issue with a poor understanding of how bias operates.[29] Instead, the Project contends that courts must approach the problem of discriminatory peremptory strikes through science and methodology.[30] The Project goes on to explain that “biases are actually habits of thought or patterns of thinking that include preferences, inclinations, or just impressions.”[31] Further, the Project illustrates that it is very difficult for a juror to control his or her bias even if they are aware of it.[32] This misunderstanding of bias has a large impact on the selection of jury members.[33] Thus, the Project provides several recommendations for attorneys to avoid racial discrimination in jury selection.[34]

In City of Seattle v. Erickson, the Washington State Supreme Court questioned the adequacy of the Batson test.[35]The court went on to amend the Batson framework by holding that “the peremptory strike of a juror who is the only member of a cognizable racial group constitutes a prima facie showing of racial discrimination requiring a full Batson analysis by the trial court.”[36] In a concurring opinion, Justice Stephens referenced Proposed General Rule 37, which outlines a new procedure for evaluating race-neutral reasons for a peremptory challenge.[37] The proposed rule “makes it easier to stop juror removals rooted in implicit racial bias by [prohibiting justifications] highly correlated with race,”[38] such as “‘a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling,’ or ‘not being a native English speaker.’”[39]

In seeking to end racial discrimination in jury selection, some have even gone as far as to “call for the elimination of peremptory challenges altogether.”[40]In a concurring opinion in Batson itself, Justice Marshall asserted that the goal of eliminating racial discrimination in the selection of juries “can be accomplished only by eliminating peremptory challenges entirely.”[41] Justice Marshall predicted that merely allowing defendants the opportunity to challenge peremptory strikes in individual cases would not end their illegitimate use because the peremptory strike must be flagrantly discriminatory to be prima facie, and trial courts cannot properly assess a prosecutor’s motives even when a prima facie case is established.[42] Thus, Justice Marshall concluded that “[t]he inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system.”[43]

Further, in a concurring opinion in Miller-El v. Dretke, Justice Breyer noted that “the law’s antidiscrimination command and a peremptory jury-selection system that permits or encourages the use of stereotypes work at cross-purposes,” and suggested that the Court “reconsider … the peremptory challenge system.[44] Justice Breyer bases this suggestion on the inherent difficulty of the Batson framework.[45] Further, Justice Breyer suggests that trial judges are simply not up to the task that Batson requires.[46] Thus, Justice Breyer concludes that it may be time to institute a jury system without peremptory strikes.[47]

Moreover, in a concurring opinion in Erickson, Washington State Supreme Court Justice Yu also calls for the elimination of peremptory challenges.[48] Justice Yu argues that appellate judicial opinions reviewing Batson are not effective in combating discriminatory peremptory strikes.[49] Thus, Justice Yu concludes that the jury system would be better protected from discriminatory animus by relying upon for cause strikes rather than peremptory strikes.[50]

These very difficulties Justice Marshall, Justice Breyer, and Justice Yu discussed were the centerfold of a recent study that examined “the effect of race on peremptory challenges and the reasons provided to justify strikes.”[51] The study found that while “[j]uror race influenced attorney and lay participants’ [peremptory] strikes…few participants mentioned race as a factor in their decision, instead citing other (nondiscriminatory) characteristics of the potential juror.”[52] Thus, the study ultimately found that “race-neutral reasons were readily provided as justification…even when race influenced peremptory challenges.”[53] These “findings are consistent with the psychology of social judgment, social desirability and unconscious bias.”[54]

As discussed above, peremptory strikes have played an essential role in the jury selection process and in the trial strategies of both prosecution and defense.[55] Unfortunately, trial attorneys historically have incorporated strategies in utilizing peremptory strikes that rely on racial stereotypes and discrimination.[56] Fortunately, the United States Supreme Court has responded by prohibiting peremptory strikes based upon race.[57] The Batson challenge has since been expanded and distinguished by a multitude of Supreme Court precedent, federal circuit court precedent, and state supreme court precedent.[58] Nevertheless, racial discrimination is an all too common occurrence in jury selection today.[59] Appellate courts across the country have responded by trying to alter the Batson rule case by case.[60] Some courts and scholars have proposed significant modification to the Batson test.[61] Whether the Court chooses to modify the process or abolish peremptory strikes altogether, the Court must base its decision on science and methodology.[62] Future research should seek to inform the judiciary on the effectiveness of peremptory strikes, the impact of bias on juror decision-making, and the ability of judges to evaluate and distinguish juror and attorney biases.[63]

[1] LEGAL INFO. INST., (last visited Mar. 28, 2020).

[2] See Toni Messina, Criminally Yours: Don’t Eliminate Peremptory Challenges, ABOVE THE  LAW, (Nov. 9, 2015, 4:46 PM),

[3] See id.; see also Batson v. Kentucky, 476 U.S. 79, 89 (1986).

[4] See, e.g., Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 271-73 (2005); City of Seattle v. Erickson, 188 Wash. 2d 721, 723 (Wash. 2017); Richard Gabriel, Understanding Bias: Preserving Peremptory Challenges, Preventing their Discriminatory Use, and Providing Fairer and More Impartial Juries, CIV. JURY PROJECT N.Y.U., (last visited Mar. 28, 2020).

[5] Messina, supra note 2.

[6] See id. (“The juror wouldn’t look me in the eye. He smiled at the defendant. He has a brother who was arrested. He’s skeptical of police because they’ve stopped him without reason in the past. [This last reason wipes out a lot of potential black jurors.]”).

[7] See id. (“Why? Because there are a lot of potential jurors out there who won’t admit to prejudice, or don’t even know they have it. What prejudice is to one person is just day-in-the-life for another. It’s a concept open to a lot of interpretation.”).

[8] Flowers v. Mississippi, 139 S. Ct. 2228, 2234-37 (2019).

[9] Id. at 2251.

[10] Id.

[11] Id. at 2244.

[12] Id. at 2252 (“But this is not an ordinary case, and the jury selection process cannot be analyzed as if it were. In light of all that had gone before, it was risky for the case to be tried once again by the same prosecutor in Montgomery County.”) (Alito, J., concurring).

[13] Id. at 2251 (“In reaching [our] conclusion, we break no new legal ground. We simply enforce and reinforce Batsonby applying it to the extraordinary facts of this case.”).

[14] Id. at 2250 (“In a different context, the Wright strike might be deemed permissible.”); id. at 2252 (“Were it not for the unique combinations of circumstances present here, I would have no trouble affirming the decision of the Supreme Court of Mississippi…”) (Alito, J., concurring).

[15] See Batson, 476 U.S. at 89 (“[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.”).

[16] Flowers, 139 S. Ct. at 2243 (“Moreover, Batson now applies to gender discrimination, to a criminal defendant’s peremptory strikes, and to civil cases.”).

[17] See Batson, 476 U.S. at 89; J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994) (“We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.”).

[18] See Snyder v. Louisiana, 128 S. Ct. 1203, 1208 (2008) (“[T]he Constitution forbids striking even a single prospective juror for a discriminatory purpose.”) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)).

[19] See Tursio v. United States, 634 A.2d 1205, 1213 n.7 (D.C. 1993) (“[R]ace is an impermissible factor, even if a minor one, in exercising peremptory strikes.”); see also Kesser v. Cambra, 392 F.3d 327, 337-38 (9th Cir. 2004); Howard v. Senkowski, 986 F.2d 24, 30 (2d Cir. 1993); Smith v. Sold D. Adler Realty Co., 436 F.2d 344, 350 (7th Cir. 1971); McCormick v. State, 803 N.E.2d 1108, 1112-13 (Ind. 2004).

[20] See Batson, 476 U.S. at 94-98; see also Rice v. Collins, 546 U.S. 333, 338 (2006).

[21] Johnson v. California, 545 U.S. 162, 168 (2005) (quoting Batson, 476 U.S. at 93-94).

[22] Batson, 476 U.S. at 97-98.

[23] Smith v. United States, 966 A.2d 367, 374 (D.C. 2009) (quoting Batson, 476 U.S. at 97).

[24] See Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (“The second step of this process does not demand an explanation that is persuasive or even plausible.”).

[25] Batson, 476 U.S. at 98 n.20 (internal quotation marks and citation omitted).

[26] Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 328-29 (2003).

[27] See Rice, 546 U.S. at 338 (“…[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.”) (quoting Purkett, 514 U.S. at 767-68).

[28] See, e.g., Miller-El II, 545 U.S. at 271-73; Batson, 476 U.S. at 102-03; Erickson, 188 Wash. 2d at 723; Gabriel, supra note 4.

[29] See Gabriel, supra note 4 (“However well-intentioned the Courts are in establishing these procedures to prevent racial bias, they seek to remedy the problem with rules rather than processes.”).

[30] See id. (“If we are to truly address the issue of bias and look at meaningful ways to reform the use of challenges, we need to study, analyze, and address the issue in a scientific and methodological manner.”).

[31] See id.

[32] See id.

[33] See id. (“Voir dire is the only time an attorney has to better understand the citizens that will be judging his or her case and client, yet conducting this important procedure is covered only briefly in law school and rarely practiced.”).

[34] See id.

[35] See Erickson, 188 Wash. 2d at 723 (“Batson guarantees a jury selection process free from racial animus. Yet, we have noted that our Batson protections are not robust enough to effectively combat racial discrimination during jury selection.”).

[36] Id. at 724.

[37] See id. at 738.

[38] Ronald Wright, Yes, Jury Selection Is as Racist as You Think. Now We Have Proof., N.Y. TIMES, (Dec. 4, 2014),

[39] Erickson, 188 Wash. 2d at 738.

[40] Gabriel, supra note 4.

[41] Batson, 476 U.S. at 102-03.

[42] See id. at 105-06.

[43] See id. at 107.

[44] Miller-El II, 545 U.S. at 271-73.

[45] See id. at 267 (“The complexity of this process reflects the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a peremptory challenge.”) (Breyer, J., concurring).

[46] See id. at 267-68 (“And most importantly, at step three, Batson asks judges to engage in the awkward, sometime[s] hopeless, task of second-guessing a prosecutor’s instinctive judgment – the underlying basis for which may be invisible even to the prosecutor exercising the challenge.”).

[47] See id. at 272-73 (“Finally, a jury system without peremptories is no longer unthinkable. Members of the legal profession have begun serious consideration of that possibility… And, of course, the right to a jury free of discriminatory taint is constitutionally protected – the right to use peremptory challenges is not.”).

[48] See Erickson, 188 Wash. 2d at 740 (“In my view, the basic framework of Batson does not work, and the record in this case demonstrates the awkwardness and impracticability of the so-called Batson challenge. Thus, I now join Justice Gonzalez in calling for the complete abolishment of peremptory challenges.”).

[49] See id. (“Too many qualified persons are being excluded from jury service for no reason at all, and tinkering with court rules or issuing incremental decisions a decade at a time are unsatisfactory solutions.”).

[50] See id. at 741 (“Our system of jury selection provides a meaningful method for any party to remove a juror ‘for cause’ when there is a showing that a particular juror cannot be fair or impartial.”).

[51] Jennifer K. Robbennolt & Matthew Taksin, Jury Selection, Peremptory Challenges, and Discrimination, 40 MONITOR ON PSYCH. 18 (2009),

[52] See id.

[53] See id.

[54] Id.

[55] See Messina, supra note 2.

[56]See Wright, supra note 38.

[57] See Batson, 476 U.S. at 89, 100.

[58] See, e.g., Flowers, 139 S. Ct. 2228; Snyder, 128 S. Ct. at 1208; Kesser, 392 F.3d at 337-38; Vasquez-Lopez, 22 F.3d at 902; Howard, 986 F.2d at 30; Sold D. Adler Realty Co., 436 F.2d at 350; Erickson, 188 Wash. 2d at 723; McCormick, 803 N.E.2d at 1112-13; Tursio, 634 A.2d at 1213 n.7.

[59] Robbennolt & Taksin, supra note 51.

[60] See id.

[61] See, e.g., Erickson, 188 Wash. 2d at 723; Gabriel, supra note 4.

[62] See, e.g., Miller-El II, 545 U.S. at 271-73; Batson, 476 U.S. at 102-03; Erickson, 188 Wash. 2d at 740; Gabriel, supra note 4.

[63] See Gabriel, supra note 4.

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