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Amdt14.S1.4.1.4.2 Peremptory Challenges

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It has been established since Strauder v. West Virginia1 that exclusion of an identifiable racial or ethnic group from a grand jury2 that indicts a defendant or a from petit jury3 that tries him, or from both,4 denies a defendant of the excluded race equal protection and necessitates reversal of his conviction or dismissal of his indictment.5 Even if the defendant’s race differs from that of the excluded jurors, the Court held, the defendant has third-party standing to assert the rights of jurors excluded on the basis of race.6 Defendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection. People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion.7 Thus, persons may bring actions seeking affirmative relief to outlaw discrimination in jury selection, instead of depending on defendants to raise the issue.8

A prima facie case of deliberate and systematic exclusion is made when it is shown that no black citizens have served on juries for a period of years9 or when it is shown that the number of black jurors who served was grossly disproportionate to the percentage of black citizens eligible for jury service.10 Once this prima facie showing has been made, the burden is upon the jurisdiction to prove that it had not practiced discrimination; it is not adequate that jury selection officials testify under oath that they did not discriminate.11 Although the Court in connection with a showing of great disparities in the racial makeup of jurors called has voided certain practices that made discrimination easy to accomplish,12 it has not outlawed discretionary selection pursuant to general standards of educational attainment and character that can be administered fairly.13 Similarly, it declined to rule that African-Americans must be included on all-white jury commissions that administer the jury selection laws in some states.14

In Swain v. Alabama,15 African Americans regularly appeared on jury venires but no African American had actually served on a jury. It appeared that the absence was attributable to the action of the prosecutor in peremptorily challenging all potential African American jurors, but the Court refused to set aside the conviction. The use of peremptory challenges to exclude the African Americans in the particular case was permissible, the Court held, regardless of the prosecutor’s motive, although it indicated that the consistent use of such challenges to remove African Americans would be unconstitutional. Because the record did not disclose that the prosecution was responsible solely for the fact that no African American had ever served on a jury and that some exclusions were not the result of defense peremptory challenges, the defendant’s claims were rejected.

The Swain holding as to the evidentiary standard was overruled in Batson v. Kentucky, the Court ruling that a defendant may establish a prima facie case of purposeful [racial] discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s [own] trial.16 To rebut this showing, the prosecutor must articulate a neutral explanation related to the particular case, but the explanation need not rise to the level justifying exercise of a challenge for cause.17 In fact, [a]lthough the prosecutor must present a comprehensible reason, '[t]he [rebuttal] does not demand an explanation that is persuasive, or even plausible'; so long as the reason is not inherently discriminatory, it suffices.18 Such a rebuttal having been offered, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating 'the persuasiveness of the justification' proffered by the prosecutor, but the 'ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.'19 On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous,20 but, on more than one occasion, the Supreme Court has reversed trial courts' findings of no discriminatory intent.21 The Court has also extended Batson to apply to racially discriminatory use of peremptory challenges by private litigants in civil litigation,22 and by a defendant in a criminal case,23 the principal issue in these cases being the presence of state action, not the invalidity of purposeful racial discrimination.

Discrimination in the selection of grand jury foremen presents a closer question, the answer to which depends in part on the responsibilities of a foreman in the particular system challenged. Thus, the Court assumed without deciding that discrimination in selection of foremen for state grand juries would violate equal protection in a system in which the judge selected a foreman to serve as a thirteenth voting juror, and that foreman exercised significant powers.24 That situation was distinguished, however, in a due process challenge to the federal system, where the foreman’s responsibilities were essentially clerical and where the selection was from among the members of an already chosen jury.25

In McCleskey v. Kemp26 the Court rejected an equal protection claim of a black defendant who received a death sentence following conviction for murder of a white victim, even though a statistical study showed that black defendants charged with murdering white people were more than four times as likely to receive a death sentence in the state than were defendants charged with killing black people. The Court distinguished Batson v. Kentucky by characterizing capital sentencing as fundamentally different from jury venire selection; consequently, reliance on statistical proof of discrimination is less rather than more appropriate.27 Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused.28 Also, the Court noted, there is not the same opportunity to rebut a statistical inference of discrimination; jurors may not be required to testify as to their motives, and for the most part prosecutors are similarly immune from inquiry.29

Footnotes

  1.  Jump to essay-1100 U.S. 303 (1880). Cf. Virginia v. Rives, 100 U.S. 313 (1880). Discrimination on the basis of race, color, or previous condition of servitude in jury selection has also been statutorily illegal since enactment of § 4 of the Civil Rights Act of 1875, 18 Stat. 335, 18 U.S.C. § 243. See Ex parte Virginia, 100 U.S. 339 (1880). In Hernandez v. Texas, 347 U.S. 475 (1954), the Court found jury discrimination against Mexican-Americans to be a denial of equal protection, a ruling it reiterated in Castaneda v. Partida, 430 U.S. 482 (1977), finding proof of discrimination by statistical disparities, even though Mexican-surnamed individuals constituted a governing majority of the county and a majority of the selecting officials were Mexican-American.
  2.  Jump to essay-2Bush v. Kentucky, 107 U.S. 110 (1883); Carter v. Texas, 177 U.S. 442 (1900); Rogers v. Alabama, 192 U.S. 226 (1904); Pierre v. Louisiana, 306 U.S. 354 (1939); Smith v. Texas, 311 U.S. 128 (1940); Hill v. Texas, 316 U.S. 400 (1942); Cassell v. Texas, 339 U.S. 282 (1950); Reece v. Georgia, 350 U.S. 85 (1955); Eubanks v. Louisiana, 356 U.S. 584 (1958); Arnold v. North Carolina, 376 U.S. 773 (1964); Alexander v. Louisiana, 405 U.S. 625 (1972).
  3.  Jump to essay-3Hollins v. Oklahoma, 295 U.S. 394 (1935); Avery v. Georgia, 345 U.S. 559 (1953).
  4.  Jump to essay-4Neal v. Delaware, 103 U.S. 370 (1881); Martin v. Texas, 200 U.S. 316 (1906); Norris v. Alabama, 294 U.S. 587 (1935); Hale v. Kentucky, 303 U.S. 613 (1938); Patton v. Mississippi, 332 U.S. 463 (1947); Coleman v. Alabama, 377 U.S. 129 (1964); Whitus v. Georgia, 385 U.S. 545 (1967); Jones v. Georgia, 389 U.S. 24 (1967); Sims v. Georgia, 385 U.S. 538 (1967).
  5.  Jump to essay-5Even if there is no discrimination in the selection of the petit jury which convicted him, a defendant who shows discrimination in the selection of the grand jury which indicted him is entitled to a reversal of his conviction. Cassell v. Texas, 339 U.S. 282 (1950); Alexander v. Louisiana, 405 U.S. 625 (1972); Vasquez v. Hillery, 474 U.S. 254 (1986) (habeas corpus remedy).
  6.  Jump to essay-6Powers v. Ohio, 499 U.S. 400, 415 (1991). Campbell v. Louisiana, 523 U.S. 392 (1998) (grand jury). See also Peters v. Kiff, 407 U.S. 493 (1972) (defendant entitled to have his conviction or indictment set aside if he proves such exclusion). The Court in 1972 was substantially divided with respect to the reason for rejecting the same class rule—that the defendant be of the excluded class—but in Taylor v. Louisiana, 419 U.S. 522 (1975), involving a male defendant and exclusion of women, the Court ascribed the result to the fair-cross-section requirement of the Sixth Amendment, which would have application across-the-board.
  7.  Jump to essay-7Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 329 (1970).
  8.  Jump to essay-8Carter v. Jury Comm’n of Greene County, 396 U.S. 320 (1970); Turner v. Fouche, 396 U.S. 346 (1970).
  9.  Jump to essay-9Norris v. Alabama, 294 U.S. 587 (1935); Patton v. Mississippi, 332 U.S. 463 (1947); Hill v. Texas, 316 U.S. 400 (1942).
  10.  Jump to essay-10Pierre v. Louisiana, 306 U.S. 354 (1939); Cassell v. Texas, 339 U.S. 282 (1950); Eubanks v. Louisiana, 356 U.S. 584 (1958); Whitus v. Georgia, 385 U.S. 545 (1967); Alexander v. Louisiana, 405 U.S. 625 (1972). For an elaborate discussion of statistical proof, see Castaneda v. Partida, 430 U.S. 482 (1977).
  11.  Jump to essay-11Norris v. Alabama, 294 U.S. 587 (1935); Eubanks v. Georgia, 385 U.S. 545 (1967); Sims v. Georgia, 389 U.S. 404 (1967); Turner v. Fouche, 396 U.S. 346, 360–361 (1970).
  12.  Jump to essay-12Avery v. Georgia, 345 U.S. 559 (1953) (names of white and black citizens listed on differently colored paper for drawing for jury duty); Whitus v. Georgia, 385 U.S. 545 (1967) (jurors selected from county tax books, in which names of African Americans were marked with a c).
  13.  Jump to essay-13Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 331–37 (1970), and cases cited.
  14.  Jump to essay-14396 U.S. at 340–41.
  15.  Jump to essay-15380 U.S. 202 (1965).
  16.  Jump to essay-16476 U.S. 79, 96 (1986). Establishing a prima facie case can be done through a wide variety of evidence, so long as the sum of proffered facts gives rise to an inference of discriminatory purpose. Id. at 93–94. A state, however, cannot require that a defendant prove a prima facie case under a more likely than not standard, as the function of the Batson test is to create an inference and shift the burden to the state to offer race-neutral reasons for the peremptory challenges. Only then does a court weigh the likelihood that racial discrimination occurred. Johnson v. California, 543 U.S. 499 (2005).
  17.  Jump to essay-17476 U.S. at 98 (1986). The principles were applied in Trevino v. Texas, 503 U.S. 562 (1992), holding that a criminal defendant’s allegation of a state’s pattern of historical and habitual use of peremptory challenges to exclude members of racial minorities was sufficient to raise an equal protection claim under Swain as well as Batson. In Hernandez v. New York, 500 U.S. 352 (1991), a prosecutor was held to have sustained his burden of providing a race-neutral explanation for using peremptory challenges to strike bilingual Latino jurors; the prosecutor had explained that, based on the answers and demeanor of the prospective jurors, he had doubted whether they would accept the interpreter’s official translation of trial testimony by Spanish-speaking witnesses. The Batson ruling applies to cases pending on direct review or not yet final when Batson was decided, Griffith v. Kentucky, 479 U.S. 314 (1987), but does not apply to a case on federal habeas corpus review, Allen v. Hardy, 478 U.S. 255 (1986).
  18.  Jump to essay-18Rice v. Collins, 546 U.S. 333, 338 (2006) (citation omitted). The holding of the case was that, in a habeas corpus action, the Ninth Circuit panel majority improperly substituted its evaluation of the record for that of the state trial court. Id. at 337–38. Justice Breyer, joined by Justice Souter, concurred but suggested that legal life without peremptories is no longer unthinkable and that we should reconsider Batson’s test and the peremptory challenge system as a whole. Id. at 344.
  19.  Jump to essay-19Rice v. Collins, 546 U.S. at 338 (citations omitted). [O]nce it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, the burden shifts to the party defending the action to show that this factor was not determinative. We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context. . . . [Nevertheless,] a peremptory strike shown to have been motivated in substantial part by a discriminatory intent could not be sustained based on any lesser showing by the prosecution. Snyder v. Louisiana, 128 S. Ct. 1203, 1212 (2008) (citation omitted).

    To rule on a Batson objection based on a prospective juror's demeanor during voir dire, it is not necessary that the ruling judge have observed the juror personally. That a judge who observed a prospective juror should take those observations into account, among other things, does not mean that a demeanor-based explanation for a strike must be rejected if the judge did not observe or cannot recall the juror's demeanor. Thaler v. Haynes, 559 U.S. 43 (2010).

  20.  Jump to essay-20Federal courts are especially deferential to state court decisions on discriminatory intent when conducting federal habeas review. Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (citation omitted).
  21.  Jump to essay-21See, e.g., Flowers v. Mississippi, 139 S. Ct. 2228, 2235 (2019) (reasoning that [f]our critical facts when taken together established the trial court’s clear error in concluding that the state’s exercise of a peremptory strike was not motivated in substantial part by discriminatory intent: (1) the state’s use of peremptory challenges to strike 41 of the 42 black prospective jurors over the course of the defendant’s six trials; (2) the state’s exercise of peremptory strikes against five of the six black prospective jurors at the sixth trial; (3) the dramatically disparate questioning of black and white prospective jurors; and (4) the state’s use of a peremptory strike against one black prospective juror who was similarly situated to white prospective jurors who were not struck (internal quotation marks omitted)); Foster v. Chatman, 136 S. Ct. 1737, 1747–54 (2016) (applying the three-step process set forth in Batson to allow a death row inmate to pursue an appeal on the grounds that the state court’s conclusion that the defendant had not shown purposeful discrimination during voir dire was clearly erroneous given that the prosecution’s justifications for striking black jurors, while seeming reasonable enough, had no grounding in fact, were contradicted by the record, and had shifted over time); Snyder v. Louisiana, 552 U.S. 472, 483 (2008) (finding the prosecution’s race-neutral explanation for its peremptory challenge of a black juror to be implausible, and that this implausibility was reinforced by the prosecutor’s acceptance of white jurors whom the prosecution could have challenged for the same reasons that it claimed to have challenged the black juror); Miller-El v. Dretke, 545 U.S. 231, 240–41 (2005) (finding discrimination in the use of peremptory strikes based on various factors, including the high ratio of African Americans struck from the venire panel, some of whom were struck on grounds that appeared equally on point as to some white jurors who served).
  22.  Jump to essay-22Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
  23.  Jump to essay-23Georgia v. McCollum, 505 U.S. 42 (1992).
  24.  Jump to essay-24Rose v. Mitchell, 443 U.S. 545, 551 n.4 (1979).
  25.  Jump to essay-25Hobby v. United States, 468 U.S. 339 (1984). Note also that in this limited context where injury to the defendant was largely conjectural, the Court seemingly revived the same class rule, holding that a white defendant challenging on due process grounds exclusion of black people and women as grand jury foreperson could not rely on equal protection principles protecting black defendants from the injuries of stigmatization and prejudice associated with discrimination. Id. at 347.
  26.  Jump to essay-26481 U.S. 279 (1987). The decision was 5-4, with Justice Powell’s opinion of the Court being joined by Chief Justice Rehnquist and by Justices White, O’Connor, and Scalia, and with Justices Brennan, Blackmun, Stevens, and Marshall dissenting.
  27.  Jump to essay-27481 U.S. at 294. Dissenting Justices Brennan, Blackmun and Stevens challenged this position as inconsistent with the Court’s usual approach to capital punishment, in which greater scrutiny is required. Id. at 340, 347–48, 366.
  28.  Jump to essay-28481 U.S. at 297. Discretion is especially important to the role of a capital sentencing jury, which must be allowed to consider any mitigating factor relating to the defendant’s background or character, or to the nature of the offense; the Court also cited the traditionally ‘wide discretion’ accorded decisions of prosecutors. Id. at 296.
  29.  Jump to essay-29The Court distinguished Batson by suggesting that the death penalty challenge would require a prosecutor to rebut a study that analyzes the past conduct of scores of prosecutors whereas the peremptory challenge inquiry would focus only on the prosecutor’s own acts. 481 U.S. at 296 n.17.
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