Case Law on Racial Discrimination in Jury Selection

Case Law on Racial Discrimination in Jury Selection

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court reaffirmed the fundamental principle that "racial discrimination in jury selection offends the Equal Protection Clause," 476 U.S. at 85, 106 S.Ct. 1712, and further held that "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Id. at 96, 106 S.Ct. 1712.

The Court then addressed the now-familiar three-step analysis guiding trial courts' constitutional review of peremptory challenges, which places the initial burden on the defendant to come forward with a prima facie case indicating discriminatory purpose by the prosecution in the exercise of its challenges, id. at 96-97, 106 S.Ct. 1712, then shifts the burden to the prosecution, which must supply race-neutral explanations for its challenges, id. at 97, 106 S.Ct. 1712, and finally tasks the court with the duty of "determining if the defendant has established purposeful discrimination." Id. at 98, 106 S.Ct. 1712.

While Batson discussed the analysis of a defendant's objection to the prosecution's use of peremptory challenges, the Court expressly "declined ... to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges," id. at 99, 106 S.Ct. 1712, explaining that "in light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today." Id. at 99 n. 24, 106 S.Ct. 1712.

Just a few months after Batson was issued, the New Jersey Supreme Court, in State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986), accepted the implicit invitation to "spell out the contours of Batson's Equal Protection holding," Batson, 476 U.S. at 103, 106 S.Ct. 1712 (White, J., concurring), and proceeded to "formulate the procedures to be followed by trial courts when a defendant alleges that a prosecutor is improperly using peremptory challenges," Gilmore, 511 A.2d at 1163.

Though the Gilmore court expressly "basedits decision on the New Jersey Constitution, which protects fundamental rights independently of the United States Constitution," id. at 1157, it clearly intended its holding to conform to the parameters set forth in Batson. See id. ("We observe that under Batson's interpretation of the Equal Protection Clause of the Fourteenth Amendment ... the United States Constitution would compel the result that we reach on independent state grounds."). Gilmore effectively added flesh to the framework discussed in Batson by setting forth the precise standards applicable to each step of the analysis. Id. at 1164-67.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court made clear that the prosecution in a criminal case cannot use its peremptory challenges in jury voir dire to strike potential jurors solely on account of their race.

To ensure that such discrimination does not go unchecked, the Court established an evidentiary scheme which allows a defendant to establish a three part prima facie case of discrimination. First, he must show that he is a "member of a cognizable racial group." Id. at 96, 106 S.Ct. at 1722-23.

Second, the prosecutor must have used his peremptories to strike venire members of the defendant's race. Id.

Third, the defendant must prove that these facts, plus any other relevant circumstances "raise an inference" that the prosecutor excluded the veniremen on account of race. Id.

Once this prima facie case has been made, the burden shifts to the state to come forward with racially-neutral explanations for the strikes. Id.

In Batson, the Supreme Court discussed the requirements for a prima facie case in the following terms:

To establish such a case, the defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." ... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the venire-men from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors. Batson, 476 U.S. at 96-97, 106 S.Ct. 1712.

The Batson standard for assessing a prima facie showing is fluid, mainly because it places great confidence in the ability of trial judges to assess whether discrimination is at work based on the evidence at hand. The judge's assessment "largely will turn on evaluation of credibility," id. at 98 n. 21, 106 S.Ct. 1712, and "[t]he analysis set forth in Batson permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process." Hernandez v. New York, 500 U.S. 352, 358, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

The defendant's burden at the initial stage is to show merely that jurors of his race have been struck and that the strikes are indicative of an improper motive.

The defendant generally meets this burden if there is a pattern of strikes or if the prosecutor's questions and statements during voir dire support an inference of discriminatory purpose. Notably absent from the Batson discussion of the prima facie case is any call for trial judges to seek the type of statistical accounting required by the Spence rule (Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993)) nor do we see how such an accounting fits within Batson's first step.

A trial judge undoubtedly might find in a given case that a full accounting regarding the race of the venire and the jurors struck would be helpful at the third stage of the Batson analysis, after it has heard the prosecutor's explanation for the strikes and must "determine if the defendant has established purposeful discrimination." Id. at 98, 106 S.Ct. 1712.