Illinois Courts Struggle to Evaluate Race-Neutral Explanations for Peremptory Challenges under Batson v. Kentucky, 22 J. Marshall L. Rev. 235 (1988) (original) (raw)
Racial Discrimination and Jury Selection
Social Science Research Network, 2016
Racial Discrimination and Jury Selection BY PETER A. JOY AND KEVIN C. McMUNIGAL In an effort to eliminate a long history of racial discrimination in jury selection, the U.S. Supreme Court held in Batson v. Kentucky, 476 U.S. 79 (1986), that jurors cannot be excluded on the basis of race through a prosecutor's use of peremptory challenges. Despite that ruling, racial discrimination in jury selection has remained a persistent problem. In May 2016, the U.S. Supreme Court decided yet another case, Foster v. Chatman, No. 14-8349 (U.S. May 23, 2016), available at http://www.supremecourt.gov/opinions/15pdf/14-8349\_6k47.pdf, finding that prosecutors' use of peremptory challenges to exclude all eligible potential African American jurors to achieve an all-white jury in Georgia violated Batson. That jury sentenced 18-year-old Timothy Foster, an African American man, to death for the murder of an elderly white woman. Nearly 30 years later, the Court concluded that the prosecutors were motivated in substantial part by race when they struck two potential jurors from the jury. Emphasizing the seriousness of racial discrimination in jury selection, the Court admonished: "Two peremptory strikes on the basis of race are two more than the Constitution allows." The Supreme Court may have granted Foster a new trial based on Batson, but that is unlikely to stop racial discrimination in jury selection. Since the Court decided Batson 40 years ago, issues of racially motivated use of peremptory challenges frequently arise. In that time, several cases have reached the Court, and countless more have gone to state and federal courts of appeals. In view of the intractable problem presented by the use of peremptory challenges, commentators have recommended a variety of solutions to eliminate racial discrimination in jury selection and achieve more inclusive and representative juries. In this column, we explore the problems with Batson as a constitutional rule as well as the legal ethics of racial discrimination in jury selection. We also consider alternatives to peremptory challenges, and conclude by endorsing alternatives to the current system of peremptory challenges as the best alternatives to curb racial discrimination in jury selection. The Problem of Racial Discrimination in Jury Selection Racial discrimination in jury selection has long plagued the criminal justice system in the United States. Until the 1875 Civil Rights Act outlawed race-based discrimination in jury service, African American jurors were customarily, and legally, excluded from juries. Resistance to the Civil Rights Act was strong, and it took litigation through several decades until courts invalidated state laws restricting jury service to whites. After the repeal of de jure racial discrimination in jury composition, local officials achieved the same results well into the 1960s by excluding African Americans from jury rolls or jury panels or venires by various means.
American Journal of Criminal Justice, 2008
This paper examines race-based peremptory challenges. Such challenges occur during the voir dire jury selection process. The process allows both the defense and the prosecution to strike jurors who they believe will not decide cases fairly. However, in the case of Batson v. Kentucky 476 U.S. 79 (1986), the Supreme Court ruled that race could not be used as a factor in eliminating prospective jurors. This paper examines federal litigation for five years in which it was alleged that race was used as a factor in removing a juror. An examination of the cases revealed that most of the cases involved sole male litigants who allege that there were multiple racebased peremptory challenges used in their cases. Moreover, most of the cases that led to the allegations involved violent offenses. Other case characteristics are noted, but of most significance was the finding that most appellants lost their cases. As such, the courts felt that most of the challenges were, in fact, race neutral. The implications of this research are discussed.
SSRN Electronic Journal
This article examines possible applications of two affirmative action strategies in jury selection-affirmative jury structures and affirmative peremptory inclusion-in order to create racially mixed juries. I contend that, with the use of affirmative jury structures such as de medietate linguae jury, the Hennepin jury, and social science models, the court can effectively design three specific forms of racially mixed tribunals by requiring varying mandatory racial quotas to ensure the allocation of jury seats to racial minorities. Affirmative peremptory inclusion is a procedural jury selection strategy in voir dire to neutralize the biasing effect of race-based peremptory challenges so that a racially mixed jury is achieved through affirmatively choosing, rather than peremptorily excluding, potential jurors who share the same racial and ethnic background as the defendants. In order to illustrate the importance of affirmative jury selection structures and peremptory inclusion, this paper specifically focuses on People of the State of California v. Eugene "Bear" Lincoln (no. cl2632), the recent criminal trial and racially explosive case that received extensive national attention and international media coverage. The present author participated in the Lincoln trial as a defense jury consultant in assessing the extent of racial discrimination in jury selection at Mendocino County Superior Court, California. The critical analysis of the Lincoln case demonstrates that racially diverse tribunals may be the only effective and equitable solution to increase public's perceptions of trial fairness and verdict legitimacy in racially sensitive trials.
Ohio State Law Journal, 2021
Among the central issues in scholarship on the American jury is the effect of Batson v. Kentucky (1986) on discriminatory empanelment. Empirical legal research has confirmed that despite the promise of the Batson doctrine, both peremptory strikes and challenges for cause remain tools of racial exclusion. But these studies, based on post-facto interviews, transcript analysis, and quantitative methods offer little insight into Batson’s critical impact on real-time decision-making and strategy in voir dire. If we increasingly know what kinds of juries are produced in the post-Batson world, we know very little about how they are produced. This Article addresses this problem with data derived from a five-year field study of Assistant U.S. Attorneys. Through interviews and participant observation during jury selection proceedings, it provides an unprecedented empirical perspective on how Batson has made race central to the ways prosecutors perceive, pick, and strike jurors. Rather than diminishing race’s influence on voir dire, Batson has made it an essential consideration for prosecutors concerned with their in-court performance and professional reputations. This race-conscious approach to jury selection has arisen in part due to a clear doctrinal shift in courts’ analyses of juror questioning and striking. This shift has expanded the scope of judicial inquiry during the adjudication of Batson challenges from scrutiny of individual “neutral” rationales for juror dismissals to a more robust comparative juror analysis. My empirical findings indicate that there is a meaningful connection between this latter approach and the incorporation of anti-discrimination norms into prosecutorial approaches to voir dire. Having identified and described this link, it becomes possible to perform a deeper audit of the Batson framework, and suggest, as this Article does, that with reform and expansion to address well-documented limitations, it may serve to narrow the gap between juries as they are and juries as the Constitution would have them be.
LSN: Juries (Public Law) (Sub-Topic), 1997
In July 1995, the University of California Board of Regents voted to end affirmative action based on race and gender in admissions, hiring, and contracting. Recently, the Equal Opportunity Act introduced by the Republicans would abolish three decades of affirmative action programs initiated by President Johnson in 1965. Given these actions, Americans will have another opportunity to decide whether racial preferences should be terminated from all federal programs.While the question of preferential treatment of racial minorities has divided the nation and even some minority communities themselves, affirmative action in jury proceedings and trials has yet to receive much-deserved attention. This article examines public perceptions of possible application of affirmative action in criminal jury proceedings, focusing on the uses of mandatory racial quotas in criminal jury trials. We examine two different types of racially mixed juries -- the jury "de medietate linguae" and the H...
1994
Court was whether Batson's principles' 2 should be extended to gender discrimination in jury selection.' 3 In considering Fern's argument, the court observed that the United States Supreme Court had not yet ruled on whether Batson's principles should extend to gender discrimination.' 4 The court also recognized a split among jurisdictions on the issue.' The court ultimately held, however, that Batson should be extended to gender discrimination' 6 and remanded the case to the trial court for factual findings consistent with the holding.' 7 II. LEGAL BACKGROUND The United States Supreme Court first applied the Equal Protection Clause' 8 to a question involving the composition of juries in Strauder v. West Virginia." The Supreme Court held that laws prohibiting African-Americans from serving on juries denied equal protection to African-American defendants. 20 At the same time, however, the Supreme Court indicated that it would be constitutionally permissible for a state to prohibit women from serving on juries. 2 ' North Dakota was once among the states which prohibited women from serving on juries. North Dakota's 1889 Constitution effectively 12. The Supreme Court in Batson found that a defendant has a right to be tried by a jury whose members are selected in a nondiscriminatory manner. Batson v. Kentucky, 476 U.S. 79, 85-86 (1986). The Supreme Court stated that "[t]he Equal Protection Clause guarantees the defendant that the State will not exclude members of his race as a group from the jury venire on account of race... or on the false assumption that members of his race as a group are not qualified to serve as jurors ." Id. (citations omitted). 13. Fern, 501 N.W.2d at 744. 14. Id. at 743. The Court has now ruled on this issue. See infra notes 114-117 and accompanying text (discussing J.E.B. v. Alabama ex. rel. T.B., 114 S. CL 1419 (1994)). 15. Fern, 501 N.W.2d at 744. 16. Id. 17. Id. at 749. 18. U.S. CONsT. amend. XIV, § 1 (providing that "[nio state shall... deny to any person within its jurisdiction the equal protection of the laws"). 19. 100 U.S. 303 (1879). .20. Strauder v. West Virginia, 100 U.S. at 309. In Strauder, an African-American defendant convicted in West Virginia claimed violation of his constitutional rights because state law forbade African-Americans from serving on juries. Id. at 304. The Court agreed, indicating that disqualification from jury service based on race "amounts to a denial of the equal protection of the laws[.]" IL at 310. The Court based this conclusion on its understanding that the Fourteenth Amendment created a positive right for African-Americans: "[T]he right to exemption from unfriendly legislation against them distinctl as colored[." I. at 307-08. It found the West Virginia statute at issue to be such "unfriendly legislation" because it placed a brand of inferiority on African-Americans by singling them out for discriminatory treatment based on race. Id. at 308. The Batson Court observed that Strauder-laid the foundation for the court's unceasing efforts to eradicate racial discrimination" in jury selection. Batson, 476 U.S. 79, 85 (1986). 21. Strauder, 100 U.S. at 310. The Court indicated that the aim of the Fourteenth Amendment was to "strike down all possible legal discriminations" against African-Americans. Id. Thus, the Court indicated that states could not disqualify jurors basedson race, but could disqualify them based on gender, citizenship or education. d.
Justice, Juries, and Convictions: The Relevance of Race in Jury Verdicts
Journal of crime & justice, 2008
Previous research has suggested that the racial composition of a jury plays a role in the likelihood of conviction of certain defendants. In general, it has been supported that White jury members are more likely to vote to convict Black defendants, while Black jury members are more likely to vote to acquit Black defendants. Prior research has suffered from flaws that could possibly affect these outcomes. For instance, the use of mock juries to examine jury behavior creates artificiality and may not adequately reflect real jury decision-making. Additionally, research on real juries either focuses on certain types of cases (i.e., capital cases) or suffers from problems relating to insufficient or incomplete trial or jury data. As a result, existing jury research has failed to folly capture or explain the factors that are related to jury decision-making in non-capital felony trials. The current research examined case outcomes in real jury trials of defendants charged with non-capital felonies. In particular, the current study analyzed the relationship between the racial composition of the jury and conviction of black defendants. Results indicated a significant relationship between these two variables.
Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury
2011
This article examines the problem of racial bias in capital cases generally and its operation within capital juries in particular. We provide a brief summary of the empirical research that demonstrates how juror demographics and defendant race interact to produce race-based death sentencing. We then explore some of the psychological dynamics that are at the core of discriminatory death sentencing by capital jurors, particularly the tendency of White jurors to more often sentence Black defendants to death. We then examine some of legal approaches that have been used to address this problem in the past, as well as the evidence of how and why they have fallen short of doing so. We conclude by proposing a set of reforms that focus more precisely on the core psychological issues that we believe are at the heart of this problem of racially biased capital jury sentencing.