Abstract

Excerpted From: Nisa R. Sheikh, The Ineffectiveness of the Batson Challenge: Texas' Struggle with Racial Discrimination in Jury Selection and Paths to Reform, 43 Review of Litigation 317 (Spring, 2024) (124 Footnotes) (Full Document)

A. What are peremptory strikes and how many do the defense and prosecution get?

Peremptory challenges allow parties in a criminal case to strike prospective jurors without assigning, or being required to assign, a reason for the challenge. The Supreme Court has stated that “[t]he right to exercise peremptory challenges in state court is determined by state law.” The Constitution does not confer a right to peremptory challenges, and “[s]tates may withhold peremptory challenges altogether without impairing the constitutional guarantee of an impartial jury and a fair trial.”

Depending on the type of criminal case, in Texas, both the State and the defendant are entitled to a specific number of peremptory strikes. In capital cases in which the State seeks the death penalty, “both the State and defendant shall be entitled to fifteen peremptory challenges.” Where two or more defendants are tried together, “the State shall be entitled to eight peremptory challenges for each defendant; and each defendant shall be entitled to eight peremptory challenges.”

B. What is the Batson Test?

The Supreme Court in 1986 held that a “State's privilege to strike individual jurors through peremptory challenges is subject to the commands of the Equal Protection Clause.” The Court held that peremptory challenges on the basis of race are unconstitutional unless a race-neutral reason can be provided to explain the exclusion of the jurors. Texas has codified this rule in the Code of Criminal Procedure, Article 35.261. If a defendant suspects that jurors of a racial group are being excluded from a jury, the defendant can request a new jury array from which the jury will be chosen.

Despite this rule, peremptory strikes have often been used to “discriminate against black jurors.” When analyzing a Batson challenge at trial, the district court must engage in a three-step process. If a party suspects that the opposing party is peremptorily striking jurors for invidious racial reasons, the opponent of the challenge must (1) present “a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Then, “[o]nce the defendant makes the requisite showing, the burden shifts to the State to [(2)] explain adequately the racial exclusion.” When explaining the exclusion, “[t]he State must demonstrate that 'permissible racially neutral selection criteria and procedures have produced the monochromatic result.”’ Finally, the trial court must then (3) determine whether the opponent of the strike has proven purposeful racial discrimination after the defendant attempts to rebut the State's explanations.

[. . .]

Batson litigation is an important and relevant topic being discussed at the national level and across states. It is imperative that black and minority defendants are afforded their fundamental right to a representative jury. Many states have established statutory rules that expand the protections afforded to defendants in the Batson context, modeled after Washington's General Rule 37. More states should adopt GR37 and use the extensive (though not comprehensive) list of reasons that should not be accepted as “race-neutral” reasons to strike jurors. This will force prosecutors to be more intentional about why they strike jurors and how their implicit biases may be at play. Another potential solution to address racial discrimination in jury selection is employing the use of blind jury selection. While Batson is supposed to address overt, intentional racism in jury selection, it does not reach implicit bias that may be at play when jurors are selected. By making the entire jury selection blind, there is significantly less risk of a prosecutor's personal biases and subconscious racism influencing the jury selection process. Blind jury selection can eliminate or at least reduce invidious discrimination in jury selection. It is imperative that states begin addressing the harmful effects that racial discrimination in jury selection has on defendants and adopt methods to address these harms in their respective judicial systems.

Real Estate Attorney in Dallas, Texas. The author received her J.D. in 2023 from The University of Texas School of Law. She also served as the Chief Online Editor for The Review of Litigation from 2022-2023.