Peremptory Challenges

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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.

Following its 1880 Strauder v. West Virginia decision that a law that discriminates in selecting jurors based on their color violates the Fourteenth Amendment’s Equal Protection Clause,1 the Court recognized that excluding a defendant’s racial or ethnic group from the grand jury2 that indicts them or the petit jury3 that tries them, or from both,4 denies the defendant equal protection of the laws and requires reversing the conviction or dismissing the indictment.5 Even if the defendant’s race differs from that of the excluded jurors, the Court has held, the defendant has third-party standing to assert the rights of jurors excluded on the basis of race.6 Indeed, people categorically excluded from jury service may seek affirmative relief to outlaw discrimination in the procedures a jurisdiction uses to call and qualify jurors, as the Court has held that “[d]efendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection.” 7 The Court has further noted that “[p]eople 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.” 8

A plaintiff can make out a prima facie case of deliberate and systematic exclusion by showing that no Black citizens have served on juries for a period of years9 or 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 Court has held that the burden is upon the jurisdiction to prove that it had not practiced discrimination and testimony by jury selection official that they did not discriminate is not sufficient.11 Although the Court, in cases with great racial disparities, has voided certain practices that facilitated discrimination,12 it has not outlawed discretionary jury selection pursuant to general standards of educational attainment and character that can be administered fairly.13 Similarly, the Court declined to rule that African Americans must be included on all-White jury commissions that administer jury selection laws in some states.14

In its 1965 Swain v. Alabama decision,15 the Court examined a circumstance where African Americans regularly appeared on jury venires but no African American had actually served on a petite jury in fifteen years.16 The reason no Black jurors served in defendant’s case, the Court found, was that attorneys used peremptory challenges—which allow them to remove a certain number of potential jurors without justification—to eliminate potential African American jurors.17 Nevertheless, the Court refused to set aside the conviction. The Court held the prosecution could use peremptory challenges to exclude African Americans in this particular case, regardless of motive, but indicated that consistent use of such challenges to remove African Americans across many cases would violate equal protection.18 Because the record did not show that the prosecution was solely responsible for African Americans’ absence from the jury and suggested the defense requested some exclusions, the Court rejected the defendant’s claims.19

In Batson v. Kentucky, however, the Court overruled Swain's holding as to the evidentiary standard, 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.” 20 To rebut this showing, the Court explained, 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.” 21 The Court further stated: “Although 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.” 22 After such a rebuttal, the Court noted: “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.’” 23 The Court also noted deference due to the trial court’s determination of discriminatory intent, commenting: “On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.” 24

Notably, on more than one occasion, the Supreme Court has reversed trial courts’ findings of no discriminatory intent.25 Indeed, in post-Batson review, the Court has closely reviewed transcripts of jurors’ pretrial voir dire questioning, applying a “comparative juror analysis.” 26 In this analysis, the Court considers the minority jurors the prosecution struck and the reasons it gave for each strike at the Batson hearing before trial.27 Then the Court will see if there were similar, White jurors the prosecution did not strike. Inconsistencies could show that the alleged race-neutral reasons for striking minority jurors are pretextual.28 The Court has also extended Batson to apply to racially discriminatory use of peremptory challenges by private litigants in civil litigation,29 and by a defendant in a criminal case,30 as peremptory challenges always encompass state action, and cannot be considered mere private conduct.31

Discrimination in selecting 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 “assume[d] without deciding” that a judge’s discrimination in selecting foremen for state grand juries would violate equal protection in a system in which the foreman served as a thirteenth voting juror and exercised significant powers.32 The Court did not reach the same result, however, in a decision on a due process challenge to the federal system, where the foreman’s responsibilities were “essentially clerical” and where the judge chose the foreman from among the members of an already chosen jury.33

In its 1987 decision McCleskey v. Kemp34 the Court rejected an equal protection claim based on statistical evidence of systemic racial discrimination in sentencing, declining to extend the jury selection rules. The defendant, a Black man who received a death sentence after being convicted for murdering a White victim, presented a statistical study showing that defendants charged with murdering White people were more than four times likely to receive a death sentence in the state than defendants charged with killing Black people.35 The Court distinguished Batson v. Kentucky by characterizing capital sentencing as “fundamentally different” from jury venire selection; consequently, relying on statistical proof of discrimination is less appropriate.36 The Court stated: “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.” 37 Also, the Court noted, there is not the same opportunity to rebut a statistical inference of discrimination because jurors deciding sentencing issues may not be required to testify to their motives unlike attorneys selecting jurors.38

1: 100 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), superseded by statute, 42 U.S.C. § 1981. 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: Bush v. Kentucky, 107 U.S. 110 (1883), superseded by statute as stated in Georgia v. Rachel, 384 U.S. 780 (1966); 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: Hollins v. Oklahoma, 295 U.S. 394 (1935); Avery v. Georgia, 345 U.S. 559 (1953).
4: Neal 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: Even 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, 339 U.S. 282; Alexander v. Louisiana, 405 U.S. 625; Vasquez v. Hillery, 474 U.S. 254 (1986) (habeas corpus remedy).
6: Powers 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, 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. 419 U.S. 522 (1975).
7: Carter v. Jury Comm’n, 396 U.S. 320, 329 (1970)
8: Id.; Turner v. Fouche, 396 U.S. 346 (1970).
9: Norris, 294 U.S. 587; Patton, 332 U.S. 463; Hill v. Texas, 316 U.S. 400 (1942).
10: Pierre v. Louisiana, 306 U.S. 354 (1939); Cassell, 339 U.S. 282; Eubanks v. Louisiana, 356 U.S. 584 (1958); Whitus v. Georgia, 385 U.S. 545 (1967); Alexander, 405 U.S. 625. For a discussion of statistical proof, see Castaneda v. Partida, 430 U.S. 482 (1977).
11: Norris, 294 U.S. 587; Whitus, 385 U.S. 545; Sims v. Georgia, 389 U.S. 404 (1967); Fouche, 396 U.S. at 360–361.
12: Avery v. Georgia, 345 U.S. 559 (1953) (names of White and Black citizens listed on differently colored paper for drawing for jury duty); Whitus, 385 U.S. 545 (jurors selected from county tax books, in which names of African Americans were marked with a “c” ).
13: Carter, 396 U.S. at 331–37, and cases cited.
14: Carter, 396 U.S. at 340–41.
15: 380 U.S. 202 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986).
16: Id. at 205, 223.
17: Id. at 210.
18: Id. at 223.
19: Id. at 224.
20: Batson, 476 U.S. at 96. A prima facie case of purposeful discrimination can be established by “showing that the totality of the relevant 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).
21: Batson, 476 U.S. at 98. The principles were applied in Trevino v. Texas, 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. 503 U.S. 562 (1992). In Hernandez v. New York, 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. 500 U.S. 352 (1991).
22: Rice 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 Stephen Breyer, joined by Justice David 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.
23: Rice, 546 U.S. at 338 (citations omitted). See also Snyder v. Louisiana, 522 U.S. 472, 485 (2008) (citation 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.” ).
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).
24: Federal 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).
25: See, e.g., Flowers v. Mississippi, No. 17-9572, slip op. at 2–3 (U.S. June 21, 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, 578 U.S. 488, 499–511 (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, 552 U.S. at 483 (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” ).
26: Miller-El, 545 U.S. at 241.
27: Id.
28: Id. See also Flowers, slip op. at 17–18.
29: Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
30: Georgia v. McCollum, 505 U.S. 42 (1992).
31: Edmonson, 500 U.S. at 622.
32: Rose v. Mitchell, 443 U.S. 545, 551 n.4 (1979).
33: Hobby v. United States, 468 U.S. 339 (1984). In this limited context where injury to the defendant is largely conjectural, the Court seemingly revived the same class rule, holding that a White defendant challenging excluding Black people and women from being a grand jury foreperson on due process grounds could not rely on equal protection principles protecting Black defendants from “the injuries of stigmatization and prejudice” associated with discrimination. Id. at 347.
34: 481 U.S. 279 (1987). The decision was 5-4. Justice Lewis Powell’s opinion for the Court was joined by Chief Justice William Rehnquist and Justices Byron White, Sandra Day O’Connor, and Antonin Scalia. Justices William Brennan, Harry Blackmun, John Paul Stevens, and Thurgood Marshall dissented.
35: Id. at 320 (Brennan, J., dissenting).
36: Id. at 294. Dissenting Justices William Brennan, Harry Blackmun and John Paul 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.
37: Id. 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 the nature of the offense. The Court also cited the “traditionally ‘wide discretion’” accorded decisions of prosecutors. Id. at 296.
38: The 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. Id. at 296 n.17.