Batson Challenges to Discriminatory Jury Strikes in Federal Court
Federal prosecutors may use peremptory challenges to remove prospective jurors without proving legal cause, but they cannot strike a juror because of race. When the circumstances suggest purposeful discrimination, defense counsel may object under Batson v. Kentucky, 476 U.S. 79 (1986).
Discrimination during jury selection violates the Constitution and can require a new trial. If a prosecutor may have removed a juror because of race, contact federal criminal defense attorney Michael J. Petro immediately to determine whether the objection was preserved and whether the conviction can be challenged.
What Is a Batson Challenge?
A Batson challenge is an objection alleging that a party used a peremptory strike for a discriminatory purpose.
Peremptory challenges ordinarily permit attorneys to remove a limited number of prospective jurors without establishing cause. That discretion does not permit exclusion based on race.
Batson initially addressed prosecutors striking African American jurors in criminal cases. Subsequent Supreme Court decisions expanded constitutional protections to other circumstances, including sex-based discrimination and discriminatory strikes by criminal defendants.
The Three Steps of a Batson Challenge
Courts generally evaluate a Batson objection in three steps.
Step One: Evidence of Discrimination
The defense must present circumstances supporting an inference that the prosecutor exercised a peremptory challenge because of race.
Relevant circumstances may include:
• A pattern of strikes against jurors of a particular race
• Questions directed more aggressively toward minority jurors
• Different treatment of jurors who gave similar answers
• The prosecutor’s statements or conduct during jury selection
• The racial composition of the remaining jury
• The prosecutor’s history in the same case or related proceedings
The defense does not need to prove discrimination conclusively at the first step. It must identify facts supporting a reasonable inference of discriminatory intent.
Step Two: The Prosecutor’s Explanation
If the court finds the required initial showing, the prosecutor must provide a race-neutral explanation for the strike.
At this stage, the explanation does not need to be persuasive or convincing. It must be based on something other than the juror’s race.
Common explanations include a juror’s prior contact with law enforcement, hesitation about following the law, body language, occupation, family history, or answers during voir dire. The fact that an explanation sounds neutral does not end the inquiry.
Step Three: Purposeful Discrimination
The trial judge must decide whether the prosecutor’s stated reason is genuine or merely a pretext for discrimination.
This is often the most important part of the Batson analysis. The court must evaluate credibility, consistency, the completeness of the record, and how the prosecutor treated other prospective jurors.
The ultimate burden of proving purposeful discrimination remains with the party challenging the strike.
Comparing Struck Jurors With Jurors Who Were Kept
Comparative juror analysis is one of the strongest methods for exposing pretext.
If the prosecutor claims that an African American juror was removed because of a particular answer but accepts a white juror who gave the same or a substantially similar answer, the unequal treatment may support an inference of discrimination.
The comparison does not require the two jurors to be identical in every respect. The defense should focus on whether the prosecutor treated similarly situated jurors differently concerning the reason offered for the challenged strike.
Other indications of pretext may include:
• Mischaracterizing the juror’s answer
• Failing to question the juror about the supposed concern
• Accepting other jurors with the same characteristic
• Offering an explanation unsupported by the record
• Applying a justification inconsistently
• Changing the explanation after the original reason is challenged
New Explanations May Reveal Pretext
A prosecutor should state the actual reason for a challenged strike when the Batson objection is made. Courts may view new explanations offered later with skepticism.
An explanation developed after trial or after the original reason proves unpersuasive may appear to be an attempt to defend the strike rather than the prosecutor’s actual motivation at the time of jury selection.
The Supreme Court explained in Miller El v. Dretke, 545 U.S. 231 (2005), that the plausibility of a challenged strike must be evaluated based on the explanation the prosecutor gave. A later justification that appears to be an afterthought can support a finding of pretext.
United States v. Taylor
In United States v. Taylor, 636 F.3d 901 (7th Cir. 2011), the defendants challenged the government’s use of peremptory strikes against several African American prospective jurors.
The dispute centered on a prospective juror who expressed reservations about imposing the death penalty on a defendant who was not the shooter. The prosecutor removed her and stated that her views on imposing the death penalty against a nonshooter justified the strike.
The record showed that a white juror expressed substantially similar views but was not removed. The Seventh Circuit twice remanded the case for further examination of the prosecutor’s explanation.
During an evidentiary hearing after the second remand, the government offered seven additional reasons for striking the African American juror. Those reasons had not been provided when the original Batson challenge was made.
Why the Convictions Were Vacated
The Seventh Circuit held that the trial court should have focused on the reason the prosecutor originally provided during jury selection. The government could not rehabilitate the challenged strike by supplying numerous new explanations years later.
The appellate court concluded that it could not separate the proper analysis of the original explanation from the trial court’s reliance on the new reasons. It vacated the judgments and remanded the case for a new trial.
The case demonstrates why defense counsel should compare jurors in real time and require the prosecutor to place the asserted reasons for each challenged strike on the record.
Preserving a Batson Objection
A Batson objection should ordinarily be made before the jury is sworn and before the unselected jurors are released.
Defense counsel should:
• Identify the challenged strike
• State the suspected discriminatory basis
• Describe any pattern of similar strikes
• Compare the removed juror with jurors the prosecutor accepted
• Identify inconsistencies in questioning or treatment
• Request the prosecutor’s complete explanation
• Ask the court to make findings at each stage
• Object if the prosecutor later changes or expands the explanation
A complete record is critical because appellate courts generally give substantial deference to the trial judge’s factual and credibility findings.
Challenging Discrimination During Jury Selection
A jury must be selected through a process free from purposeful discrimination. A prosecutor cannot avoid Batson merely by stating a facially neutral reason when the record shows that the explanation is inconsistent, implausible, or applied differently to other jurors.
Attorney Michael J. Petro represents individuals in federal criminal trials and appeals in Tampa, Florida, and Chicago, Illinois. Contact federal criminal defense attorney Michael J. Petro today if discriminatory jury selection may have affected your federal criminal case.