Batson Basics: Who Does the Protecting and Who are Jurors Protected From?

November 1, 2016
By Hanging Out with Carl Gunn


  • On the good side, a defendant can raise a Batson challenge even if the defendant isn’t the same race as the juror.
  • On the bad side, Batson applies to defense challenges just like prosecution challenges.
  • In addition, Batson isn’t limited to challenges of minority jurors; it’s been held to apply to any challenge based on race, including challenging a white juror based solely on his or her race.



Recall the recognition in the last two posts that Batson isn’t intended to protect defendants’ rights – or at least not just defendants’ rights – but is intended to protect jurors’ rights as well.  A defendant is allowed to assert jurors’ rights because Batson recognized that’s the only practical way to protect jurors’ rights.

This rationale has two further implications – one good for us and one bad for us.  On the good side, a defendant can make a Batson challenge to the exclusion of a juror based on race even when the defendant doesn’t share the race of the juror being excluded.  The Supreme Court so held in Powers v. Ohio, 499 U.S. 400 (1991).  It reasoned:

In Batson, we spoke of the harm caused when a defendant is tried by a tribunal from which members of his own race have been excluded.  But we did not limit our discussion in Batson to that one aspect of the harm caused by the violation.  Batson “was designed ‘to serve multiple ends,’” only one of which was to protect individual defendants from discrimination in the selection of jurors.  Allen v. Hardy, 478 U.S. 255, 259, 106 S. Ct. 2878, 92 L. Ed. 2d 199 (1986) (per curiam) (quoting Brown v. Louisiana, 447 U.S. 323, 329, 100 S. Ct. 2878, 2880, 65 L. Ed. 2d 159 (1980)).  Batson recognized that a prosecutor’s discriminatory use of peremptory challenges harms the excluded jurors and the community at large.  476 U.S., at 87, 106 S. Ct., at 1718.

Powers, 499 U.S. at 406.  The Court then held that a defendant of a different race has standing to raise the rights of jurors because, inter alia, “[t]he discriminatory use of peremptory challenges by the prosecution causes a criminal defendant cognizable injury” and “racial discrimination in the selection of jurors ‘casts doubt on the integrity of the judicial process.’”  Powers, 499 U.S. at 411 (quoting Rose v. Mitchell, 443 U.S. 545, 556 (1979)).

This reasoning leads to another conclusion that’s bad for us, however.  Batson doesn’t prevent discriminatory use of peremptory challenges by just the prosecution.  It also prevents discriminatory use of peremptory challenges by the defense.  The Supreme Court held this in Georgia v. McCollum, 505 U.S. 42 (1992).  It explained:

The majority in Powers recognized that “Batson ‘was designed “to serve multiple ends,”’ only one of which was to protect individual defendants from discrimination in the selection of jurors.”  499 U.S., at 406, 111 S. Ct., at 1368.  As in Powers and Edmonson[ v. Leesville Concrete Co., 500 U.S. 614 (1991)], the extension of Batson in this context is designed to remedy the harm done to the “dignity of persons” and to the “integrity of the courts.”  Powers, 499 U.S., at 402, 111 S. Ct., at 1366.

. . . Regardless of who invokes the discriminatory challenge, there can be no doubt that the harm is the same – in all cases, the juror is subjected to open and public racial discrimination.

But “[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.”  Batson, 476 U.S., at 87, 106 S. Ct., at 1718.  One of the goals of our jury system is “to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair.”  Powers, 499 U.S., at 413, 111 S. Ct., at 1372.  Selection procedures that purposefully exclude African-Americans from juries undermine that public confidence – as well they should.  “The overt wrong, often apparent to the entire jury panel, casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the cause.”  Id., at 412, 111 S. Ct., at 1371.

McCollum, 505 U.S. at 48-49.

So we have to be careful as defense attorneys not to rely on the characteristics such as race, gender, and sexual orientation that were discussed in the first Batson post and be prepared to justify challenges if the court requires a justification.  But if the justification reveals trial strategy or client confidences you don’t want to reveal, keep in mind one caveat the Supreme Court added to its holding in McCollum.  Though the Court thought this would be “the rare case,” it did suggest that when “the explanation for a challenge would entail confidential communications or reveal trial strategy, an in camera discussion can be arranged.”  Id., 505 U.S. at 58.

Finally, the reference to “procedures that purposefully exclude African-Americans” in the preceding quote from McCollum suggests another issue, namely, whether Batson applies to a peremptory challenge directed at a non-minority, white juror.  The courts of appeals that have considered the issue have held Batson applies to discrimination against any racial group, not just minority groups.  See United States v. Bennett, 664 F.3d 997, 1009-10 (5th Cir. 2011), vacated and remanded on other grounds, 133 S. Ct. 71 (2012); United States v. Thompson, 528 F.3d 110, 117-18 (2d Cir. 2008); United States v. Allen-Brown, 243 F.3d 1293, 1296-97 (11th Cir. 2001).  This probably includes rationales such as wanting a more racially diverse jury or wanting your minority client to have a jury that’s more like his “peers,” see Bennett, 664 F.3d at 1006 (quoting defense attorney justification of trying to get jury more closely resembling defendant’s peers); 6 Wayne R. Lafave et al., Criminal Procedure 149-50 (4th ed. 2015), though query whether this would be the case if you could show minorities are underrepresented in your jury pool and/or venire and you’re just trying to correct that underrepresentation.  Still, you should try to stay away from rationales too directly related to on race, gender, and/or sexual orientation and certainly avoid directly relying on those characteristics, unless you’re trying to set up an appellate issue.

So that’s a third Batson basic.  More next week – unless a more pressing topic comes up.