Batson Ethics for Prosecutors and Trial Judges
In the Chicago-Kent Law Review, Symposium on Race and Criminal Law, Vol. 73, No. 2, 1998
Posted: 27 Oct 1998
Date Written: February 1998
This article discusses how conscientious prosecutors and trial judges may effectively implement the ban on race-based peremptory challenges. The author begins by observing a disturbing anomaly: that prosecutors do not seem to treat their Batson obligations as seriously as they treat other constitutional obligations favoring defendants. The article traces this problem to a failure in Supreme Court opinion writing: that in condemning the previously accepted practice of racial strikes, Batson and its progeny provide no practical guide to what kind of strikes are legitimate. Worse, later cases blur the rationale of Batson by shifting the focus from the defendant's right at trial to a citizen's right to jury service. As a result, the author contends, even well-motivated prosecutors and trial judges treat the Batson obligation as a narrow and technical rule requiring only a plausible non-race reason for exercising a strike. Courts therefore permit prosecutors to justify strikes by factors that are highly correlated with and barely distinguishable from race. Addressing herself to conscientious prosecutors and trial judges, the author articulates a broader vision of the Batson obligation and provides a concrete ethical standard for assessing when a strike violates that obligation.
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