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Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney

56 Pages Posted: 16 Apr 2010 Last revised: 17 Sep 2011

Jeffrey Bellin

William & Mary Law School

Junichi P. Semitsu

University of San Diego School of Law

Date Written: April 16, 2010

Abstract

In Snyder v. Louisiana, the Supreme Court reaffirmed its commitment to rooting out racially discriminatory jury selection and its belief that the three-step framework established in Batson v. Kentucky is capable of unearthing racially discriminatory peremptory strikes. Yet the Court left in place the talismanic protection available to those who might misuse the peremptory challenge - the unbounded collection of justifications that courts, including the Supreme Court, accept as “race neutral.”

To evaluate the Court’s continuing faith in Batson, we conducted a survey of all federal published and unpublished judicial decisions issued in this first decade of the new millennium (2000–2009) that reviewed state or federal trial court rejections of a Batson challenge. In light of this study and studies that have come before, we conclude that Batson is easily avoided through the articulation of a purportedly race-neutral explanation for juror strikes. As a result, there is no reason to believe that Batson is, as the Court suggests, achieving its goal of eliminating race-based jury exclusion and little hope that it will ever do so. In light of our conclusion, this Article proposes an alteration to the Batson framework that we believe would enable trial courts to reduce the role of race in the jury selection process.

Keywords: Batson, voir dire, jury selection, equal protection, peremptory challenge, Commonwealth v. Cook

Suggested Citation

Bellin, Jeffrey and Semitsu, Junichi P., Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney (April 16, 2010). Cornell Law Review, Vol. 96, p. 1075, 2011; SMU Dedman School of Law Legal Studies Research Paper No. 73; San Diego Legal Studies Paper No. 10-021. Available at SSRN: https://ssrn.com/abstract=1591091

Jeffrey Bellin

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

Junichi P. Semitsu (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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