The Application of Equal Protection to Prospective Jurors With Disabilities: Will Batson Cover Disability-Based Strikes
75 Pages Posted: 27 May 2010
Date Written: 1993
It has been said that a case is decided once the jury is seated. In making peremptory strikes, the practitioner must make determinations based on simple questions and assumptions. But what about those prospective jurors with disabilities? How does deafness impact a juror’s ability to process evidence? Will a person with a disability have more empathy for a victim or defendant? Is there evidence that needs to be heard to be understood?
In Batson v. Kentucky, 476 U.S. 79 (1986), the Court applied the Equal Protection Clause to require prosecutors to give a race-neutral explanation for alleged purposeful racial discrimination in their use of peremptory strikes. Written just prior to the Court’s decision in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (intentional discrimination based on gender in jury selection also violates equal protection) and in anticipation of the explosion of post-Batson inquiries about the context in which the Equal Protection Clause applies, this article explores the use of peremptory strikes to exclude jurors with disabilities as well as principles regarding discrimination in the use of peremptory challenges. The article argues that in Batson, the Court fashioned a new kind of Equal Protection analysis formed by the interplay of evolving concepts of law and changing cultural assumptions. Batson, therefore, the author argues should be extended beyond race to protect jurors with disabilities.
Keywords: Equal Protection, jury, Batson v. Kentucky, disability
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