The Non-Discrimination Ideal of Hernandez v. Texas Confronts a Culture of Discrimination: The Amazing Story of Miller-El v. Texas
25 Chicano-Latino Law Review 97 (2005)
42 Pages Posted: 17 Nov 2017
Date Written: 2005
This Article adds another voice to the body of literature calling for the abolition of the use of peremptory strikes in order for racial discrimination in jury selection to be eradicated. The Article begins in Part I with a brief review of the history of racial discrimination in jury selection from the nineteenth-century to the 1950s. It traces the development of the Supreme Court's non-discrimination principle as applied in cases in which African-Americans were systematically excluded from jury service.
Part II of the Article highlights the importance of Hernandez v. Texas as the first case to broaden the non-discrimination concept to include all identifiable groups. This part describes the evolution of the Court's non-discrimination jurisprudence as it extended its reach to include ethnic minorities and women. The constitutional protections against discrimination in jury selection even include a "fair cross-section" requirement, but this requirement only applies to the creation of jury lists and does not place any limits on the use of peremptory challenges in selecting actual jurors. The last section of Part II provides an empirical analysis of appellate case law reviewing claims of discrimination to determine whether Batson's three-part rule appears to provide an effective remedy for discrimination in the use of peremptory strikes.
In Part III, the Article tells the amazing story of Miller-El v. Texas, a case that has the potential to change the course of jury selection toward the realization of diverse juries, but which also has the potential to be a testament to the failure of Batson to eradicate discrimination in voir dire.
Keywords: Juries, Racial Discrimination, Peremptory Strikes, Voir Dire
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