A Call to Criminal Courts: Record Rules for Batson

Abstract

Batson intended to eliminate the influence of race on jury selection, but a growing collection of empirical studies have documented its failure. The United States Supreme Court seems fully aware of Batson’s shortcomings, and has attempted to strengthen it by clarifying the evidentiary framework. In particular, the Court has clarified that statistical analyses of the pattern and practice of discrimination in a given jurisdiction are relevant to assessing the strength of a Batson claim. Doing so requires a clear record of jury selection that includes basic demographic information about potential jurors. Yet getting the basic information necessary to make such claims is often incredibly difficult, and often occurs only through discovery motions, persistence, and luck. We therefore offer a modest but fundamental proposal to expand the standard trial court record to include jury selection data. This simple reform would impose little cost, and would allow parties making Batson claims to make full use of the evidence the Court has deemed relevant to an inquiry designed to make the jury selection process as fair and race-neutral as possible.

Keywords: Batson, jury selection, equal protection, Legal Empiricism, and courts