COURTS
By Judge Steven Kirkland, Judge Latosha Lewis Payne and Judge Ravi K. Sandill
T
ticipating in the “administration of law” violated the Fourteenth Amendment.5 The Strauder Court did not address the issue of peremptory challenges. However, that issue was front and center when the Court considered peremptory challenges in Swain v. Alabama in 1965. The Swain Court stated that the mere allegation of discrimination was not enough and that it must be proven.6 After discussing the origins of the peremptory challenge and its seemingly inviolate nature, the Court concluded that the exercise of peremptory strikes should not be regulated by the courts.7 The gist of the opinion is encapsulated in the following quote, “[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause.”8 Twenty-one years later, in Batson v. Kentucky, the U.S. Supreme Court finally recognized that courts have a duty to make sure a person’s Fourteenth Amendment right to serve on a jury is not violated during the selection process and established a test to determine whether that right had been violated.9 Central to the Court’s decision was the belief that “selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”10
The Rise of Batson and Its Progeny The first time the United States Supreme Court invoked the Fourteenth Amendment as it relates to race in jury selection was in Strauder v. West Virginia in 1879.3 West Virginia had excluded anyone who was not a white man from serving on a jury.4 The Strauder Court made clear that excluding African-Americans from par-
The Batson Challenge The Batson Court created a three-step burden-shifting paradigm to challenge the use of race-based peremptory strikes. In 1991, the U.S. Supreme Court, in two separate cases, expanded Batson into civil matters and ruled that the party exercising a Batson challenge does not need to be the same race as the excluded potential juror.11 The Court prohibited peremptory strikes based solely on gender in 1996.12 Texas has not expanded regulation of peremptory strikes beyond what the U.S. Supreme Court has done. The current framework for a Batson
Batson:
Protecting Every Citizen’s Right to Participate in Jury Service his article1 will provide a brief overview of the case law that brought us Batson v. Kentucky and its progeny.2 We will then give you a flavor for our experiences with Batson challenges, and we will discuss the possible reasons for the small number of Batson challenges we have seen. Finally, we will offer some recommendations for the Bar to help reduce the stigma of Batson challenges and to ensure that they are made when appropriate.
