St. Mary's Law Journal


Alan B. Rich


In Batson v. Kentucky, the United States Supreme Court overruled that portion of Swain v. Alabama, which had imposed a “crippling burden of proof” upon a person who wished to vindicate his right of equal protection under the Fourteenth Amendment in the face of a racially motivated peremptory challenge. Under Batson, a defendant can raise an inference of discrimination and prove it using only evidence adduced at his own trial. Two fundamental questions needing resolution prior to involving the Batson procedures are: (A) who has standing to bring a Batson challenge; and (B) who must be challenged before the Batson procedures take effect. Originally, Batson gives standing only to criminal defendants who are members of a racial minority group, and then only when challenging the strike of another member of his or her racial minority group. Later, in Powers v. Ohio, the Court held racial identity between the party-litigant and the stricken venireman is no longer required. Succeeding Edmonson v. Leesville Concrete Company, Batson challenges gave civil litigants standing to assert the equal protection rights to wrongfully excluded petit veniremen. Following Hernandez v. New York, the Court held Batson protections is no longer limited to racial minorities. Though there is no current holding on whether the Batson challenges are applicable for challenges to national origin, religious affiliation, or gender discrimination. The primary admonishment is to not discriminate on account of race, religion, or national origin in exercising your peremptory strikes. If peremptory strikes are exercised against a member of a minority group, attorneys must be certain the record fully discloses the neutral reasons, especially any objective data that can be introduced into the record. Even the purest of subjective strikes will more than likely have some related and objectively verifiable element associated with it.


St. Mary's University School of Law