St. Mary's Law Journal


Fundamental to the existence of the rights guaranteed to every citizen is the assurance that the right to equal protection under the law will be defended at all costs. Key to the United States’ system of adjudication is the right to a trial by jury, which is embodied in the Sixth and Seventh Amendments to the Constitution. These rights are also incorporated into all state constitutions through the Fourteenth Amendment. During jury selection, the judicial system permits the elimination of a certain number of jurors without cause. This form of elimination is known as a peremptory challenge. Over time, however, the use of these challenges has transformed into a tool for purposeful discrimination. Recognizing this assault on the principle of equality, the United States Supreme Court in Batson v. Kentucky sought to end the unbridled use of peremptory challenges as a tool for racial discrimination. Unfortunately, Batson did not become the hoped-for cure; though over the past five years, on multiple occasions, the Supreme Court has explained, clarified, and fortified its Batson decision, Some circuit courts have cobbled together a divergent patchwork of different rules concerning applicability and waiver not decided by the Supreme Court. The circuit courts have engaged in their pursuit to answer lingering questions left by Batson. Such questions include whether challenging parties should rebut proffered race-neutral reasons to preserve error. Should trial and reviewing courts engage in sua sponte considerations of Miller-El II factors? What standard of review should an appellate court apply in reviewing trial court Batson determinations? These questions show the lack of uniformity between the circuit courts in the application of Johnson, Miller-El II, Rice, and Snyder. Until uniformity can be achieved, it is vital that practitioners recognize their respective circuit’s Batson jurisprudence when seeking to preserve clients’ rights under Batson.


St. Mary's University School of Law