Constitutionally selecting a jury – Part II

The jury selection process may seem straightforward, but there are some other considerations to take into account.

Among these is the fact that even though a peremptory challenge doesn’t require a reason, if the challenge isn’t exercised for a nondiscriminatory reason, it can be considered a violation of a defendant’s 14th Amendment right to equal protection of the law.

The landmark decision as to this principal is the 1986 United States Supreme Court decision in Batson v Kentucky.

James Batson was an African American who was convicted in 1982 of burglary and receiving stolen goods by a Louisville, Kentucky Circuit Court jury.

At the trial, the prosecutor had peremptorily challenged the four black jurors on the jury panel leaving an all white jury.

An appeal was taken claiming that the defendant’s constitutional rights to an impartial jury composed of persons representing a fair cross section of the community had been violated by this procedure.

In a 7 to 2 decision, the Supreme Court agreed and ruled that a prima facie case (one in which sufficient evidence is provided to make a decision unless the evidence is rebutted) of purposeful discrimination may be established in appropriate cases based solely on the evidence concerning the prosecutors exercise of a peremptory challenge.

To establish this claim the court found that the following must be shown:

• The defendant is a member of a cognizable racial group;

• The exercise of a peremptory challenge to exclude a member of a certain racial group from the jury;

• Circumstantial evidence that raises an inference that the peremptory challenge was exercised on the basis of race.

If a prima facie case is shown, the prosecutor must then rebut it with a believable race neutral explanation.

It is then up to the judge to decide if there has been an equal protection violation.

An objection to an alleged violation is called a Batson challenge. The protected classes have been expanded to include challenges based on ethnicity and gender.

Batson now also applies to challenges by criminal defendants and in civil cases.

John Adams once said, “Representative government and trial by jury are the heart and lungs of liberty.”

Ensuring that juries are properly selected is one way of protecting that liberty.

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