Batson v. Kentucky (1986) – an opposing party cannot use a peremptory challenge to exclude a potential juror on the basis of race, ethnicity, or sex

     Note: This case is where the Batson challenge (and Batson rule) originated.

Batson Challenge (Batson Rule) – object that an opposing party has used a peremptory challenge to exclude a potential juror on the basis of race, ethnicity, or sex. 


     A circuit court in Jefferson County, Kentucky, refused to discharge a jury where the prosecutor had used peremptory challenges to strike African American jurors in the trial of a black defendant. The Kentucky Supreme Court affirmed.


      Are peremptory challenges exercised to exclude individuals on the basis of race subject to equal protection review?




J. Powell (7-2). Powell decided that this case called for a review of Swain v. Alabama, 380 US. 202 (1965).  In Strauder v. West Virginia, 100 US. 303 (1880), the Court had rejected schemes that excluded racial minorities from the jury pool.  The harm of such exclusion extends into the entire community by undermining “public confidence in the fairness of our system of justice.”  Although Swain permitted blacks to show purposeful discrimination in the use of peremptory challenges, it placed “a crippling burden of proof” on the defendants.  Powell altered this burden.  In cases where a defendant can show he or she is “a member of a racial group capable or being singled out for differential treatment,” the defendant may then require the state “to come forward with a neutral explanation for challenging black jurors.” “The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race.” This decision does not eviscerate peremptory challenges but simply requires “trial courts to be sensitive to the racially discriminatory use of peremptory challenges.

     J. White, concurring, agreed that Swain v. Alabama should be overturned to the extent that it required a defendant to offer proof of discrimination that extended beyond the defendant’s own case.  White did not believe this decision should be applied retroactively.

     J. Marshall, concurring, called for the complete elimination of peremptory challenges, which he believed have the “inherent potential . . . to distort the jury process by permitting the exclusion of jurors on racial grounds.

     J. Stevens, concurring, defended himself against charges of inconsistency raised in the dissenting opinions.

     C.J. Burger, dissenting, accused the Court of ignoring “settled principles.”  He noted that the defendant had argued before the Court on the basis of the Sixth Amendment rather than the equal protection clause; he did not think the Court should decide the latter issue without full argument.  Burger further distinguished the exclusion of African Americans from the jury pool and their exclusion from individual juries through peremptory challenges.  By definition, peremptory challenges do not require counsel to supply reasons.  The majority decision is likely to inject racial considerations back into the jury selection process.

     J. Rehnquist, dissenting, argued that the Court was rejecting long-established practices and precedents on the basis of too little argument.  He believed it was often necessary to use “group affiliations, such as age, race, or occupation, as a ‘proxy’ for potential juror partiality, based on the assumption or belief that members of one group are more likely to favor defendants who belong to the same group.


Batson v. Kentucky, 476 US. 79; 106 S. Ct. 1712; 90 L. Ed. 2d 69 (1986)


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[1]: Rowman & Littlefield’s Essential Supreme Court Decisions 16th Edition by John R. Vile.  p 114.


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