C. Trial Strategy

1. Jury Selection

Lawyers selecting a jury in a criminal case are allocated a predefined number of peremptory challenges, which they can use to eliminate prospective jurors without justification. Under the Due Process Clause of the Fourteenth Amendment, these strikes cannot be used to eliminate jurors based on their race. The prohibition against race-based strikes is clear, but policing the rule is far murkier. Courts routinely uphold peremptory challenges based on largely unverifiable race-neutral explanations, for example, those based on avoiding eye contact, possessing an apparent lack of intelligence, or showing signs of nervousness. Indeed, it is so difficult to detect conscious evasion of the prohibition against racially motivated strikes that Justice Powell noted in Batson,"[P]eremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to

Striking black jurors used to be based on explicit racism. For instance, in Miller-el v. Cockrell, the U.S. Supreme Court discussed a trial manual (titled Jury Selection in a Criminal Case) used in the Dallas County District Attorney's Office in the 1960s and 70s. Among the advice offered by the manual to trial prosecutors: "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well Even in the twenty-first century, prosecutors struggled to mask racially motivated strikes. For example, in one Louisiana capital case, the prosecutor explained that he struck one black juror because he was "the only single black male on the panel with no There is less reason to believe that the vast majority of prosecutors today strive to strike jurors on the basis of race. This does not mean that race-based strikes are not a problem. Indeed, Justice Breyer recently noted that "[he] was not surprised to find studies and anecdotal reports suggesting that, despite Batson, the discriminatory use of peremptory challenges remains a

Implicit racial bias might help to explain why egalitarian-minded prosecutors nonetheless disproportionately strike black jurors. In addition to the stereotype that black citizens are prone to criminality (and thus might sympathize more with those who commit crime), prosecutors might associate black citizens with lack of respect for law enforcement and opposition to the prosecution of drug crimes or use of the death penalty as a punishment. If a prosecutor questions a prospective black juror, the simple act of even talking to that person might activate any of these negative stereotypes as well as more general negative implicit attitudes, causing the prosecutor to think or feel negative thoughts about the juror. The prosecutor might project this negativity through body language and gestures, which could, in turn, cause jurors to avoid eye contact, provide awkward or forced answers that make the juror appear less intelligent, or simply fidget and look nervous. Thus, even accurate raceneutral behavior descriptions might stem from racialized assessments (albeit, without conscious thought) of the characteristics of individual jurors.