Abstract

Excerpted From: Linette A. Duluc, Batson Fails Again: How the Resurgence of Black Lives Matter Highlights the Ease of Bypassing the Race-Neutral Requirement and Proposed Modifications to Refine the Standard, 55 Suffolk University Law Review 375 (2022) (210 Footnotes) (Full Document)

 

LinetteDulucRacism seeps into the process of jury selection--legally referred to as voir dire. A century of case law has proven this fact. Voir dire is a component of every American's Sixth and Fourteenth Amendment rights, by which a person may “enjoy the right to a speedy and public trial, by an impartial jury” and may not be deprived “of life, liberty, or properly, without due process of law.” Through voir dire, the trial judge and attorneys determine which potential jurors will eventually decide the outcome of a trial. Trial judges, using their discretion, decide the parameters of questioning prospective jurors to create an impartial and fair jury. Through peremptory challenges, the prosecution and defense may strike a potential juror from consideration for no stated reason.

In Peters v. Kiff, the United States Supreme Court held that the Equal Protection and Due Process Clauses protect against arbitrary juror exclusion, regardless of whether the juror and defendant are of different races. Later, in Batson v. Kentucky, the Court held that a party cannot strike a potential juror from duty solely because the juror and defendant share the same race. In the landmark decision, the Court pushed this notion further by establishing a three-part test to determine whether a peremptory challenge is racially based and therefore violates the Equal Protection Clause.

While Batson laid the standard for nondiscriminatory voir dire, attorneys still strike potential jurors based on their race. Prosecutors, in particular, successfully remove jurors for racial and ethnic purposes behind facially neutral justifications. For example, after the resurgence of the Black Lives Matter (BLM) social justice movement following the murder of George Floyd, prosecutors have incorporated seemingly race-neutral, BLM-related inquiries into juror questioning, causing further removal of jurors based on their race. BLM is a social justice movement created in response to police brutality with the mission to eradicate white supremacy. BLM originated from a now globally recognized hashtag, #BlackLivesMatter, sparked in 2013 from the acquittal of George Zimmerman in the case of Trayvon Martin's murder. In 2020, the movement surged again after a police officer murdered George Floyd, triggering the largest protests in U.S. history; BLM became a household name as a significant advocate and facilitator of these demonstrations.

This Note first explores the history of voir dire in both federal and state criminal trials, investigating how prosecutors use peremptory challenges in a manner that ultimately prevents the Black community from serving on juries. Then, it describes the standard for determining whether a peremptory challenge is founded in discrimination. This Note argues prosecutors used the revival of the BLM movement to create a new “race-neutral” avenue to disproportionately exclude racial and ethnic minorities from jury duty. Finally, this Note contends that detection of implicit bias in voir dire is essential to protect against this new route of discrimination. In light of changed understandings of implicit bias and its effects, this Note concludes with proposed modifications to the Batson standard to farther eliminate racial discrimination in voir dire.

[. . .]

Voir dire is an essential part of the criminal justice system: it sets the stage--and even potentially changes the outcome--of a criminal trial. Peremptory challenges provide the opportunity to skew the final jury, especially in cases with a Black defendant, where the prosecutor believes their case benefits from an all-white jury. Attempts to create a racially and ethnically homogenous jury offend the Constitution and also contradict both public preference and the functionality of juries, which support diverse juries. While the Batson test was designed to combat explicit biases, it ignores current learning about implicit bias, leaving a major problem undetected and unaddressed. This form of bias comes out through the inclusion of irrelevant BLM-focused questions presented to prospective jurors, who are nonetheless removed from serving despite attesting to their ability to deliberate impartially. As it stands, Batson cannot complete its goal of reducing discriminatory voir dire. The risk of accepting implicit bias through BLM questions is too great, and attorneys cannot continue unchecked. Nevertheless, systemic change is possible, and the court systems and legislatures hold significant power to create impactful improvements in the form of training, limiting BLM questioning, and Batson modifications.


Suffolk University Law School, J.D. 2022; Boston University School of Public Health, MPH 2018; University of Connecticut, B.S. 2015.