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Sean Noonan

“Object anyway!” said James Kirkland Batson to his defense attorney when the prosecutor struck the only three black jurors from the venire during jury selection for his trial.[1] When Mr. Batson first inquired about the seemingly discriminatory peremptory challenges to his public defender, his attorney replied, the prosecutor does not need to disclose why he struck the jurors.[2] This did not sit right with Mr. Batson. He encouraged his attorney to object anyway, and his attorney did.[3] This choice was the catalyst that would lead to the monumental Supreme Court decision on peremptory challenges and the Fourteenth Amendment.[4]

In Batson v. Kentucky, the Supreme Court overruled Swain v. Alabama which held that peremptory challenges do not need explanations even if a juror was discriminately struck because of their race.[5] Batson created a three part challenge to an allegedly discriminatory peremptory strike.[6] First, “the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race.”[7] Second, “if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question.”[8] Third, “the court must [] determine whether the defendant has carried his burden of proving purposeful discrimination.”[9] Additionally, the burden on a Batson challenge “requires evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor, but ‘the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’ ”[10] Shortly after Batson, attorneys were still striking jurors based on race, because the Batson rule required that a prosecutor only provide a non-discriminatory reason for striking the juror, an easily bypassed requirement.[11] Trial judges accepting any explanation a prosecutor gives for striking a juror[12] accompanied by some of the Supreme Court’s subsequent rulings destroyed the Batson rule.[13] The Supreme Court missed the opportunity to rejuvenate the Batson rule in every case where it granted certiorari to decide on a Batson issue.[14]

How can the once iconic decision and push for an end to discriminatory peremptory challenges, which thirty-three years later is virtually ineffective, be restored? Many jurists and scholars have argued for an all-out ban on peremptory challenges.[15] Others have suggested solutions such as: making all peremptory challenges meet the “for cause” test which is mostly based on impartiality or capacity, keeping the peremptory challenge but basing it on a blind questionnaire, and lessening the requirement of a unanimous jury.[16] Still, others believe that, while Batson has flaws, it provides for legal ethics and for attorneys to take “moral responsibility for their professional actions.”[17] What if the there was a way to keep the burden of a Batson decision on trial courts and not the attorneys, who after all are charged with guarding the doors to the court and ensuring fairness and justice? Can this be done while also allowing appellate courts to retain their power to be the final arbiters of the trial courts?

Currently, the circuits are split on the interpretation of the Batson rule on whether a trial court needs to make “explicit findings of fact” in the third step of a Batson challenge.[18] A solution to this split may restore the once aspirational spirit of Batson. The Third Circuit holds that trial judges are required to make findings of fact in regards to the prosecution’s non-discriminatory explanation and the defendants evidence of purposeful discrimination.[19] In juxtaposition, the Eighth Circuit holds that trial court judges are not required to make findings of fact on the record in the third step in a Batson challenge.[20] The lack of clearly established precedent can be seen throughout the majority of the circuits.[21]  If the Supreme Court were to adopt the Third Circuit’s rule, judges would have to make findings of fact on the record of the credibility of the prosecutor, their reason for striking the juror, and the defendant’s evidence to prove purposeful discrimination.[22] This would force trial judges to hold the attorneys accountable and reduce discriminatory peremptory challenges. Furthermore, reviewing courts would have a record of judicial findings to determine if the trial court made an “appropriate inquiry.”[23] If the trial court did not make explicit findings of fact, is that grounds for reversible error? Should it be? If this rule were to be implemented as precedent, there would be a dramatic effect on jury selection at the trial level in state and federal courts as well as on appeal and for federal habeas corpus petitions.[24]

This Note will discuss how a new rule requiring trial court judges to make explicit findings of fact in the third step of a Batson challenge can breathe new life into the once hopeful Batson decision. This issue is both procedural and constitutional and this Note will discuss both. Part I of this Note will discuss a brief history of peremptory challenges and the history of the Batson rule and its progeny. Part II will discuss the ineffectiveness of the rule, possible fixes, such as an all-out ban on peremptory challenges or limiting them based on questionnaires, and a proposed solution to Batson’s ineffectiveness. Part III will explain the current circuit split on whether trial courts are required to make explicit findings of fact in the third step of a Batson challenge. This Part will also show how the Third Circuit rule is the most faithful to Batson and the Fourteenth Amendment. Part IV will analyze and predict how the Supreme Court should rule on this issue and whether it would adopt the proposed rule. This Part will explore the feasibility and application of requiring trial judges to make explicit findings of fact at Batson’s third step.





[1] Sean Rameswaram, Object Anyway, More Perfect, WNYC STUDIOS, (July 16, 2016)

[2] Id.

[3] Id.

[4] Id.

[5] Swain v. Alabama, 380 U.S. 202, 227 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986).

[6] Rice v. Collins, 546 U.S. 333, 338 (2006).

[7] Id. (citing Batson, 476 U.S. at 96–97).

[8] Id. (citing Batson, 476 U.S. at 97–98).

[9] Id. (citing Batson, 476 U.S. at 98).

[10] Id. (citing Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)).

[11] For some examples of prosecutor’s race-neutral explanation for striking jurors that made it all the way to the Supreme Court, see Rice v. Collins, 546, U.S. 333 (2006) (showing the prosecutor’s race-neutral reason was based on demeanor, the juror rolled their eyes); Snyder v. Louisiana, 552 U.S. 472, 2008) (prosecutors excluded the juror because they seemed nervous); Purkett v. Elm (juror had long, unkempt hair, a moustache, and a beard); Davis v. Ayala, 135 S. Ct. 2187, 2194 (2015) (explaining race-neutral reasons as uncertainty that jurors would be open to the death penalty, a juror had been a hold out on a prior jury, and an impression a juror was under the influence of drugs).

[12] See Coombs v. Diguglielmo, 616 F.3d 255, 258–59 (2010) (illustrating a trial judge’s acceptance of the prosecutor’s race-neutral reason: “I just didn’t like him, your Honor. I don’t really have a sound reason . . . . I don’t know, just the way he was looking at me.”).

[13] See Purkett v. Elem, 514 U.S. 765, 768 (1995) (“The second step of this process does not demand an explanation that is persuasive, or even plausible.”); see also Leonard L. Cavise, The Batson Doctrine: The Supreme Court’s Utter Failure to Meet the Challenge of Discrimination in Jury Selection, 1999 Wis. L. Rev. 501, 504 (1999) (describing how state courts accepted virtually all race neutral reasons without “questioning their sincerity or rationality of the reason.”).

[14] Nancy S. Marder, Foster v. Chatman: A Missed Opportunity for Batson and the Peremptory Challenge, 49 Conn. L. Rev. 1137, 1139–140 (2017).

[15] Laura I. Appleman, Reports of Batson’s Death Have Been Greatly Exaggerated: How the Batson Doctrine Enforces A Normative Framework of Legal Ethics, 78 Temp. L. Rev. 607, 607–08 (2005).

[16] Id. at 652–55.

[17] Id. at 657.

 [18] Higgins v. Cain, 720 F.3d 255, 268 (5th Cir. 2013); Anderson v. Vannoy, No. CV 18-7977, 2019 WL 2077126, at *13 (E.D. La. Apr. 26, 2019), report and recommendation adopted, No. CV 18-7977, 2019 WL 2076385 (E.D. La. May 10, 2019).

[19] Coombs v. Diguglielmo, 616 F.3d 255, 264 (3d Cir. 2010) (“Batson requires an appropriately tailored inquiry, an opportunity for opposing counsel to argue that the proffered reasons are pretextual, and a finding by the trial court. If it were otherwise—and an unexamined explanation were allowed to survive a Batson challenge, Batson inquires would quickly be reduced to a meaningless procedural ritual.”).

[20] Smulls v. Roper, 535 F.3d 853, 860 (8th Cir. 2008) (citing Miller-El v. Cockrell, 537 U.S. 322, 347 (2003)) (“[F]ederal law has never required explicit fact-findings following a Batson challenge, especially where a prima facie case is acknowledged and the prosecution presents specific nondiscriminatory reasons on the record.”).

[21] See infra Part III.

[22] Rice v. Collins, 546 U.S. 333, 338 (2006) (citing Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)).

[23] Coombs, 616 F.3d at 264.

[24] See Joshua C. Polster, From Proving Pretext to Proving Discrimination: The Real Lesson of Miller-El and Snyder, 81 Miss. L.J. 491, 508 (2012) (“Establishing and scrutinizing factors can also incentivize trial courts to make findings on the record for each factor, thereby aiding in appellate review.”); William H. Burgess & Douglas G. Smith, The Proper Remedy for A Lack of Batson Findings: The Fall-Out from Snyder v. Louisiana, 101 J. Crim. L. & Criminology 1, 28–29 (2011) (predicting future benefits for making the proper remedy for trial courts lack of Batson findings a reversal, instead of remand). Analogizing a requirement for explicit fact finding with Burgess and Smith’s requirement for automatic reversal, the “ex ante” results could be that trial judges would be incentivized to “be more conscientious in discharging the task that Batson requires” and “prosecutors will have a clearer incentive to ensure that an appropriate contemporaneous record is made . . . .” Id.


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