Supreme Court Reaffirms Protection Against Racial Discrimination in Criminal Trial Jury Selection

5/27/16  In a criminal case there are two types of challenges to prospective jurors, strikes for cause and peremptory strikes.  When a prospective juror is stricken for cause it means that the judge has determined that something the prospective juror has said or about their background renders them unfit to set fairly and impartially on the jury.  In addition to strikes for cause both the prosecutor and defense have a certain number of peremptory strikes which they can use to strike a prospective juror for no reason at all.  The number of peremptory strikes depends on the jurisdiction and the type of case.


In 1986 in a landmark case, Batson v. Kentucky, 476 U.S. 79, the United States Supreme Court held prosecutors cannot use peremptory strikes to strike jurors because of their race.  Historically this has been a serious problem in southern states where prosecutors have routinely used peremptory strikes to exclude blacks from juries where the defendant was black. When there is a possible Batson challenge the courts use the following procedure. First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Next, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question.  Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.  If the defendant shows purposeful discrimination then the prospective juror remains on the jury.


Over the years many would say Batson has lost its meaning because the burden has been very easy to meet.  Many have thought as long as the prosecutor has offered some non-racial reason for excluding the juror, the peremptory challenge is upheld and the prospective juror is excluded.


On May 23, 2016 in a strongly worded 7-1 opinion authored by Chief Justice Roberts, in Foster v. Chatman, No. 14–8349, the court reaffirmed Batson and did so by reversing the nearly thirty-year-old capital murder conviction from Georgia.  The court ruled prosecutors had committed Batson violations by wrongfully excluding four potential back jurors. In Foster the prosecutors did what is customarily done, namely offered as many as 14 race neutral reasons for the challenges. However what is noteworthy about the case, Justice Roberts who is not known to rule favorably for defendants went through the specifics of the prosecutor’s reasons and called them, “nonsense”, which implies he thought they were lying. The case is important because it should encourage trial judges not to simply take the prosecutors proffered non-racial reasons for the challenges but rather to carefully and critically analyze them.


The case is described in a New York Times article and editorial at:


The Foster case can be found at:


To listen to the oral arguments in the case go to:


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