Discrimination in Jury Selection

During the legal process, the defense attorney and the prosecutor have the opportunity to question a pool of potential jurors. The questioning process, called voir dire, detects any biases jurors may have before placing them on the jury. If either attorney believes a juror has biases that might affect impartiality, a challenge for cause is used to dismiss the juror. Sometimes, however, prosecutors appear to dismiss jurors for discriminatory reasons.

Rules Against Racial Discrimination in Jury Selection

To strike a juror during voir dire, the attorney must state the reason for using a challenge of cause. Acceptable reasons may be that the juror was exposure to pre-trial publicity, was a victim in a similar case, or has a connection to the defendant. No attorney can request a challenge for racial or discriminatory reasons. However, the courts also give attorneys a limited number of peremptory challenges.

A peremptory challenge enables the attorney to request the courts dismiss a juror without having to state a reason. The point of allotting these challenges is to let attorneys act based on their gut feelings or personal experiences. Unfortunately, attorneys can also use peremptory challenges to dismiss a juror simply based on race, ethnicity, or gender. The legal system has had rules in place to prevent racial discrimination and/or racism in jury selection for decades. However, there is still a question of the selection process’s fairness.

The U.S. Supreme Court added a step to the process back in 1986 called the Batson rule. Based off the case Batson v. Kentucky, the Supreme Court initiated a rule that if the defense can prove that a prosecutor is striking jurors in a racial pattern, the prosecutor must justify each peremptory challenge with a nonracial reason. Prosecutors found a loophole in the Batson rule, however—they can simply come up with false reasons to dismiss a juror as a pretext for racial discrimination. For example, a prosecutor can question a black juror and jot down a nonracial reason that he or she can articulate later if the defense questions the challenge.

Ongoing Racial Discrimination in the Court System

Racial discrimination in the legal system is an ongoing problem. Judges afford prosecutors considerable leeway with their nonracial explanations of a challenge. In a trial in Rome, Georgia, the prosecutor challenged all qualified black jurors in the pool, using four of his nine peremptory challenges. The defense argued that the prosecutor was being discriminatory, but the trial judge all the way up to the Georgia Supreme Court accepted the nonracial reasons. Justifications included notes such as “divorced,” “a social worker,” and “looking bored.”

In this case, the defense obtained the prosecutor’s notes during the voir dire as evidence against the prosecutor. The prosecutor had highlighted the names of every black potential juror in green, circled them, and labeled them with a capital “B.” The state of Georgia continues to change its story for accepting the prosecutor’s nonracial reasons. It states that the prosecutor’s actions represented the “multifaceted nature of jury selection.” The U.S. Supreme Court is currently reviewing the case.

As our legal system continues to struggle past discriminatory roadblocks, many people on trial find themselves the victims of an unfair jury due to discrimination or race. A proven Batson violation typically results in the dismissal of the entire panel of jurors, the declaration of a mistrial, and the selection of a new jury. If an attorney proves a Batson violation after a jury convicts a defendant, the court of appeals can overturn the conviction and grant a brand new trial.