The Supreme Court's adoption in Batson v. Kentucky of Title VII's three-step, burden-shifting procedure to determine whether an attorney impermissibly exercised a race-based peremptory challenge has been criticized for failing to give trial courts adequate guidance regarding the burdens of the parties at each step. Courts have required relatively low showings to meet the first and second steps of the Batson inquiry: the prima facie case of intentional discrimination and the neutral explanation steps, respectively. Thus, Batson's third and final step, the trial court's determination as to proof of purposeful discrimination, is too important to lack guidelines.
This Note will focus on the relevant factors that the trial judge should consider in determining whether the opponent of the peremptory strike has carried her burden of proving purposeful discrimination. The New York Supreme Court, Appellate Division, recently established a multi-factor approach to determining whether a proffered neutral explanation is pretextual. The following factors should be considered in determining proof of intentional discrimination because they tend to indicate pretext: (1) relation to the case; (2) lack of questioning; (3) disparate questioning; (4) disparate treatment; and (5) degree to which the attorney was motivated by intuition. This Note argues that when trial courts use multifactor approaches, they establish better records in the case of appeal, as well as ensure the equal protection rights of all litigants and potential jurors. Courts should employ a multi-factor approach because it gives trial courts the essential guidelines needed to render Batson's mandate to eradicate invidious racial discrimination in jury selection meaningful.
Tracy M. Y. Choy,
Branding Neutral Explanations Pretextual under Batson v. Kentucky: An Examination of the Role of the Trial Judge in Jury Selection,
48 Hastings L.J. 577
Available at: https://repository.uchastings.edu/hastings_law_journal/vol48/iss3/3