How Do You Make a Civil Batson Challenge?
During jury selection, a lawyer has several discretionary “strikes” or “challenges” that he or she may use to eliminate potential jurors. Unlike challenges for cause, which require the lawyer to explain why the juror could not fairly adjudicate the case, these discretionary or “peremptory” challenges do not need to be justified. A lawyer can use a peremptory challenge to strike someone for almost any reason.
Often peremptory challenges are used to strike people with particular occupations (insurance adjustors, police officers) but they can just as easily be used to strike potential jurors based on the hat that they are wearing or the manner in which they answer questions. My sister, a busy small business owner who would suffer real hardship from jury service, always picks one set of lawyers to glare silently at during jury selection – “gives ‘em a real stink eye.” She claims to have drawn a peremptory challenge every time she has been called.
Apart from the number of challenges available, there is one major restriction on this right to strike jurors. An attorney may not use a peremptory challenge to strike jurors based on a legally protected status, such as race or sex. If an attorney believes that opposing counsel has done so, he or she may seek to have that peremptory strike overruled. This right was first established in Batson v. Kentucky, [1] and as such, these complaints about discrimination in jury selection are generally called “Batson challenges.”
While the overwhelming majority of Batson challenges are made in criminal trials, civil litigants have an equal right to a jury selection process free of invidious discrimination. [2] So how precisely do you make a civil Batson challenge?
Whether civil or criminal, Batson challenges use a three-step process. First, “the opponent of a peremptory challenge” must make “out a prima facie case of… discrimination.” [3] This requires the attorney making the challenge to “show that the circumstances raise an inference of …discrimination,” an inference that “may stem from a pattern of strikes against minority jurors included in the particular venire or even from the manner of the [opponent’s] questions and statements during voir dire examination.” [4]
As a practical matter, this first step will almost always involve pointing out that the adversary has struck racial minorities or women as potential jurors. Obviously, if opposing counsel is unhinged enough to make outwardly racist or sexist statements during jury selection, that will simplify matters. But even absent flagrant bigotry, a pattern of strikes against a race or gender (particularly if a lawyer strikes all women, or all men of color from a jury) is generally suffices to satisfy the first step.
Once this first step is satisfied “the burden of production shifts to the proponent of the strike to come forward with a …neutral explanation.” [5] The lawyer that originally tried to strike a juror must disclose why they did so. He or she must provide a justification for the peremptory challenge “based on something other than the race [or gender] of the juror.” [6]
While Batson itself states that this explanation must be “clear and reasonably specific” and “related to the particular case to be tried,” [7] in practice the “neutral explanation” involves one of the most trivial legal burdens you will ever come across. The explanation does not have to be a good reason for a strike. Nor does it have to be something about the juror that would amount to a for-cause challenge or would otherwise call the juror’s neutrality or competence into question. The “neutral explanation” can be any conceivable reason for the peremptory strike other than “Sure, I struck him because of race” or “Yeah, I was totally striking all of the women.” [8] The reason is categorically not required to “make sense.” [9] For example, in Purkett, the Supreme Court upheld a “neutral explanation” that a party “struck juror number 22 because he had long, unkempt hair, a mustache, and a beard.” [10]
The final step in a Batson challenge is for the court to “determine the credibility of the proffered explanations” [11] that is whether the “stated reasons were the actual reasons or instead were a pretext for discrimination.” [12] In essence, the court needs to conclude whether the party accused of discrimination is lying. They rarely do so. For example, a 2016 study found that the North Carolina Appellate Courts had considered 114 Batson challenges in the thirty years since Batson and never once upheld a challenge. [13]
So, against that dismal record, how can you show that a “neutral explanation” is false and actually win a Batson challenge? There are a few methods that have found success.
First, you can argue that at least some of the “neutral explanations” offered by opposing counsel are simply false. For example, if an attorney claims to have struck a juror based on a statement that the juror made, showing that the juror did not, in fact, make that statement (or that the attorney radically mischaracterized the statement) has been found to demonstrate pretext for Batson purposes. [14] This can work even if the attorney also offered other “neutral” explanations for the strike, on the theory that having told one lie about the reason for a strike is sufficient to cast doubt on the attorney’s credibility. [15]
Second, you can argue that the explanations are too vague to be credible. Courts do occasionally uphold Batson challenges where the only explanation offered amounted to a “bad feeling” [16] or amorphous objections to the juror’s “demeanor.” [17]
Third, you can point to the attorney’s questioning of jurors of different backgrounds to suggest disparate treatment. For example, if a lawyer claimed to have struck jurors based on their feelings about corporations, or the police, or unions, you should examine whether that attorney questioned all jurors on those topics or only jurors who belonged to certain racial or demographic groups. [18]
Fourth, you can argue that the explanation applies equally to jurors that were not struck. For example, if an attorney claims to have struck a juror because he or she claimed that jury service would interfere with work, you can point to numerous other jurors who made the same complaint. [19] Or if a juror expressed ambivalence about imposing certain judgments against a defendant, you can point to other jurors who expressed the same (or more) ambivalence. [20]
To be clear, Batson challenges are rarely successful and none of these methods are high probability shots. But familiarizing yourself with arguments that have sometimes worked in the past can give you a fighting chance should you see opposing counsel culling the jury pool in what appears to be a discriminatory manner.
[1] 476 U.S. 79 (1986).
[2] J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 (1994) (“We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.”).
[3] Purkett v. Elem, 514 U.S. 765, 767 (1995).
[4] United States v. Diaz, 176 F.3d 52, 76 (2d Cir. 1999).
[5] Purkett, 514 U.S. at 767.
[6] Hernandez v. New York, 500 U.S. 352, 360 (1991).
[7] Batson, 476 U.S. at 98.
[8] See Jack B. Harrison, Is A Green Tie Enough? - Truth and Lies in the Courtroom, 75 Okla. L. Rev. 687, 731–32 (2023) (“Trial courts have, for example, rejected a defendant's objection to the use of a peremptory strike, accepting the explanation that “the potential black juror was young and single,” or was “of age and married but was too pregnant,” or had a last name similar to the defendant's last name. Other courts have accepted a wide range of explanations for the peremptory dismissal of African American jurors, such as they were unemployed or underemployed; or they worked as social workers, or federal employees, or scientists, or associates of radio or television stations that aired programs considered to be anti-law enforcement. Courts have also approved a prosecutor's dismissal of an African American juror simply because of his looks, posture, or lack of eye contact.”).
[9] Purkett, 514 U.S. at 769 (“What it means by a ‘legitimate reason’ is not a reason that makes sense, but a reason that does not deny equal protection.”).
[10] Purkett, 514 U.S. at 769.
[11] Barnes v. Anderson, 202 F.3d 150, 156 (2d Cir. 1999).
[12] Flowers v. Mississippi, 139 S. Ct. 2228, 2241 (2019).
[13] Daniel R. Pollitt & Brittany P. Warren, Thirty Years of Disappointment: North Carolina's Remarkable Appellate Batson Record, 94 N.C. L. REV. 1957 (2016).
[14] Rivera v. Nibco, Inc., 372 F. App'x 757, 759–60 (9th Cir. 2010) (upholding Batson challenge where proffered explanation “was completely unfounded and has no support in the record” and the attorney “conflated two unrelated statements in asserting otherwise.”).
[15] Lewis v. Lewis, 321 F.3d 824, 833 (9th Cir. 2003) (“Although the prosecutor had offered valid reasons for both strikes, we concluded that the fact that he had also offered reasons that did ‘not hold up under judicial scrutiny’ undermined his credibility such that the trial court's finding was unwarranted.”).
[16] Alex v. Rayne Concrete Serv., 951 So. 2d 138, 148 (La. 2007) (rejecting claim that “She and I just didn't get good vibes” as a “neutral explanation.”).
[17] See generally Harris v. Hardy, 680 F.3d 942, 965 (7th Cir. 2012) (“Demeanor-based explanations for a strike are particularly susceptible to serving as pretexts for discrimination.”).
[18] Miller-El v. Dretke, 545 U.S. 231, 245 (2005) (“In sum, nonblack jurors whose remarks on rehabilitation could well have signaled a limit on their willingness to impose a death sentence were not questioned further and drew no objection, but the prosecution expressed apprehension about a black juror's belief in the possibility of reformation even though he repeatedly stated his approval of the death penalty and testified that he could impose it according to state legal standards even when the alternative sentence of life imprisonment would give a defendant (like everyone else in the world) the opportunity to reform.”).
[19] Snyder v. Louisiana, 552 U.S. 472, 480 (2008) (rejecting explanation based on interference with work where the struck juror “was 1 of more than 50 members of the venire who expressed concern that jury service or sequestration would interfere with work, school, family, or other obligations.”).
[20] Miller-El, 545 U.S. at 248 (“On the face of it, the explanation is reasonable from the State's point of view, but its plausibility is severely undercut by the prosecution's failure to object to other panel members who expressed views much like Warren's.”).
