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88 Colum. L. Rev. 355 (1988)
Discrimination by the Defense: Peremptory Challenges after Batson v. Kentucky

handle is hein.journals/clr88 and id is 365 raw text is: NOTES DISCRIMINATION BY THE DEFENSE: PEREMPTORY CHALLENGES AFTER BA TSON V. KENTUCKY INTRODUCTION In Batson v. Kentucky,' the Supreme Court held that prosecutors may not use peremptory challenges to discriminate on the basis of race. The Batson Court stopped short of banning discrimination completely, however. In federal courts and all but a few state courts,2 defendants may openly use peremptory challenges to discriminate in the jury selec- tion process.3 This Note argues that the continued use of discriminatory peremp- tory challenges by defendants violates the equal protection clause and erodes the community's belief in the fairness of the justice system. Part I discusses the equal protection limitations placed on prosecutors' use of peremptory challenges in Batson. Part II applies Batson to defendants and concludes that allowing defendants to discriminate on the basis of race violates the equal protection rights of the excluded jurors. Part III suggests that defendants' peremptory challenge use should be limited as is prosecutors' use and that prosecutors have standing to assert the rights of excluded jurors. I. PROSECUTORS AND PEREMPTORY CHALLENGES The Supreme Court first addressed the question whether prosecu- tors could use peremptory challenges to strike venire members solely on the basis of race in Swain v. Alabama.4 It held that peremptorily chal- lenging all blacks5 on the venire6 in one case did not necessarily deny 1. 106 S. Ct. 1712 (1986). 2. Prior to Batson, three states had declared that discrimination in the use of pe- remptory challenges by either party violates their state constitutional equivalents of the sixth amendment. See People v. Wheeler, 22 Cal. 3d 258, 276-77, 583 P.2d 748, 761-62, 148 Cal. Rptr. 890, 903 (1978); State v. Neil, 457 So. 2d 481, 486 (Fla. 1984); Commonwealth v. Soares, 377 Mass. 461, 486, 387 N.E.2d 499, 513, cert. denied, 444 U.S. 881 (1979). 3. See Batson, 106 S. Ct. at 1718 n.12 (We express no views on whether the Constitution imposes any limit on the exercise of peremptory challenges by defense counsel.). 4. 380 U.S. 202 (1965). 5. Both Swain and Batson involved black defendants and black jurors. This Note does not discuss whether Batson also applies to other racial groups or to women. In Batson, however, the Court repeatedly used the term cognizable racial group rather than black, see infra note 17 and accompanying text, implying that its holding applies at least to other minority racial groups. Whether cognizable racial group includes whites is an open question. 355

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