27 U. Mich. J.L. Reform 229 (1993-1994)
Excuses, Excuses: Neutral Explanations under Batson v. Kentucky

handle is hein.journals/umijlr27 and id is 237 raw text is: EXCUSES, EXCUSES: NEUTRAL EXPLANATIONS
UNDER BATSON V. KENTUCKY
Michael J. Raphael*
Edward J. Ungvarsky**
The legal struggle for racial justice in the United States
has always been in part a struggle to determine how best to
achieve racial equality. In 1986, in Batson v. Kentucky,' the
United States Supreme Court attempted to curb racial dis-
crimination in the use of peremptory challenges to strike
potential members of a jury. The Court mandated procedures
for determining whether a prosecutor had struck members of
the venire because of their race.2 The procedures furnished in
Batson are quite general, however, and lower courts have
used a variety of standards in implementing them. This
Article examines how lower courts have handled one impor-
tant Batson procedure-the neutral explanation3 that prose-
cutors must offer to explain their strikes-and suggests how
the treatment of neutral explanations can be improved.
In Part I of this Article, we provide some background infor-
mation necessary to explain our research and analysis. We
briefly explain the role of peremptory challenges in the venire
process, the precursors to Batson, and the Batson decision
itself. In Part II, we explain our methodology for analyzing the
lower court cases. In Part III, we discuss and analyze our
research concerning how courts have applied the neutral expla-
nation requirement of the Batson decision, and we present the
*    B.A. 1990, Rice University; J.D. 1993, Yale Law School. Law Clerk to the
Honorable Nathaniel R. Jones, United States Court of Appeals for the Sixth Circuit.
**   B.A. 1990, Wesleyan University; J.D. 1993, Yale Law School. Law Clerk to
the Honorable Frank M. Johnson, Jr., United States Court of Appeals for the
Eleventh Circuit.
The authors would like to thank Stephen Bright, Pamela Davis, Drew Days, Amy
Jeffress, Alex Oh, Eric Schnapper, Paul Sonn, and Jonathan Zasloff for their
assistance.
1.   476 US. 79 (1986).
2.   Recently, the Supreme Court extended Batson to peremptory challenges
based on a venireperson's gender. J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419,
(1994). We anticipate that courts will apply current Batson procedures for race-
based strikes to those allegedly based upon gender; thus, we believe our discussion
herein also will apply to procedures implementing J.E.B.
3.   The term is discussed and explained infra Part I.B.
4.   See Batson, 476 U.S. at 97-98.

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