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56 Wm. & Mary L. Rev. 1859 (2014-2015)
Solving Batson

handle is hein.journals/wmlr56 and id is 1915 raw text is: SOLVING BATSON

The Supreme Court faced an important ideological choice when it
banned the racial use of peremptory challenges in Batson v. Ken-
tucky. The Court could either ground the rule in equality rights
designed to protect potential jurors from stereotyping, or it could base
the rule on the defendant's Sixth Amendment right to an impartial
jury drawn from a fair cross-section of the community. By choos-
ing the equal protection analysis, the Court turned away from the
defendant and the fair functioning of the criminal justice system,
and instead focused on protecting potential jurors. In doing so, the
Court built a fatal error into the Batson rule, a doctrine which has
failed to meaningfully reform jury selection.
This Article proposes to revisit that fork in the road, and for the
first time, to describe how a Sixth Amendment test would function
far better in comparison to the present rule. Unlike Batson, a Sixth
Amendment test would focus on the impact of jury selection on
diversity instead of attempting to divine the subjective intent of
lawyers. The test would function as follows: If peremptory challenges
skewed the diversity of suspect classifications on the jury, then a
lawyer would need to justify his strikes with reference to specific and
individualized concerns about each juror's impartiality. The judge
would then balance the strength of the proffered reason for the strike
against the value of the lost diversity. Although this remains a
* Associate Provost for International Affairs, Felder-Fayard Associate Professor, Tulane
Law School; J.D., magna cum laude, Harvard Law School; and former Assistant United States
Attorney. Special thanks to Brandon Garrett, Chris Slobogin, Jeffrey Bellin, Andrea
Armstrong, Pamela Metzger, Janet Hoeffel, Anna Van Cleave, Adam Feibelman, Keith
Werhan, and Claire Dickerson for their helpful commentary, and to Alexandra Fleszar for her
excellent and tireless research assistance.


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