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99 Yale L.J. 187 (1989-1990)
Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings

handle is hein.journals/ylr99 and id is 197 raw text is: Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings Brett M. Kavanaugh Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill-equipped to second-guess those reasons.I In Batson v. Kentucky,2 the Supreme Court held that a prosecutor's purposefully discriminatory use of. peremptory challenges3 against venirepersons of the same race as the defendant violated the equal protec- tion clause of the Fourteenth Amendment.4 Batson eased the difficult bur- den of proof that the Court had imposed on defendants in Swain v. Ala- bama.' Swain required a defendant challenging the prosecution's practices to prove repeated striking of blacks over a number of cases. In Batson the 1. Batson v. Kentucky, 476 U.S. 79, 106 (1986) (Marshall, J., concurring). 2. 476 U.S. 79 (1986). 3. After the group of prospective jurors has been assembled, each side is allowed an unlimited number of challenges for cause, which are made on a narrowly specified, provable, and legally cognizable basis of partiality. Swain v. Alabama, 380 U.S. 202, 220 (1965). In addition, each side is allowed a specified number of peremptory challenges. These are made without a reason stated, with- out inquiry and without being subject to the court's control. Id.; see J. VAN DYKE, JURY SELECTION PROCEDURES: OUR UNCERTAIN COMMITMENT TO REPRESENTATIVE PANELS 139-75 (1977). Pe- remptory challenges are not a constitutional right. Batson, 476 U.S. at 91; Swain, 380 U.S. at 219. 4. The Court based its decision in Batson on the equal protection clause of the Fourteenth Amendment rather than on the Sixth Amendment right to trial by an impartial jury. Prior to Batson, two federal circuits had utilized the Sixth Amendment as the basis for prohibiting a prosecutor's discriminatory use of peremptory challenges to sidestep the almost impossible burden that Swain v. Alabama imposed on a defendant. Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985), vacated, 478 U.S. 1001, affd on reconsideration, 801 F.2d 871 (6th Cir. 1986), cert. denied, 479 U.S. 1046 (1987); McCray v. Abrams, 750 F.2d 1113 (2d Cir. 1984), vacated, 478 U.S. 1001 (1986). Prior to Batson, five state courts used state constitutional equivalents to the Sixth Amendment to reach the same result. People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 148 Cal. Rptr. 890 (1978); Riley v. State, 496 A.2d 997 (Del. 1985); State v. Neil, 457 So. 2d 481 (Fla. 1984); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881 (1979); State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct. App. 1980). The Supreme Court has granted certiorari in a case raising the question whether the fair cross-section requirement of the Sixth Amendment prohibits the prosecution's racially discriminatory use of peremptory challenges, specifically in the context of a white defendant objecting to the removal of black jurors. Holland v. Illinois, 121 Ill. 2d 136, 520 N.E.2d 270 (1987), cert. granted, 109 S.Ct. 1309 (1989). The Court in the context of death qualification for jurors has stated that an exten- sion of the fair-cross-section requirement to petit juries would be unworkable and unsound. Lockhart v. McCree, 476 U.S. 162, 174 (1986). See infra text accompanying notes 82-87. 5. 380 U.S. 202 (1965).

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