Article by Jere W. Morehead
There is nothing else quite like them in our society: A group of strangers brought together and required to sit in silence and listen to different versions of a story in which they have no personal interest, and who are then locked inside a room where they must stay while they try to sort out what they believe to be the truth from all they have heard.
The Supreme Court decision in Batson v. Kentucky has sparked considerable debate and litigation over the role of peremptory challenges and the appropriate operation of jury selection in the context of criminal proceedings. Prior to Batson, the Court had placed such a difficult burden of proof on defendants who contested perceived discrimination in the use of peremptory strikes that prosecutors were able to exercise this historical privilege virtually free of judicial scrutiny.
What the Supreme Court has not addressed is the possible extension of Batson to civil actions. This Article examines Batson and its progeny from that perspective—whether the equal protection principle of Batson should be applied in civil cases to prohibit the use of race-based peremptory challenges by attorneys representing private litigants.
This Article describes the general development of peremptory challenges and the Supreme Court's earlier position on their use. It then examines Batson and addresses the decision's impact on the use of peremptory challenges in criminal cases. Finally, this Article considers the extension of Batson to civil cases through the evaluation of two questions. First, whether state action must be found in civil actions, and if so, how? Second, should Batson, from a public policy standpoint, be extended to civil proceedings?
The Supreme Court's lack of guidance on Batson's application to civil trials left the few lower courts that have attempted to answer these questions in conflict. In Batson, the Court carefully side-stepped the issue of civil cases and focused instead on preserving the public's “respect for our criminal justice system.” Faced with no guidance from the Court in Batson or the more recent case of Holland v. Illinois, the lower courts have been unable to reach any meaningful consensus on questions surrounding Batson's application in civil cases. This Article seeks to resolve these questions in a manner that considers both the legal precedent established by Batson and the vital policy considerations that mandate the elimination of purposeful discrimination in our society.
About the Author
Jere W. Morehead. Assistant Professor of Legal Studies and Adjunct Assistant Professor of Law, the University of Georgia. Before joining the Georgia faculty, Professor Morehead served as an Assistant United States Attorney in the Department of Justice.
Citation
65 Tul. L. Rev. 833 (1991)