Julia Haigney
84 Geo. Wash. L. Rev. 1075
Serving on a jury is an important civic duty. As such, the exclusion of potential jurors on the basis of their race, gender, or other discriminatory characteristics violates their rights under the Equal Protection Clause of the Fourteenth Amendment, according to Batson v. Kentucky and its progeny. This Note proposes replacing the practice of comparative juror analysis with increased deference to trial courts to determine an attorney’s intent in striking a particular juror. This Note supports this proposal by exploring the Ninth Circuit’s recent decision in SmithKline Beecham Corp. v. Abbott Laboratories and its implications for Batson’s three-part test to challenge a discriminatory peremptory strike. Specifically, this Note focuses on how the Ninth Circuit’s decision highlights the practical limitations of conducting a comparative juror analysis for “nonvisible” protected classes.
Comparative juror analysis became central to the three-part Batson test following the Supreme Court’s decision in Miller-El v. Dretke. In that case, the Court emphasized that trial judges should effectuate Batson’s third prong by comparing a struck juror with “nonstruck” panelists to determine if the reason proffered for the removal was pretextual. But this process is problematic because it assumes that a person has a “categorical identity” that is easily identifiable to the public.
Even prior to the Ninth Circuit’s extension of Batson, this aspect of comparative juror analysis presented challenges. First, comparative juror analysis does not address how to treat nonvisible—and therefore not-easily-identifiable—traits. For example, comparative juror analysis fails to articulate how to treat persons who may be multiracial and who still may be struck for discriminatory reasons. Second, comparative juror analysis fails to articulate whose perspective is considered (e.g., if multiracial jurors identify as “white,” but the litigants identify them as “black”).
These shortcomings are particularly relevant when Batson’s protections are extended to sexual orientation. Specifically, because comparative juror analysis assumes that protected traits are visibly apparent, this prong fails to address the nonvisible nature of sexual orientation. This is true both for the struck juror, who must be a “member” of the protected class to meet Batson’s first prong, and for the entire panel, whose treatment must be compared to that of the struck juror to determine if the proffered reason for the peremptory strike was pretextual. With this in mind, this Note proposes eliminating the use of comparative juror analysis and, instead, proposes that greater deference be given to trial courts to determine the intent of the attorney exercising the strike.
