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Improving Jury Selection Procedures
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A PARTY SHOULD RAISE ANY BATSON OBJECTIONS TO THE OPPOSING PARTY’S PEREMPTORY CHALLENGES BEFORE THE JURY IS IMPANELED. THE COURT SHOULD EXERCISE ITS DISCRETIONARY POWER TO RAISE BATSON OBJECTIONS ON ITS OWN MOTION. BATSON CHALLENGES, AND OBJECTIONS TO THESE CHALLENGES, SHOULD BE HANDLED OUTSIDE THE JURORS’ PRESENCE.
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Batson Objections
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The U.S. Supreme Court cases of Batson v. Kentucky and Ford v. Georgia provide a three-step inquiry at the trial court level to determine if prohibited race or gender discrimination in jury selection has occurred. The first step requires the objecting party to show that a peremptory challenge was exercised against a member of a constitutionally cognizable group. Second, that party must show that the use of the peremptory challenge and other relevant circumstances raise an inference of discrimination. If the objecting party is able to establish a prima facie case of discrimination, the third step requires the other party to offer a race/gender-neutral explanation for its use of the peremptory challenge.
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Washington
Practices
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Only a handful of Washington cases address this issue. In only one of those cases, (State v. Burch) was the conviction reversed on Batson grounds. The Burch case noted that Washington State had not (and still has not) adopted any procedural requirements relating to Batson claims, although the U.S. Supreme Court stated in Ford v. Georgia that states may adopt these requirements. In Ford, the state court rule had provided that a Batson claim must be raised before the jurors are sworn in. The U.S. Supreme Court found the court rule to be “sensible.”
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Raising Issue for
First Time on Appeal
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In Burch, the defendant raised a Batson claim for the first time on appeal. The Burch court commented that the better practice is to raise a Batson objection in a timely manner at trial. Nevertheless, a defendant could still raise it for the first time on appeal by tying it to a claim of “ineffective assistance” of counsel.
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Procedures
for Judges
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If a trial court judge observes that a party is exercising a peremptory challenge under circumstances where a Batson claim could reasonably be made, and the opposing party is not objecting to the challenge, the judge should raise the issue with trial counsel on the record outside the presence of the jurors. This way, if the case is appealed with the Batson claim as one of the issues, the appellate court will be able to fully address the merits of the claim.
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Outside the Jury’s Presence
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Batson challenges should be handled outside the jury pool’s presence. In the event the trial judge rules that a juror was challenged in violation of Batson, the challenged juror could remain on the jury with a lessened risk of the verdict being affected by jury knowledge of Batson discrimination being at issue.
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References:
Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712 (1986).
Ford v. Georgia, 498 U.S. 411, 112 L.Ed.2d 935, 111 S.Ct. 850 (1991).
State v. Medrano, 80 Wn. App. 108, 906 P.2d 982 (1995).
State v. Wright, 78 Wn. App. 93, 896 P.2d 713 (1995).
State v. Sanchez, 72 Wn. App. 821, 867 P.2d 638 (1994).
State v. Ashcraft, 71 Wn. App. 444, 859 P.2d 60 (1993).
State v. Burch, 65 Wn. App. 828, 830 P.2d 357 (1992).
State v. Morales, 53 Wn. App. 681, 769 P.2d 878 (1989).
G. Thomas Munsterman, et al., Jury Trial Innovations, pp. 71-75 (3rd ed. 1997).
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