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Despite the efforts of lawyers and judges to eliminate racial discrimination in the courts, does racial bias play a part in todays jury selection? Positive steps have been taken in past court cases to ensure fair and unbiased juries. Unfortunately, a popular strategy among lawyers is to incorporate racial bias without directing attention to their actions. They are taught to look for the unseen and to notice the unnoticed.
The Supreme Court in its precedent setting decision on the case of Batson v. Kentucky, 476 U. S. 79 (1986), is the first step to limiting racial discrimination in the court room. The process of selecting jurors begins with prospective jurors being brought into the courtroom, then separating them into smaller groups to be seated in the jury box. The judge and or attorneys ask questions with intent to determine if any juror is biased or cannot deal with the issues fairly. The question process is referred to as voir dire, a French word meaning, to see to speak.
During voir dire, attorneys have the right to excuse a juror in peremptory challenges. Peremptory challenges are based on the potential juror admitting bias, acquaintanceship with one of the parties, personal knowledge of the facts, or the attorney believing he / she might not be impartial. In the case of Batson v. Kentucky, James Batson, a black man, was indicted for second-degree burglary and receipt of stolen goods.
During the selection of the jury the prosecutor used his peremptory challenges to strike out all of the four black potential jurors, leaving an all white jury. Batson's attorney moved to discharge the venire, the list from which jurors may be selected, on the grounds that the prosecutors peremptory challenges violated his clients Sixth and Fourteenth Amendment rights to have a jury derived from a cross-section of the community (People v. Wheeler, 583 P. 3 d 748 [Calif. 1978 ]). The circuit court ruled in favor of the prosecutor and convicted Batson on both counts. This case went through the courts and finalized in the U.
S. Supreme Court. In a 7 - 2 decision, the Supreme Court ruled in favor of Batson. The Court held that the Fourteenth Amendment forbids the prosecutor from challenging potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to consider the states case against a black defendant impartially (74 A. B.
A. J. 54, April, 1988). Quoting an 1880 ruling that barred the exclusion of blacks from the jury venire itself; Justice Powells opinion for the Court stressed the importance of excluding racial prejudice from the jury process. The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Discrimination within the judicial system is most pernicious because it is a stimulant to the race prejudice which is an impediment to securing to [black citizens] that equal justice, which the law aims to secure to all others. (72 A.
B. A. J. 68, July, 1986) With the Courts ruling new standards were set that required the defendant to show: -- That they are members of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendants race -- The defendants may rely on the fact that peremptory challenges are a jury selection practice which allow those who are minded to discriminate to do so -- That these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. (Batson v. Kentucky 476 U.
S. 79 [ 1986 ]) The Batson case had been given retroactive effect, under the new standards, to all cases that were pending on direct review or not yet final. This decision brought, to the courts, a wave of cases that desired revision. Each case helped form the implications that would be used to approve or disprove Batson in future cases. Peremptory challenges racially motivated cannot be raised for the first time on appeal (Hamilton v. Georgia 351 S. E. 2 d 705 [Ga.
App. 1986 ]). Objections to the prosecutions peremptory challenges must be raised at trial (Bowden v. Kemp 793 F. 2 d 273 [Fth Cir. 1986 ], United States v. Erwin 793 F. 2 d 656 [ 11 th Cir. 1986 ]).
Objections must be raised before the jury is sworn in (People v. Ortega 156 Cal. App. 3 d. 63 [ 1984 ]). Also, if one black juror is removed even though other black jurors were accepted, as long as it was racially motivated Batson is applicable (United States v. David 803 F. 2 d 1567 [ 11 th Cir. 1986 ]). Some court decisions resulted in prima facie cases.
Latin for at first look, or on its face, prima facie refers to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial (web). New Jersey v. Gilmore, 511 A. 2 d 1150 (N. J. 1986) ruled that a prosecutors inconsistent explanations, although he said he dismissed two black women because he did not want jurors with maternal instincts, he accepted white mothers, is cause for a prima facie. Reasoning based on intuitions or gut feelings in excluding jurors may constitute impermissible group biases (Commonwealth v.
McCormick 519 A. 2 d 442 (Pa. 1986). There were also cases that tried for a prima facie but did not succeed. All blacks were dismissed from the jury, but no racial issue was raised because the killing involved a black defendant and a black victim and a black witness (Commonwealth v. McKendrick 514 A. 2 d 144 (Pa. 1986). When there is sufficient bases for striking black jurors, for example, one was acquainted with a witness, a second had a brother and sister convicted the county, and a third indicated he was familiar with an officer involved in the case, no prima facie can be established (Phillips v. State 496 N.
E. 2 d 87 [Ind. 1986 ]). In 1991 the Supreme Court expanded on their decision and extended the Batson ruling to civil cases also. Not all of the Justices were in favor of the ruling. Divided 6 to 3, the three dissenting justices said racial discrimination by private lawyers exercising their peremptory challenges is abhorrent but is not prohibited by the Constitution (The Wash. Post June, 1991). Fortunately that was the minority vote.
Cases involving employment, licensing, and negligence deserve racial bias protection just as much as criminal cases. The three dissenting judges claim that the Constitution does not account for private discrimination, only state action is prohibited. Justice OConnors said, A trial, particularly a civil trial, is by design largely a stage on which private parties may act... The government erects the platform; it does not thereby become responsible for all that occurs on it. (The Wash. Post, June, 1991). Understandably people reserve the right to pursue and defend private legal matters but, the decisions are based on our law and our law is based on protecting us as citizens.
We do not have a laissez-faire government and until we do society depends on the courts to see people are treated fairly. As Justice Kennedy states Few places are a more real expression of the constitutional authority of the government that a courtroom, where the law itself unfolds (The Wash. Post, June, 1991). Now that the Batson case has been applied to Criminal and Civil cases where else could racial bias erupt? In 1989 the California Supreme Court ruled 5 to 2 that the jury panel should be based racially on the population of the judicial district where the case is tried, a ruling that rejected a black defendant, accused of murdering a white victim, claiming he was entitled to a jury representative of the county as a whole.
The court held that a defendant has no constitutional right to a trial in the district where the crime is committed, but may be tried anywhere in the 4, 000 -square-mile county if a court so orders. The attorneys argued that blacks comprised 1. 5 % of the North County population, from which juries were established to hear cases, will...
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