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Overweight Schoolteacher From New Jersey and Other Tales: The Peremptory Challenge After Batson

NCJ Number
115893
Journal
Criminal Law Bulletin Volume: 25 Issue: 1 Dated: (January-February 1989) Pages: 57-85
Author(s)
A W Alschuler
Date Published
1989
Length
29 pages
Annotation
In Swain vs. Alabama, the U.S. Supreme Court held that racially grounded peremptory challenges did not violate the equal protection clause so long as they were exercised 'for reasons ... related to the outcome of the particular case ....'
Abstract
In 1986, the Court overruled Swain, but sought to hedge the right to equal protection through cumbersome procedures and substantive restrictions. In so doing it created an enforcement nightmare and left unresolved seven issues that have given rise to subsequent litigation. These issues relate to prima facie proof of discriminatory purpose, racially neutral explanations for exclusion, remedies for improper exclusion, discrimination on a nonracial basis, discrimination against prospective jurors of a race other than the defendant's, and racial discrimination by defense attorneys. Bateson has reduced some forms of discrimination by prosecutors, but has incurred heavy administrative costs in the form of hundreds of appellate cases and even more trial court hearings. Prior to Bateson, the peremptory challenge permitted courts to presume that prosecutors were acting for legitimate reasons even when they probably were not. Bateson created a quasi-peremptory challenge that requires explanation, although not justification or cause. Under the equal protection clause, the peremptory challenge should be abolished altogether. A comment on this analysis is included. 76 footnotes.

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