But each side is also allowed to strike a certain number of jurors without giving a reason — these are called “peremptory challenges.” This is where racial discrimination in jury selection becomes tricky.
Lawyers aren’t technically allowed to use these strikes to dismiss jurors based on race or sex, thanks to legal precedent set by Batson v. Kentucky. In that case, a prosecutor used his peremptory challenges to dismiss all four potential black jurors. The defendants appealed to the Supreme Court and won.
Today, if one side suspects jurors are being dismissed based on race, they can issue what’s called a “Batson challenge.” The judge must decide if a strike is discriminatory and can give the accused an opportunity to come up with a race-neutral reason for the dismissal of a juror.
But the problem is, lawyers have easily worked around this challenge, coming up with race-neutral reasons that still work to dismiss jurors based on race. It’s a strategy so well-known that even this attorney training video lays out how to dismiss black jurors and get away with it. Over the years, studies have shown a striking pattern of excluding black jurors across the country, and Batson has been widely regarded as a failure at keeping discrimination out of jury selection.
Watch the video to learn more about how race factors into jury selection, and why it complicates the prospect of a fair trial by jury.