Good Intentions Leading to Unintended Consequences I – Essay for a paralegal course on Batson v. Kentucky

I can’t remember if I have posted this on this blog before, but in addition to be an electrical engineer who specializes in regulatory engineering, I am also taking on-line classes for an Associate’s degree in Paralegal Studies.

This is a recent essay I posted for an assignment to write a paper “regarding the Batson case”. Yes, I know I have some misspelled words & some grammar error in here, but I figured I would post this as is.

On a side note, if anyone reading this post is interested in finding out more about Batson v. Kentucky, a very good place to start reading would be the opinion written for the decision of the Supreme Court of the United States,, which is reference #7 in the list of sources below.

After reading a number of articles on the internet regarding the Batson decision, I have come to the conclusion that the Supreme Court decision in Batson v. Kentucky is another example of the power of unintended consequences. Good intentions on the part of one group of people, by themselves, do not automatically validate any particular line of reasoning nor do they guarantee that subsequent actions by third parties will match the original intent of the original group.

The Batson v. Kentucky criminal case itself was relatively simple. Mr. Batson was a black man, tried in a Kentucky criminal court of burglary and receipt of stolen goods. During the voir dire examination of the jury venire, the prosecution used peremptory challenges to strike six people from the venire – including four black persons, who were the only black persons in the venire. The defense counsel moved at that time to discharge the jury on the grounds that prosecution’s removal of all black veniremen meant that Batson did not have a jury drawn from a cross section of the community and did not have equal protection under the laws because of his race, thereby being deprived of his rights under the Sixth & Fourteenth Amendments to the Constitution of the United States, respectively. The trial judge denied the motion but did not expressly issue a ruling on the petitioner’s request for a hearing. Batson was duly convicted of the charges by an all-white jury.

Batson appealed to the Kentucky Supreme Court, based on the grounds that his rights under the Sixth & Fourteenth Amendments had been violated by the exclusion of all black members of the venire from the final jury. The Kentucky Supreme Court denied the appeal and affirmed the conviction, on the grounds that its standard was Swain v. Alabama, which required the demonstration of systemic exclusion of a group of jurors from the venire, and Batson had not sufficiently demonstrated a systemic exclusion.

Batson appealed to the Supreme Court of the U.S., which reversed and remanded the original conviction. In its decision, delivered by Justice Powell, the Supreme Court stated that the evidentiary burden placed on the defendant by Swain v. Alabama was excessive. Rather, “a defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. . . . Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” [7]

It is the context and consequences of the Supreme Court’s decision that are complicated.

There was a long history behind the Batson v. Kentucky decision. Going back to 1879 and the Strauder v. West Virginia decision, the Supreme Court had been making efforts to safeguard jury impartiality and to try to ensure juries were representative of the populace where the trial was taking place. In Strauder v. West Virginia, the Supreme Court of the United States stated that while “a defendant has no right to a petit jury comprised in whole or in part of persons of his own race” [7], a defendant’s equal protection rights, per the 14th Amendment, are violated when the State by law prohibits members of his own race from serving on juries.

Again in 1965, the Supreme Court emphasized the undesirability of using race to determine jury composition with the Swain v. Alabama decision. In Swain v. Alabama, the Supreme Court of the United States ruled that in order to show denial of rights under the equal protection clause, the defendant must demonstrate systemic abuse of peremptory challenges in the county where the trial took place. What is most notable to me is the lengths to which the Supreme Court in 1965 went to emphasize that human imperfection and fallability does not immediately imply conspiracy and malice. “An imperfect system of selection of jury panels is not equivalent to purposeful racial discrimination.” [9]

Whether intended or not (I didn’t read enough about Swain v. Alabama to have any opinion on what the 1965 Supreme Court justices intended), Swain v. Alabama effectively set the burden of proof for the defendant so high that few appeals were based on it.

Thus, when the Batson v. Kentucky case was presented to the court in December of 1985, the court again took the opportunity to encourage members of the legal system to remember the Fourteenth Amendment during jury selection. Batson v. Kentucky set the evidentiary bar quite a bit lower than Swain v. Alabama. In Batson v. Kentucky, “A defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. The prosecutor may not rebut a prima facie showing by stating that he challenged the jurors on the assumption that they would be partial to the defendant because of their shared race or by affirming his good faith in individual selections.” [7]

An important side issue in the context of Batson v. Kentucky is use of the peremptory challenge, and questions about whether the peremptory challenge should even be valid in today’s courts.

In addition to the equal protection issue, Swain v. Alabama also expressly recognized that the peremptory challenge is intended to allow either side to strike members from the venire without cause, including minority members. Swain v. Alabama specifically stated “The prosecutor’s striking of Negroes from the jury panel in one particular case under the peremptory challenge system, which permits a challenge without a reason stated, does not constitute denial of equal protection of the laws.” [9]

There is discussion about the use of the peremptory challenge for racially biased reasons in the Batson v. Kentucky decision, both in the majority opinion and in the dissenting opinion. Justice Powell’s majority opinion notes that peremptory challenges are a feature of common law, but are not guaranteed anywhere in the Constitution, and have been abused in the past. Justice White’s concurring opinion states that peremptory challenges are not, on their face, discruminatory, but their openness to abuse is an issue of concern. (Justice White also notes “Much litigation will be required to spell out the contours of the Court’s equal protection holding today, and the significant effect it will have on the conduct of criminal trials cannot be gainsaid.”) Justice Marshall’s concurring opinion calls for the elimination of the peremptory challenge entirely. Chief Justice Burger & Justice Rehnquist expresses alarm at the damage done to the peremptory challenge by the majority’s opinion, based on the fact that peremptory challenges had been part of common law for centuries and given that common law had stood the test of time so well, why did the majority feel it necessary to modify it so drastically?

Essentially, the peremptory challenge issue in Batson v. Kentucky seems to come down to the argument about whether a thing should be limited or restricted based on its potential for misuse and the reality of its misuse in some hands, and should the misused thing’s true purpose and usefulness be a factor in the discussion of whether it should be limited? I personally agree with the dissenting justices that fundamentally changing the usability of peremptory challenges because they had sometimes been misused does not make sense.

(I also think the dissenting justices had some other valid points that raise some concerns. Firstly, why was the court going against stare decisis and reversing the Swain v. Alabama decision, which at the time was only 20 years old? Secondly, if the dissenting opinion is correct in stating that Batson v. Kentucky was appealed to the Supreme Court of the U.S. on Sixth Amendment grounds, then why did the majority court decide to bring in Fourteenth Amendment equal protection issues?)

Although the verbiage of Batson v. Kentucky only applied to the prosecution striking veniremen of a certain race from the jury in a criminal trial with a defendant of the same race, Batson v. Kentucky has been expanded to cover civil trials, striking of veniremen by defense attorneys, striking of veniremen who are of a different race than the defendant, and striking of veniremen based on gender.

As noted in a number of articles [1][4][6], Batson has become so frequently used as a basis for appeals that it has encouraged the very thing it tried to reject. Now, lawyers for both sides must thoroughly check into the ethnic and national origins of all veniremen before issuing a peremptory challenge, otherwise the attorney risks an appeal of their case based on prima facie evidence of discrimination. Where the good intentions of the Supreme Court were to eliminate race as any basis for jury selection, the effects of their decision has been that race of potential jurors has become a crucial issue for both sides.

[1] “Batson v. Kentucky”, common sense Americanism,, site visited on December 21, 2005

[2] “Batson v. Kentucky”, web site for University of Missouri – Kansas City Law School,, visited December 21, 2005

[3] “Batson v. Kentucky”, Wikipedia,, visited December 21, 2005

[4] Jackson, Stacey S., “The Use of Peremptory Challenges for Discrimination in The Administration Of Justice: Annotated Bibliography”, website for University of Dayton School of Law, Fall, 1998,, visited on December 21, 2005

[5] “Landmark Decisions: Batson v. Kentucky (1986)”,,, visited December 21, 2005

[6] “Picking an Appeal Proof Jury (or The Dangers of Batson v. Kentucky)”, Firm Library, website for Warshauer Thornton & Easom P.C., Trial Lawyers,, visited on December 21, 2005

[7] “U.S. Supreme Court: Batson v. Kentucky, 476 U.S. 79 (1986)”, FindLaw for Legal Professionals,, visited on December 21, 2005

[8] “U.S. Supreme Court: Strauder v. West Virginia, 100 U.S. 303 (1879)”, FindLaw for Legal Professionals,, visited on December 21, 2005

[9] “U.S. Supreme Court: Swain v. Alabama, 380 U.S. 202 (1965)”,, visited on December 21, 2005

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