Criminal Friday is changing to Criminal Sunday because my current job does not allow me much time to post during the week. Criminal Sunday/Friday is one of my favorite features of this blog because it allows me to do some small legal analysis, while at the same time mocking people and drawing life lessons from that mocking.
Today's case is Missouri v. Livingston, No. WD 64677 (Mo. Ct. App. Jan. 30, 2007). I don't do a lot of state appellate decisions on Criminal Friday, but it is time to spread my wings a bit.
So, if you don't know, the way the jury selection process works is that each side, both prosecution and defense, get so many "peremptory" challenges. A peremptory challenge allows each side to dismiss, for almost any reason, a certain number of potential jurors. The other way to get rid of a potential juror is "for cause," but as you can imagine this is much harder. Jury selection is often a game where you attempt to get as many of your opponents jurors struck "for cause," letting you save your limited peremptory challenges for those times when you've got no other options.
Well, the one thing you can't do with a peremptory challenge in a criminal trial is use it to discriminate simply based on the juror's race. This was the result of the Supreme Court's holding in Batson v. Kentucky, 479 U.S. 79 (1986). On appeal, defendants often assert a Batson challenge, claiming the prosecution kept certain people off the jury based only on their race.
Generally Batson challenges don't succeed because the prosecution can usually come up with some legitimate non-discriminatory reason for striking the juror, defeating the defendant's prima facie case. But in Livingston, the Missouri Court of Appeal recently upheld a Batson challenge because the prosecution struck an African-American juror but did not move to strike similar white jurors. As the Court of Appeals wrote:
Since Batson was handed down it has been in tension with the historical conviction of the trial lawyer that he or she should be able to make preemptory challenges for no reason or even bad reasons. But there should be no tension. Every citizen has a right as well as obligation to participate in our democratic process. Jury service is perhaps the most important means after voting and free speech. Consequently, as a matter of constitutional right and fundamental equality, an African-American has a right to serve on a jury that can only be impaired for cause or legitimate and rational reason through a preemptory strike. By comparison no litigant has a right to have any particular person on a jury or to exclude someone for a jury for an impermissible and discriminating reason. This is not a situation of competing valid interests. The right of a party to peremptorily strike a juror must always give way to a right of citizen to participate in our judicial system without regard to race, gender or national origin. To do otherwise undermines the respect for the rule of law upon which a peaceful democracy is based.
As you can see,
Batson challenges are a little odd: Although it is the defendant that asserts the challenge, it is really about protecting a citizen's right to serve on a jury. A defendant, or any party for that matter, doesn't have a right to have a particular person, or no particular person, on the jury. Instead, we, as citizens, have the right to not be discriminated against at voir dire.
No real mocking here, but still a lesson to be learned: If you are a prosecutor, there is obviously the tendency to want to eliminate certain potential jurors because you think they may identify with certain characteristics of the defendant, especially race. I'm not particularly sure how much of that is reality. But, the point is, you need a legitimate, non-discriminatory reason for defeating a prima facie Batson challenge.
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