Defendant's Discriminatory Use of the Peremptory Challenge After Batson v. Kentucky (From Criminal Law Review - 1989, P 349-369, 1989, James G. Carr, ed. -- See NCJ-121027)

• NCJ Number: 121035
• Author(s): J J Hoeffner
• Date Published: 1989
• Length: 21 pages
• Sale Source: Clark Boardman Company, Ltd
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: Reprinted from St. John's Law Review, V 62 (1987), P 46-66

Annotation

Observing that there is no constitutional right to the use of the peremptory challenge in jury selection, this article examines the analysis used in Batson v. Kentucky to find that a prosecutor violated the Equal Protection Clause of the fourteenth amendment in a discriminatory use of the peremptory challenge and discusses the applicability of that argument to the discriminatory use of the peremptive challenge by the defendant.

Abstract

The requirement of the fourteenth amendment that the denial of equal protection be a product of State action appears to limit the applicability of the Batson rationale to defendants, and the sixth amendment requirement that the accused has a right to trial by an impartial jury cannot be employed to attack the defendant's discriminatory use of the peremptive challenge. A public policy argument can be made in support of limiting the State's and the defendant's use of discriminatory peremptive challenges, for they reflect divisive stereotyping and destroy the social cohesiveness of the jury. Therefore, the article argues that the problem of discriminatory peremptive challenges should be remedied by legislation. 80 footnotes.