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Solving the Batson Paradox:
Harmless Error, Jury Representation, and the Sixth
Amendment
Eric L. Muller
In Batson v. Kentucky and its progeny, the Supreme Court clearly
explained how race- and gender-based peremptory challenges violate
the equal protection rights of litigants and prospective jurors.
Batson's defenders on the Court have insisted that race and gender
are irrelevant to a juror's likely viewpoint. By taking this
position, these Justices have foreclosed any chance that jury
discrimination might have an impact on the reliability of verdicts.
On the other hand, Batson's loudest critics have embraced the idea
that race and gender are factually relevant to a juror's likely
viewpoint. Yet these Justices have insisted that discriminatory
peremptory challenges have negligible impact on the reliability of
verdicts. Thus, the Justices who wish to find harm in a Batson
violation cannot articulate it; the Justices who could find harm in
a Batson violation profess not to see it. This is the paradox of
Batson.
In this Article, Professor Muller proposes a solution to this
paradox. He argues that race- and gender-based peremptory
challenges do indeed make criminal verdicts unreliable, but not
because they violate principles of equal protection. Rather, such
challenges offend the idea, central to the Sixth Amendment's jury
requirement, that a criminal jury must represent the community from
which it was drawn. Professor Muller argues for a richer definition
of verdict reliability than that which the current Court has
adopted, one that blends the Sixth Amendment's twin commands of
jury impartiality and community representation.
Return to Issue 106-1
Index of Back Issues
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