by Brandon Abbatiello, J.D. Class of 2017 Touro Law Review Senior Staff Member
The Sixth Amendment guarantees criminal defendants the right to have their case decided by an impartial jury. During jury selection, attorneys for each side are granted a varying number of peremptory challenges. Peremptory challenges, as opposed to challenges for cause, allow attorneys to strike potential jurors without providing a reason to the court. This common-law practice dates back to thirteenth century England. As a result of this long tradition, peremptory challenges are currently alive and well in all fifty states as well as at the federal level despite their potential to be used as a vehicle for the practice of discrimination unto protected classes. The problem with peremptory challenges is the danger of pretext, which is the danger that attorneys will use their challenges in ways that violate the Fourteenth Amendment’s equal protection clause because they don’t have to give a reason for why they struck a particular juror.
In Batson v. Kentucky, the Supreme Court held that the equal protection clause of the Fourteenth Amendment is violated when attorneys use their peremptory challenges to remove jurors on the basis of race. In Batson, the prosecutor used his peremptory challenges to strike all four black prospective jurors. The Court held that a defendant may make a prima facie case of discrimination by establishing that (1) he/she is a member of a racial group, (2) the prosecutor has used peremptory challenges to exclude jurors of the same race, (3) and a reasonable inference is made showing that the peremptory challenges were used in order to exclude jurors on account of their race. The burden then shifts to the state to provide a race-neutral reason for each of its peremptory challenges.
On its face, Batson appeared to be a monumental civil rights decision and a powerful vehicle to eradicate racism from the jury selection process. However, on a practical level, it was all too easy to provide race-neutral explanations for each peremptory challenge. Attorneys could get around Batson so long as they did not explicitly identify race as the determining factor of their challenge. In recognition of this troublesome phenomenon, the Supreme Court heard a recent case, Foster v. Chatman, which asked whether the prosecutor’s race-neutral reasons for peremptory challenges were pre-textual and therefore a violation of the Fourteenth Amendment. 
The facts in Foster are similar to those in Batson. A prosecutor struck all four black jurors using peremptory challenges. Both parties agreed that the first two prongs under Batson were satisfied. As for the third prong, the prosecution did provide race-neutral reasons for the strikes. For example, the prosecutor claimed to strike one of the black prospective jurors, Garret, because he was divorced. However, he declined to strike three of four other prospective white jurors who were also divorced. Similarly, another black prospective juror, Hood, was struck because his son’s age was similar to the defendant’s age. Yet the prosecutor accepted another white juror who also had a son whose age was close to that of the defendant. Furthermore, when the prosecutor asked Hood if the defendant’s age would be a factor for him in sentencing, he responded “None whatsoever.” The Court concluded that the prosecutor’s “race-neutral” explanations were, in fact, pre-textual and therefore the prosecutor engaged in purposeful discrimination on the basis of race.
Foster, is a landmark decision because it gives teeth to the third prong of the Batson test by demanding that judges evaluate race-neutral explanations proffered in defense of a particular peremptory challenge in light of the record as a whole rather than simply taking the explanation at face value. Justice Thomas offered a strong dissent, arguing that since Foster’s Batson claim is ultimately a credibility determination, the Court should have given great deference to the trial court’s findings. But deference to the lower court, which did not scrutinize the race-neutral explanations, would essentially leave Batson the way it has been since the decision came down: a well-intentioned application of the equal protection doctrine to the jury selection process with too low a standard to effectively safeguard defendants from an impartial jury. I agree with the majority that closer judicial scrutiny of the peremptory challenge process is warranted given the legitimate and unfortunately all too prevalent risk of a Sixth or Fourteenth Amendment violation unto criminal defendants.
 U.S. Const. amend. VI § 3.
 John Proffatt, A Treatise on Trial By Jury, Including Questions of Law and Fact § 1-10 (Rothman 1986).
 Jere W. Morehad, When a Peremptory Challenge is No Longer Peremptory: Batson’s Unfortunate Failure to Eradicate Invidious Discrimination From Jury Selection, 42 DePaul L. Rev. 625, 628 (1994)
 Batson v. Kentucky, 476 U.S. 79 (1986).
 Id. at 86.
 Id. at 83.
 Id. at 94-97.
 Id. at 97.
 Foster v. Chatman, 136 S. Ct. 1737 (2016).
 Id. at 1747
 Id. at 1750
 Chatman, 136 S. Ct. at 1751.
 Id. at 1752.
 Id. at 1755 (“Two peremptory strikes on the basis of race are two more than the Constitution allows.”).
 Batson, 136 S. Ct. at 1765 (Thomas, J., dissenting).