Batson v. Kentucky: The Three-Step Test for Peremptory Strikes

In Batson v. Kentucky, decided in 1986, the Supreme Court held that a prosecutor cannot use peremptory challenges to strike potential jurors because of their race, and it built a three-step procedure trial judges use to enforce that rule.¹ The Court grounded the decision in the Equal Protection Clause of the 14th Amendment, which forbids the state from denying any person equal protection of the laws.²

What the Ruling Limits

Attorneys have two main tools for removing potential jurors. A challenge for cause requires a specific reason the person cannot be impartial, such as a close relationship with the defendant. A peremptory challenge traditionally lets an attorney strike a juror without giving any reason at all.¹

Batson placed a constitutional limit on that second tool. A prosecutor’s peremptory strike may not be used to exclude a juror solely because of race. The selection of a jury by a state prosecutor counts as state action, so the Equal Protection Clause reaches it.¹

How the Three-Step Test Works

Step One: The Objecting Party’s Showing

The lawyer who suspects a race-based strike must object and make an initial showing that the circumstances raise an inference of purposeful discrimination. That showing can rest on a pattern of strikes against jurors of a particular group, but the judge looks at all relevant facts and circumstances. If the facts do not support a reasonable concern that race motivated the strike, the challenge ends there and the juror stays off the panel.¹

Step Two: A Race-Neutral Explanation

If the initial showing is enough, the burden shifts to the attorney who made the strike. That attorney has to give a reason for removing the juror that is not based on race.¹ The explanation only needs to be neutral on its face at this stage. It does not have to be persuasive, or even plausible.³ Reasons usually point to something specific about the individual, such as answers during questioning or a past job.

Step Three: The Judge Decides

Finally, the judge decides whether the stated reason was the real motive or a pretext for discrimination. The opponent of the strike carries the burden of proving purposeful racial discrimination. If the judge finds pretext, the court can seat the juror or restart selection with a new pool.³ Judges often compare the struck juror to other jurors who stayed on the panel despite similar traits.

How Far the Rule Reaches

Later Supreme Court decisions extended the Batson framework beyond the prosecution in a criminal trial:

Private parties in civil litigation cannot use race-based peremptory strikes.⁴
Criminal defendants are also barred from purposeful racial discrimination in their own strikes.⁵
Strikes based on gender are prohibited under the same equal protection principles.⁶

Together, these decisions built out from the original Batson holding to cover both sides of a criminal case, civil litigants, and strikes based on sex, while leaving the three-step objection procedure as the mechanism trial courts use to sort a legitimate strike from a discriminatory one.

1
Cornell Law School. Batson v. Kentucky, 476 U.S. 79 – Section: Syllabus
2
National Archives. 14th Amendment to the U.S. Constitution
3
Justia. Purkett v. Elem, 514 U.S. 765 – Section: Syllabus
4
Cornell Law School. Edmonson v. Leesville Concrete Co., 500 U.S. 614 – Section: Syllabus
5
Cornell Law School. Georgia v. McCollum, 505 U.S. 42 – Section: Syllabus
6
Cornell Law School. J.E.B. v. Alabama, 511 U.S. 127 – Section: Syllabus