Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment

Abstract

In Batson v. Kentucky and its progeny, the Supreme Court has done poorly at explaining how discriminatory peremptory challenges harm what has become the central value in the criminal justice system--the reliability of criminal verdicts as factually accurate pronouncements of guilt or innocence. Batson's defenders on the Court have insisted that race and gender are factually irrelevant to a juror's likely viewpoint, and have thereby foreclosed any chance that jury discrimination might have any impact at all on the reliability of verdicts. Batson's loudest critics have insisted that race and gender are factually relevant to a juror's likely viewpoint. Yet these Justices have nonetheless insisted that discriminatory peremptory challenges have negligible impact on the reliability of verdicts. 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. Such challenges offend the idea, central to the Sixth Amendment's jury requirement, that a criminal jury must represent distinctive groups in the community. Professor Muller argues for a richer definition of verdict reliability than the current Court has adopted, one that attempts to blend the Sixth Amendment's twin commands of jury impartiality and community representation.