Attorney Timothy F. McCurdy recently published the article below in the December 2020 issue of the Missouri Bar Journal.
Change Begins With Us – Eliminating Discrimination During Jury Selection
These three words ignited a worldwide debate about systemic racism.2 In the United States, we have been forced to take an uncomfortable look at the history of our justice system’s treatment of African Americans. Our country has struggled with these issues since its founding, and a journal article cannot do them justice. We can, though, recognize the important role lawyers play in protecting against discrimination in one critical area – the jury selection process.
Over time, the United States Supreme Court has recognized the need to protect against discrimination during jury selection. The Supreme Court’s solution relies on the most fundamental concept of our judiciary – the adversarial system. Through voir dire and the “Batson challenge,” lawyers are tasked with protecting against discrimination. Like any other aspect of our adversarial system, the protections against discrimination in jury selection are only as effective as the attorney’s ability to enforce them.
To fulfill this vital role, lawyers must understand the protections provided against discrimination, and how to enforce them. This article will focus on the development and current scope of the “Batson challenge.” We will then address how lawyers must protect against discrimination both while using their own peremptory strikes, and by using “Batson challenges” to prevent their opponents from discriminating during jury selection. We will focus on the use of Batson challenges in Missouri state court.3 The goal of this article is for attorneys to appreciate our role in stopping discrimination, and to provide the tools necessary to fulfill this role.