How Batson Challenges Work in Federal Court

Prosecutors may not strike jurors because of their race. The Equal Protection Clause bars that, and the Supreme Court has said so for decades. Even so, race-based strikes still happen, and a challenge is hard to win unless the defense makes a clear record while the jury is being picked.

How jurors are removed

During jury selection (voir dire), each side can remove people from the jury pool in two ways:

• A strike for cause needs a reason, such as a clear bias or inability to serve.
• A peremptory strike removes a juror without stating a reason. Each side gets a limited number.

A peremptory strike still may not be based on race. The same rule bars strikes based on gender. See Batson v. Kentucky, 476 U.S. 79 (1986), and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

The three-step Batson test

Batson sets a three-step process when the defense claims a strike was based on race:

1. The defense must make a prima facie showing — enough facts to raise an inference that the strike was race-based (for example, the pattern of strikes and the racial makeup of the remaining panel).
2. The prosecutor must then give a race-neutral reason for the strike. The reason need not be persuasive at this step; it must not be race itself.
3. The judge decides whether the defense has proven purposeful discrimination. At this step the judge weighs the whole record: the reason given, how other jurors were treated, and whether the reason looks like a pretext.

If the challenge succeeds, the usual remedy is a new trial. Timing matters. The objection generally must be raised while the jury is still being selected, so the judge can fix the problem before the trial starts.

What later cases added

Two later Supreme Court cases show how courts look for pretext:

• In Foster v. Chatman, 578 U.S. 488 (2016), the Court found purposeful discrimination where prosecutors' notes and shifting explanations undercut the race-neutral reasons they gave at trial.
• In Flowers v. Mississippi, 588 U.S. 284 (2019), the Court looked at the history across multiple trials — how many Black prospective jurors were struck, how the questioning differed, and whether similarly situated white jurors were kept — and held that the record as a whole showed discriminatory intent.

Neither case changed the three Batson steps. Both show that the third step is a hard look at the real reason for the strike, not a rubber stamp.

The Altareb case

In United States v. Altareb, the Second Circuit reviewed a claim that the government struck the only Arab American juror in the pool because of her heritage, which the defendant shared. The government gave two race-neutral reasons: her husband was a taxi driver like the defendant, and her work history was unclear. It also said it struck other unemployed jurors.

The district court said it was troubled that the government struck the only juror of Arab heritage. The Second Circuit shared that concern, but both courts upheld the conviction, finding the government's reasons enough to defeat the challenge. Altareb is a reminder that unease about a strike is not the same as a win. The defense still has to prove purposeful discrimination under step three.

What to do if this comes up in your case

• Watch every peremptory strike and object right away if race or gender appears to be the reason.
• Ask the court to require a race-neutral explanation on the record.
• Compare how the prosecutor treated similar jurors of other races — that comparison is often the heart of the pretext inquiry after Foster and Flowers.
• Make sure the transcript captures the panel's makeup, the strikes, and the reasons given.

Jury selection can shape the rest of the trial. If you think a strike in your federal case was based on race or gender, Request a consultation and tell us what happened.