Can Prosecutors Strike Jurors Because of Race? How Batson Challenges Work

Prosecutors may not strike jurors because of their race. Even so, defendants often have to challenge the government's reasons for removing jurors who share their background, and those challenges are hard to win. Because jury selection can shape the outcome of a trial as much as anything that follows, defense lawyers should take racial bias in jury selection very seriously.

In United States v. Altareb, the Second Circuit looked at a claim of racial bias in the government's use of a peremptory strike.

How Jurors Are Struck

Examining Racial Bias in Jury Selection

During jury selection, each side can remove jurors in two ways. A "peremptory strike" removes a juror without giving a reason, and each side gets a limited number. A strike "for cause" requires a reason, such as a juror's clear bias.

Neither side may use a peremptory strike to remove a juror because of race; the Supreme Court has held this violates equal protection. The Court has also barred strikes based on gender.

Challenging a Race-Based Strike

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court set out three steps:

1. The defendant must make a prima facie case, meaning enough facts to suggest the strike was based on race.
2. The prosecutor must give a race-neutral reason for the strike.
3. The judge decides whether the defendant has proven purposeful discrimination.

If a Batson challenge succeeds, the defendant may get a new trial. Critics say there are still few consequences for prosecutors, and that some courts accept weak "race-neutral" explanations. (Read more about Batson v. Kentucky.)

The Altareb Case

Altareb was convicted of running an unlicensed money transmitting business and smuggling bulk cash. He was sentenced to 51 months in prison and fined more than $750,000.

On appeal, he argued the government struck the only Arab American juror in the pool because of her heritage, which he shared. The government gave two reasons: her husband was a taxi driver like Altareb, which might make her sympathetic, and her work history was unclear. The government added that it also struck two other potential jurors for being unemployed.

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 were enough to overcome the prima facie showing.

What This Means for You

Altareb shows how hard it can be to win a Batson challenge, even when the courts are uneasy about a strike. Both courts criticized the government's strike, yet the result leaves other defendants open to the same problem. Your lawyer needs to watch the government's strikes closely, object right away, and make a clear record. It takes careful preparation to bring a successful Batson challenge in federal court, so involve your lawyer as early as possible.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.