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The People’s Peremptory Challenge and Batson: Aiding the People’s Voice and Vision Through the “Representative” Jury

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Batson v. Kentucky famously held that the Equal Protection Clause prohibits prosecutors from purposely using peremptory challenges to excuse jurors because of their race. This Essay argues that understanding Batson’s original social function first requires understanding the jury’s political functions.

Courts and commentators often speak of the jury’s role as representing the “People” or the “community” in the courtroom. But what does that mean? Jurors are not elected like members of Congress, and juries are too small to provide an adequate sample of the public’s views. This Essay argues that a kernel of an answer to the question of what it means for a jury or a prosecutor to “represent” the People lies in Batson and its precedential children. That answer in turn has implications for justifying Batson, modifying it, and bringing its spirit into ethical training in prosecutors’ offices.

My argument here is two-fold. First, the jury “represents” the People by acting for the good of the People as a whole in performing tasks that all the members of the People could not themselves collectively perform. It is not the content of any particular jury verdict—guilty or not guilty—that matters but the very process of jury observation and deliberation that itself brings about political benefits on behalf of all the People. The jury does not, therefore, simply mirror preexisting views of the People on a particular case—there are no such views—but rather engages in a process of verdict creation that benefits the People as a whole. Second, and simultaneously, I rely on the metaphor of the People as a “body,” a metaphor enthusiastically embraced by the Founders’ generation. If the People are a body, the criminal jury acts as the People’s eyes and voice in the courtroom.



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