In light of a couple of recent Kentucky decisions on the issue, David Kramer has prepared prepared a supplemental comment as follows under CR 47.03 for the 2009 pocket part (due out in May) of the West Civil Practice Series Vol. 7 about use of a peremptory challenge to strike a member of a racial minority from the jury panel.
CR 47
CR 47.03, p. 195 (main volume), Author’s Comment 4, “Peremptory Challenges Made on Racial Basis,” add commentary:
The determination whether the use of a peremptory challenge against a member of a racial minority in a civil or criminal case violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution involves a three-step process.(1) First, the party opposing the strike must make a prima facie showing that the opposing attorney has exercised a peremptory challenge based on race. Second, if such a prima facie showing has been made, the burden shifts to the party making the strike to articulate a racially neutral explanation for striking the juror in question. The trial court must determine whether the party who struck the juror in question had a good-faith belief in the information it relied on as the basis for the peremptory challenge, and whether the party has articulated the reason in a race-neutral manner.(2) Self-serving explanations based on intuition or mere disclaimers of discriminatory motive are insufficient for this purpose.(3) Third, the trial court must determine whether the party opposing the strike has carried the burden of proving purposeful discrimination by evaluating the evidence of racial motivation in light of the proffered race-neutral explanation.(4) An evaluation of counsel’s state of mind and credibility in articulating the reason(s) for the peremptory challenge lies “peculiarly within a trial judge's province.”(5) The trial court’s ruling on a Batson objection on racial grounds to a peremptory challenge will not be disturbed unless clearly erroneous.(6)
CR 47.03, p. 195 (main volume), Author’s Comment 4, “Peremptory Challenges Made on Racial Basis,” add commentary:
The determination whether the use of a peremptory challenge against a member of a racial minority in a civil or criminal case violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution involves a three-step process.(1) First, the party opposing the strike must make a prima facie showing that the opposing attorney has exercised a peremptory challenge based on race. Second, if such a prima facie showing has been made, the burden shifts to the party making the strike to articulate a racially neutral explanation for striking the juror in question. The trial court must determine whether the party who struck the juror in question had a good-faith belief in the information it relied on as the basis for the peremptory challenge, and whether the party has articulated the reason in a race-neutral manner.(2) Self-serving explanations based on intuition or mere disclaimers of discriminatory motive are insufficient for this purpose.(3) Third, the trial court must determine whether the party opposing the strike has carried the burden of proving purposeful discrimination by evaluating the evidence of racial motivation in light of the proffered race-neutral explanation.(4) An evaluation of counsel’s state of mind and credibility in articulating the reason(s) for the peremptory challenge lies “peculiarly within a trial judge's province.”(5) The trial court’s ruling on a Batson objection on racial grounds to a peremptory challenge will not be disturbed unless clearly erroneous.(6)
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1. Batson v. Kentucky, 476 U.S. 79 (1986); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991); Fugett v. Comm., 250 S.W.3d 604 (Ky. 2008).
2. Chatman v. Comm., 241 S.W.3d 799 (Ky. 2007); Commonwealth v. Snodgrass, 831 S.W.2d 176 (Ky. 1992).
3. ugett v. Comm., 250 S.W.3d 604 (Ky. 2008).
4. Batson v. Kentucky, 476 U.S. at 98. See also McPherson v. Commonwealth, 171 S.W.3d 1 (Ky. 2005).
5. Commonwealth v. Snodgrass, 831 S.W.2d 176 (Ky. 1992), quoting Hernandez v. New York, 500 U.S. 352 (1991).
6. Washington v. Commonwealth, 34 S.W.3d 376, 380 (Ky. 2000).
1. Batson v. Kentucky, 476 U.S. 79 (1986); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991); Fugett v. Comm., 250 S.W.3d 604 (Ky. 2008).
2. Chatman v. Comm., 241 S.W.3d 799 (Ky. 2007); Commonwealth v. Snodgrass, 831 S.W.2d 176 (Ky. 1992).
3. ugett v. Comm., 250 S.W.3d 604 (Ky. 2008).
4. Batson v. Kentucky, 476 U.S. at 98. See also McPherson v. Commonwealth, 171 S.W.3d 1 (Ky. 2005).
5. Commonwealth v. Snodgrass, 831 S.W.2d 176 (Ky. 1992), quoting Hernandez v. New York, 500 U.S. 352 (1991).
6. Washington v. Commonwealth, 34 S.W.3d 376, 380 (Ky. 2000).
"Reprinted from the
forthcoming supplement to Rules of Civil Procedure Annotated, 6th
ed (Vols. 6 & 7, Kentucky Practice Series), by the late Kurt A.
Philips, David V. Kramer and Todd V. McMurtry, with permission. Copyright
(c) 2009 Thomson Reuters. For more information about this publication
please visit http://west.thomson.com/productdetail/130503/11774808/productdetail.aspx."
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