The proper remedy for a lack of Batson findings: the fall-out from Snyder v. Louisiana.

INTRODUCTION

Batson v. Kentucky (1) is familiar to most law students and to many fans of Law & Order. The Supreme Court held in Batson that the Equal Protection Clause forbids prosecutors from using peremptory challenges to exclude potential jurors from a jury on the basis of race. Racial discrimination in jury selection harms the defendant, violates the rights of the excluded juror, and harms the public by undermining confidence in the criminal justice system. (2) If a criminal defendant (or the defendant's attorney) believes that a prosecutor has attempted to use a peremptory challenge to remove a prospective juror on the basis of race, the defendant may make a "Batson challenge." The Supreme Court's opinion in Batson sets forth a procedure that the trial court must follow in resolving such challenges: if the defendant makes a prima facie showing that the prosecutor's peremptory challenge was motivated by race, then the prosecutor must offer a race-neutral explanation for striking the juror and the trial court must then decide whether the defendant has shown purposeful discrimination. (3)

The Batson procedure is an attempt to reconcile the tension between the constitutional guarantee of the Equal Protection Clause and the centuries-old practice of permitting prosecutors and defense attorneys to exercise peremptory challenges during jury selection. More than twenty years of experience with that procedure has demonstrated the importance of the trial court's observations during jury selection and contemporaneous findings of fact regarding the credibility of the race-neutral explanation that a prosecutor offers when challenged on the use of a peremptory challenge. Although the trial court's resolution of a Batson challenge is subject to appellate review, appellate courts rely heavily upon the trial court's findings and observations. Whether a Batson challenge should be sustained ultimately turns on whether the prosecutor is credible when he or she asserts a race-neutral explanation for the peremptory challenge. In some instances, the race-neutral explanation can be confirmed or rejected on the basis of the record--for example, when a transcript confirms that a juror said something inconsistent with the juror's duty to weigh the evidence impartially, or where a questionnaire confirms that a juror's background may inject bias. But a prosecutor's race-neutral explanation often turns on a juror's demeanor observed during jury selection, which is not something that an appellate court can discern from a cold record. Moreover, peremptory strikes are often the product of instincts of which the prosecutor is not fully aware. Accordingly, courts hold that demeanor-based explanations, in particular, should be scrutinized carefully, as they are often a convenient way to hide racial prejudice. Where a prosecutor gives a demeanor-based, race-neutral explanation for a peremptory challenge and the trial court allows the challenge without observing the demeanor of the challenged juror and without commenting on how it determined that the prosecutor was credible, appellate review of the trial court's ruling is practically impossible.

In recent years, state and federal appellate courts have struggled with the question of what should happen when (1) the trial court denies a defendant's Batson challenge without making the necessary factual findings to permit appellate review and (2) the prosecutor's race-neutral explanation for the challenged strike cannot be confirmed or rejected on the basis of the record. (4) The question arises frequently in criminal cases, and one of the Supreme Court's most recent decisions addressing Batson challenges--Snyder v. Louisiana (5)--has added to the confusion. In Snyder, the Supreme Court granted review some twelve years after jury selection and ordered a new trial where the trial court had failed in its duty to make factual findings assessing the credibility of the prosecutor's race-neutral explanation for questionable peremptory strikes. As the prosecutor's explanation was based on the juror's demeanor, it could not be confirmed or rejected on the basis of the record.

Despite the fact that the Court in Snyder ordered a new trial, the lower courts are divided on whether a new trial is always required in similar situations, or whether it is instead permissible to remand to the trial court for retroactive findings or to conduct an evidentiary hearing to reconstruct the prosecutor's state of mind at the time of jury selection. (6) Decisions permitting such remands have invited post hoc justifications for questionable peremptory strikes and have sown further confusion as litigants dispute the permissible parameters of such proceedings (such as whether and to what extent discovery should be permitted, whether defense attorneys may question the prosecutor under oath, and whether the prosecutor may give new reasons on remand that were not given at trial). (7) Such remands have occasionally taken on lives of their own and wasted judicial resources. (8) Lower courts will continue to struggle with the question until the Supreme Court provides a definitive answer.

This Article argues that both doctrinal and practical considerations counsel in favor of granting the criminal defendant a new trial when the trial court fails to make sufficient findings of fact and where the prosecutor's race-neutral explanation for the challenged strike cannot be confirmed or rejected on the basis of the existing record.

Part II explains the doctrinal underpinnings of the Supreme Court's decision in Batson, and the significance of the Supreme Court's decision in Snyder v. Louisiana. In Batson, the Court articulated a three-part test to determine whether the exercise of a peremptory challenge violated the Equal Protection Clause. (9) In Snyder, the Court applied that test in the context of a peremptory challenge exercised on the basis of juror demeanor, underscoring that trial courts have a duty to make explicit, on-the-record findings in rejecting a Batson challenge. (10)

Part III discusses the different approaches that state and federal appellate courts have taken when the trial court has failed to make the findings required by Batson and where the prosecutor's race-neutral explanation cannot be confirmed or denied on the basis of the record. Some courts have held that Snyder requires a new trial in all such cases. (11) Other courts have ordered a remand, directing the trial court to supply the missing findings retroactively if it can, and sometimes permitting the trial court to hold an evidentiary hearing for that purpose. (12) At least one federal court has held, however, that even after Snyder, a lack of explicit findings in resolving a Batson challenge is not necessarily reversible error. (13)

Part IV offers an analysis of the doctrinal and practical considerations bearing on the question, concluding that those considerations counsel in favor of a bright-line rule directing appellate courts to order a new trial whenever a trial court resolves a Batson challenge without making the required findings and where the prosecutor's race-neutral explanation cannot be confirmed or rejected on the basis of the existing record. Several considerations counsel in favor of such a bright-line rule. For example, such a rule eliminates the possibility that a remand may morph into a series of endless proceedings with additional appeals and subsequent remand. It also avoids the temptation to engage in post hoc rationalization of the trial court's prior ruling and avoids the problem that occurs when the lapse of time since the trial court's initial ruling renders subsequent findings unreliable. Finally, it avoids placing on trial judges what is often an insurmountable burden--to attempt to reconstruct what happened sometimes months or years earlier, often based solely on the judge's recollection. In light of these inherent problems, a new trial is in many, if not most, cases the best solution.

BATSON CHALLENGES AND THE SUPREME COURT'S DECISION IN SNYDER V. LOUISIANA

The Supreme Court's decision in Batson addresses the conflict between the longstanding practice of allowing prosecutors to use peremptory challenges during jury selection and the constitutional prohibition against excluding people from juries on the basis of race. The Supreme Court held that the Equal Protection Clause requires that peremptory challenges be subject to scrutiny whenever a criminal defendant can make a prima facie showing of purposeful racial discrimination in the exercise of the challenge. (14) While this might seem like a commonsense application of the Equal Protection Clause, particularly in light of the fundamental nature of the right to serve on a jury, in practice it has been somewhat problematic, largely because of the difficulty of discerning with any confidence whether a prosecutor's use of a peremptory challenge is motivated by race. (15) Litigants have repeatedly called upon the Supreme Court to clarify how the Batson procedure is to be applied in practice. (16)

1. THE HISTORICAL BACKGROUND OF THE PEREMPTORY CHALLENGE

   Although there is no constitutional right to peremptory challenges, or requirement that they be allowed for either the prosecution or the defense, (17) peremptory challenges have been part of jury trials in the United States and England for centuries and have been traditionally viewed as a valuable tool in the selection of an impartial jury. (18) Among other things, peremptory challenges allow defendants and prosecutors to remove jurors they intuitively suspect of bias where the evidence of bias is not sufficient to support a challenge for cause. Peremptory challenges also allow attorneys to remove jurors they have inadvertently alienated through voir dire questioning. (19)

   The use of peremptory challenges has been traced back at least as far as the early fourteenth century in England, (20) and one of the statutes passed by...