Oregon Law Review : Vol.100, No.2 (2022)

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Batson v. Armstrong: Prosecutorial Bias and the Missing Evidence Problem
(University of Oregon School of Law, 2022-05-12) Brown, Darryl K.
Batson v. Kentucky prohibits prosecutors’ racially motivated decisions to eliminate a potential juror during jury selection. United States v. Armstrong prohibits prosecutors’ racially motivated decisions to charge a defendant with a crime. Scholars uniformly criticize Batson as an ineffectual doctrine. Most Batson challenges fail, but defendants do win those claims occasionally. They virtually never win Armstrong claims. Why is that so? Both decisions specify how the equal protection doctrine’s prohibition on racially motivated state action applies to prosecutorial decisions. Their doctrinal structures are roughly the same—a defendant must offer prima facie proof of a racially motivated decision; if he does, then the prosecutor must offer race-neutral explanations for her actions. Both require defendants to prove prosecutors’ subjective, racially motivated intent. Successful challenges under either doctrine are rare. Yet in the thirty-five years since the Batson decision, defendants have convinced courts hundreds of times—including, repeatedly, the U.S. Supreme Court—that prosecutors acted with racial bias when exercising peremptory challenges during jury selection.