The Unbearable Lightness of Batson: Mixed Motives and Discrimination in Jury Selection


The Equal Protection Clause prohibits the use of peremptory challenges to exclude jurors on account of protected characteristics such as race and sex. Mixed-motive problems arise where the proponent of a strike confesses to have been motivated by a combination of proper and improper purposes. In other contexts, so-called “mixed-motive analysis,” which provides the challenged party an opportunity to prove that the “same decision” would have been made absent the improper motive, has been permitted. The United States Supreme Court has not yet ruled, however, on whether “mixed-motive” analysis is consistent with the governing framework set forth in Batson v. Kentucky, and those state and federal courts that have addressed the issue have reached different conclusions. This Article argues that the mixed-motive defense should not be permitted under Batson. That tool was developed in a very different context, serves purposes not relevant to discrimination in jury selection, and undermines Batson’s basic goals. The Article proposes adoption instead of a “motivating” or “substantial” factor test, as currently used in Title VII mixed-motive cases, to determine when peremptory strikes based on mixed motives violate the Constitution.


Civil Rights and Discrimination | Constitutional Law | Criminal Law | Criminal Procedure

Date of this Version

April 2006