Actus Reus

ac·tus re·us \ˈak-təs-ˈrē-əs, ˈäk-tu̇s-ˈrā-u̇s\

noun : the wrongful act that makes up the physical action of a crime

Latin: guilty act

Prosecution Notes from Jury Selection and Batson Objections

(CDC Fall 2011) writes:

I recently did a presentation for some fellow public defenders about the legal principles set forth in and its progeny, and re-learned, when reading the U.S. Supreme Court’s opinion in , how important it is to move the trial court to (a) consider the prosecution’s notes related to jury selection when ruling on a objection; and (b) make those prosecution’s notes part of the record for appellate purposes.

As a reminder, in , SCOTUS reversed the Georgia Supreme Court and remanded Mr. Foster’s case for a new trial; it held that his right to Equal Protection was violated by the prosecution’s purposefully racially discriminatory exercise of peremptory challenges to excuse two Black potential jurors.

In , SCOTUS’s holding that the prosecution purposefully discriminated against the two Black panelists was based on (1) the fact that some of its proffered reasons for striking a Black panelist applied just as well to an otherwise-similar non-Black [panelist] who was permitted to serve; (2) shifting explanations given by the prosecution during arguments related to the objection; (3) misrepresentations of the record bythe prosecution; and (4) the persistent focus on race in the prosecution’s file.

Prof. Lasch pointed out, and I agree, that the Court arguably implied, based on the fact that it did not consider all purportedly race-neutral reasons set forth by the prosecution as to either excused Black panelist, that one patently false race-neutral reason offered by the prosecution could outweigh potentially valid remaining race-neutral reasons and result in a finding of purposeful discrimination.

The ability to show a trial or appellate court that a purportedly race-neutral reason is false or pretext for purposeful discrimination is imperative. The prosecution’s notes related to jury selection can serve as an invaluable tool in making that showing during jury selection or in appellate proceedings. I resolved that, from this point forward, I will move the trial court to make the prosecution’s notes related to jury selection part of the record in every case in which I make a Batson objection and recommend all defenders consider doing the same.

There are bases in law, aside from in to ask a trial court to make the prosecution’s notes part of the record. For example, the U.S. Supreme Court in , asserted “all of the circumstances that bear upon the issue of racial animosity must be consulted” when determining whether a peremptory challenge was exercised in a purposefully discriminatory manner. Also, in SCOTUS asserted that “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial . . .evidence of intent as may be available.”


  1. Actus Reus says:

    Becca Butler-Dines (CDC Spring 2016) writes in response:

    Thought you might enjoy this podcast, the “object anyway” episode goes well with Sara’s post.

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