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In March 2008, the Supreme Court decided Snyder v. Louisiana, the latest in the line of progeny of Batson v. Kentucky. This Note demonstrates that Snyder is part of a historical pattern of Supreme Court decisions concerning the use of peremptory challenges in which the Court has moved away from permitting the unfettered use of the peremptory challenge in favor of stronger Equal Protection considerations. Snyder alters the requirements for trial judges in deciding Batson challenges by requiring them to provide some explanation of their reasons for accepting a prosecutor's justification of a peremptory challenge. Snyder is the latest step in the historical pattern of trying to create a more enforceable standard to prevent racial discrimination in jury selection and in keeping with this pattern should be broadly interpreted going forward.
Introduction
The peremptory challenge is a longstanding jury selection tool that allows parties to remove prospective jurors without cause.1 The challenge has traditionally been thought of as a way to ensure an impartial jury by allowing parties to dismiss any prospective juror they suspect might be biased against them.2 In contrast to a challenge for cause, which requires showing a specific reason why a juror might not be impartial, no justification is required for a peremptory challenge.3 Historically, "[t]he essential nature of the peremptory challenge [was] that it [was] one exercised without a reason stated, without inquiry and without being subject to the court's control."4
"The peremptory challenge has very old credentials," coming to the United States by way of English common law.5 Emphasizing the purely discretionary nature of the peremptory challenge, Blackstone described it as "an arbitrary and capricious species of challenge."6 Blackstone nonetheless justified the challenge in terms of fairness and "tenderness and humanity" to defendants, asserting that a defendant should not have to be tried by anyone whom he suspects might be prejudiced against him.7 Blackstone wrote that the peremptory challenge could only be exercised by defendants, not by the Crown,8 but ultimately "[p]eremptories on both sides became the settled law of England."9
The traditional unfettered, purely discretionary use of the peremptory challenge allowed attorneys to remove a prospective juror on the basis of race.10 An inherent and well-recognized tension therefore exists between this traditional operation of the peremptory...