THE RASHOMON EFFECT, JURY INSTRUCTIONS,
AND PEREMPTORY CHALLENGES:
RETHINKING HERNANDEZ V. NEW YORK
Anthony Fassano*
I. INTRODUCTION
Batson v. Kentucky1 established the rule that prohibits prosecutors from
using peremptory challenges on the basis of race.2 However, the test that the
Supreme Court established to protect this right is insufficient, as it allows
lawyers to use demeanor evidence, such as eye contact or tone of voice, to
defeat accusations of racial discrimination in the use of peremptory
*
B.A., Rowan University, 2001; M.A., Rutgers University, Camden, 2005; J.D.,
Rutgers University School of Law—Camden, 2010. I would like to dedicate this Note to my
wife, Kimberly Korejko, and to my mother, Mary-Lou Fassano. Without their support and
sacrifice, lawschool, much less this Note, would not have been possible.
1. 476 U.S. 79 (1986).
2. Id. at 94. Peremptory challenges are part of one stage in the jury-selection process.
The process begins when the court devises a “jury wheel,” which is a list of names of possible
jurors living in the district. Raymond J. Broderick, Why the Peremptory Challenge Should be
Abolished, 65 TEMP. L. REV. 369, 369 n.1 (1992). The jury wheel is usually compiled from
motor vehicle or voter registration lists. Id. The court then removes those who are, for one
reason or another, ineligible for jury duty. Id. The result is the “qualified jury wheel.” Id. The
court then randomly selects names from the qualified jury wheel, and the people selected
become a part of the venire, or panel. Id.
Once the potential jurors are on the venire, the judge and lawyers conduct the voir dire, a
process by which they ask the potential jurors background questions in order to learn if any of
the potential jurors would have biases or prejudices that would prevent him or her from being
impartial. Id. If a potential juror has a bias, such as a relationship with one of the parties,
lawyers, or witnesses, then that juror can be challenged for cause. Id. The challenging party
must explain why that juror would not be impartial. Id. In addition, each side gets a limited
number of peremptory challenges, which can be used to excuse a potential juror without
giving an explanation. See infra note 12. When the challenges are finished, the jury is
empanelled and the trial begins.
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challenges. Lawyers can easily come up with race-neutral explanations for
striking a particular juror, and this leads to violations of Batson. The
deference given to the trial court’s ruling on Batson challenges strips these
decisions of meaningful appellate review, as all but the most egregious uses
of peremptory challenges are sustained. This practice severely
underestimates the very real presence of racism, including unconscious
racism. In what follows, I will demonstrate this problem, using as an
example Hernandez v. New York.3
In Hernandez, a Puerto Rican defendant living in a community with a
substantial Latino population was on trial, and the prosecutor used his
peremptory challenges to strike all of the jurors who were bilingual in
English and Spanish.4 He did not challenge them because they were bilingual
per se, but because he was concerned that their answers to questions during
the voir dire showed that they might not be able to accept the official
translation of Spanish testimony given by the court interpreter.5 The trial
judge accepted this explanation.6 The Supreme Court upheld this use,
recognizing that, while the prosecutor could not challenge the jurors solely
on the basis of their knowledge of Spanish, the fear that the bilingual jurors
would not abide by the official translation of the testimony was a legitimate
and race-neutral explanation.7
However, upon closer examination, we will see that the prosecutor’s fear
of the bilingual jurors’ ability to follow the official testimony was not real.
Bilinguals cannot just tune out language that they perceive and understand,
as the prosecutor in Hernandez seems to have thought. And the law must
presume that they would be able to follow an instruction to consider only the
translation as testimony in the same way that the law presumes that jurors
will apply other types of complicated evidentiary instructions. Furthermore,
the Hernandez court failed to consider that jurors do not all come away with
uniform versions of testimony. Because all jurors get a unique view of
testimony, the fear that some will listen to the Spanish testimony is not a
legitimate fear.
In Part II of this note, I place Hernandez in the context of the history of
the peremptory challenge in Anglo-American law and in the Supreme
Court’s peremptory challenge jurisprudence. In Part III, I touch on the work
of legal scholars who have argued that Hernandez was wrongly decided
3.
4.
5.
6.
7.
500 U.S. 352 (1991).
Id. at 355–56.
Id. at 356–57.
Id. at 358.
Id. at 361.
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because the prosecutor’s use of peremptory challenges violates the rule in
Batson, and thus the Equal Protection Clause of the Fourteenth Amendment.
In response to questions during the voir dire, the bilingual jurors stated that
they would try to follow the official interpretation.8 This honest answer was
likely the same answer that any juror would give if asked whether he or she
would be able to entirely disregard evidence if he finds that it does not meet
the relevance threshold. In addition, the ease with which a prosecutor can use
pretextual reasons to discriminate with peremptory challenges on the basis of
race, and the real possibility that the prosecutor could be motivated by
unconscious racism, requires reviewing courts to exercise greater scrutiny of
Batson challenges. Otherwise, the right recognized in Batson would not
apply to Latinos.
In Part IV, I examine evidence from the social sciences to show two
things. First, court interpreters have more of an influence on the proceedings
than is apparent at first glance. Therefore, it is not prudent to allow
prosecutors to have a readily available means of striking bilingual jurors
whenever any of the testimony is going to be given in a language other than
English. Second, I show that all jurors come away from a trial with unique
experiences and memories of the testimony. As a consequence, the fear that
bilingual jurors are listening to a different version of the testimony is not
legitimate, as all of the jurors will be listening to a different version to some
extent, regardless of the language in which the testimony is given. Finally, I
propose that there are two ways that courts should handle Batson challenges.
First, once a moving party establishes a prima facie case of racial
discrimination in the use of peremptory challenges, the burden of proof
should be on the nonmoving party to show that there was a legitimate
explanation for striking the juror. Second, appellate courts must scrutinize
trial courts’ rulings on Batson challenges more carefully. Without such
changes, the right guaranteed by Batson turns out to be “a vain and illusory
requirement.”9
8.
9.
Id. at 356.
Norris v. Alabama, 294 U.S. 587, 598 (1935).
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II. THE ROLE OF PEREMPTORY CHALLENGES
A. The History of the Peremptory Challenge
The use of peremptory challenges has a long and storied history in
Anglo-American law.10 They first were used shortly after the Assizes of
Clarendon in 1166 authorized trial by jury.11 As part of the common law
inherited from England, peremptory challenges became a part of the
American justice system in colonial times, and they continue to be used in
this country today.12 The number of peremptory challenges given to each
side has changed over time and varies by jurisdiction and by the type of
trial.13
The rationale for peremptory challenges is to allow the excuse of jurors
whom a party fears will prejudice his case, but who cannot be challenged for
cause.14 In this way, peremptory challenges help ensure the selection of an
10. For a more detailed discussion of the history of the peremptory challenge, both in
England and in the United States, see Broderick, supra note 2, at 371–410.
11. Assize of Clarendon 1166, MEDIEVAL SOURCEBOOK, http://fordham.edu/halsall/
source/aclarendon.html.
12. In a non-capital criminal case in the federal system, the prosecutor gets six
peremptory challenges and the defense gets ten. FED. R. CRIM. P. 24(b)(2). When the
prosecution seeks the death penalty, each side gets twenty. FED. R. CRIM. P. 24(b)(1). In civil
trials in the federal system, each side gets three peremptory challenges. 28 U.S.C. § 1870
(2006). The states also allow parties a certain number of peremptory challenges. The number
varies by jurisdiction and the type of trial. For example, in civil trials in New Jersey, each side
is allowed six peremptory challenges. N.J. CT. R. 1:8-3(c). In criminal trials in New Jersey, the
number of peremptory challenges varies according to the offense. For more serious crimes,
such as murder, aggravated assault, kidnapping, and arson, the defense is allowed twenty
peremptory challenges and the prosecution twelve. N.J. CT. R. 1:8-3(d). For lesser offenses,
each side is allowed ten peremptory challenges. Id.
England, on the other hand, is different. The number of peremptory challenges for each
side was decreased from seven to three by the 1977 Criminal Justice Act. Then, just eleven
years later, they were abolished altogether by the 1988 Criminal Justice Act.
13. See supra note 11.
14. “[A] prisoner . . . should have a good opinion of his jury,” so the “law wills not that
he should be tried by any one man against whom he has conceived a prejudice, even without
being able to assign a reason for his dislike.” 4 WILLIAM BLACKSTONE, COMMENTARIES *353;
see also Batson v. Kentucky, 476 U.S. 79, 121 (1986) (Burger, C.J., dissenting) (“Permitting
unexplained peremptories has long been regarded as a means to strengthen our jury system . . .
.”).
While the number of peremptory challenges is limited, each party can exercise an
unlimited number of challenges for cause. Broderick, supra note 2, at 369 n.1. It is more
difficult to challenge a potential juror for cause, as that requires the challenging party to
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impartial jury.15 Despite its deep roots in Anglo-American jurisprudence and
its use in every jurisdiction in the United States, the peremptory challenge is
not a right guaranteed by the Constitution.16 Because a party may have a
suspicion that a potential juror may be prejudicial against his or her case, but
not to the extent that would justify a challenge for cause, the peremptory
challenge is “an arbitrary and capricious right” that “must be exercised with
full freedom, or else it fails of its full purpose.”17 Trial lawyers develop
instincts as they gain trial experience, and they use these instincts to decide
which jurors would be less likely to sympathize with their client.18 However,
despite the unlimited nature of the peremptory challenge, the Supreme Court
has recognized that the right to equal protection of the law is a more
compelling right, at least in some limited circumstances. One such
circumstance in which the Equal Protection Clause is invoked is when a
party uses peremptory challenges to discriminate on the basis of race.19
The history of racial discrimination with regard to peremptory challenges
does not go back as far as the twelfth century, but its history is long as well.20
justify the challenge. Peremptory challenges, on the other hand, do not have to be explained,
except for a limited number of circumstances. See infra Part II.B.
15. Batson, 476 U.S. at 99 n.22 (calling peremptory challenges a “historic trial practice
[that] long has served the selection of an impartial jury”).
For a contrary view of the opinion expressed in Batson, see Richard Singer, Peremptory
Holds: A Suggestion (Only Half Specious) of a Solution to the Discriminatory Use of
Peremptory Challenges, 62 U. DET. J. URB. L. 275, 288 (1985) (arguing that lawyers use
peremptory challenges in order to secure jurors partial to their cause, not to secure an
impartial jury).
16. “There is nothing in the Constitution of the United States which requires the
Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial
jury is all that is secured.” Stilson v. United States, 250 U.S. 583, 586 (1919).
17. Lewis v. United States, 146 U.S. 370, 378 (1892).
18. “[The] use of peremptories is at best based upon seat-of-the-pants instincts, which
are undoubtedly crudely stereotypical and may in many cases be hopelessly mistaken.”
Batson, 476 U.S. at 138 (Rehnquist, J., dissenting). In his dissent, Justice Rehnquist goes on to
argue that racial discrimination in the use of peremptory challenges is acceptable so long as
any party is able to exercise them in the same way. Id. So a white lawyer can strike the
African Americans from the jury, just like an African American lawyer can strike all of the
white people from the jury. This fails to take into account the fact that white people would
likely make up the majority of potential jurors on the venire because of their sheer numbers.
The limited number of peremptory challenges would make it very difficult to strike all of the
white people from the jury, but the same limitation would likely not prevent all of the
members of a minority group from being stricken.
19. Id. at 84.
20. For a brief survey of the history of the use of ethnic and racial stereotypes and the
use of peremptory challenges, see Juan F. Perea, Hernandez v. New York: Courts,
Prosecutors, and the Fear of Spanish, 21 HOFSTRA L. REV. 1, 12–15 (1992) (citing examples
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The Supreme Court first addressed a question about racial discrimination in
the composition of juries shortly after the ratification of the Fourteenth
Amendment. In Strauder v. West Virginia,21 the Court ruled that West
Virginia had denied an African American criminal defendant equal
protection of the law because it permitted only white men to serve on
juries.22 This decision, however, was limited to the composition of the
venire.23 Strauder did not prevent parties who wanted to exclude African
Americans from serving on juries from doing so through the use of
peremptory challenges.24 It was not until almost one hundred years later, in
Batson, that the Court addressed the issue of racial discrimination in the
process of composing the jury itself.25
B. The Batson Challenge and the Equal Protection Clause
The Supreme Court first heard a case that presented a challenge to the
use of peremptory challenges on the basis of race in Swain v. Alabama.26 In
that case, an African American criminal defendant objected to the
prosecutor’s use of peremptory challenges, which were used to strike all six
African Americans from the venire.27 The Court ruled that the Fourteenth
Amendment does place some limits on the prosecutor’s ability to use
peremptory challenges, just like it prevents states from prohibiting members
of a racial group from serving on juries.28 However, the Equal Protection
Clause does not prohibit the prosecutor from using peremptory challenges on
the basis of race if the use of the challenges was based on a trial-related
from prosecution manuals recommending that prosecutors use peremptory challenges to strike
members of minority groups); see also infra note 128.
21. 100 U.S. 303 (1879).
22. Id. at 312.
The very fact that colored people are singled out and expressly denied by a statute all
right to participate in the administration of the law, as jurors, because of their color,
though they are citizens, and may be in other respects fully qualified, is practically a
brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant
to that race prejudice which is an impediment to securing to individuals of the race
that equal justice which the law aims to secure to all others.
Id. at 308.
23. Id. at 310.
24. Swain v. Alabama, 380 U.S. 202, 210–12 (1964), overruled by Batson v. Kentucky,
476 U.S. 79 (1986).
25. Batson, 476 U.S. at 82.
26. 380 U.S. 202 (1964).
27. Id. at 210.
28. Id. at 203–04.
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issue.29 Furthermore, a defendant making an equal protection claim would
have to show that
the prosecutor in [the] county, in case after case, whatever the circumstances,
whatever the crime and whoever the defendant or the victim may be, is
responsible for the removal of Negroes who have been selected as qualified
jurors by the jury commissioners and who have survived challenges for
30
cause, with the result that no Negroes ever serve on petit juries[.]
Thus, the defendant had to show not only that the prosecutor used
peremptory challenges to discriminate in his case, but also that he
systematically discriminated in all of the cases that the he had tried.31 This
constituted a “crippling burden” that defendants could rarely meet.32
The Court revisited Swain in Batson. The defendant in Batson was an
African American criminal defendant charged with second degree burglary
and receipt of stolen goods.33 During the jury-selection process, in a move
similar to that of the prosecutor in Swain, the prosecutor used his peremptory
challenges to strike the four African Americans on the venire, which resulted
in an all-white jury.34 The defendant’s attorney moved for a new jury, but the
judge denied the motion, stating that the parties could use peremptory
challenges to “strike anybody they want to.”35 The jury convicted the
defendant on both counts.36 The Kentucky Supreme Court affirmed, relying
on Swain, and found that the defendant did not show that the prosecutor had
systematically excluded members of his race from the venire.37
The Supreme Court overruled the Kentucky Supreme Court and its own
decision in Swain.38 The Court replaced the Swain test with Batson’s threepart, burden-shifting test for determining whether peremptory challenges are
used in a racially discriminatory way that violates the Equal Protection
29. “[I]t is permissible to insulate from inquiry the removal of Negroes from a particular
jury on the assumption that the prosecutor is acting on acceptable considerations related to the
case he is trying, the particular defendant involved and the particular crime charged.” Id. at
223.
30. Id.
31. Id.
32. Batson v. Kentucky, 476 U.S. 79, 92 (1986).
33. Id. at 82.
34. Id. at 83.
35. Id.
36. Id.
37. Id. at 84.
38. Id. at 98.
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Clause.39 First, the party making the challenge40 must establish “a prima facie
case of purposeful discrimination by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose.”41 After the
moving party makes a prima facie case, the burden then shifts to the other
side to give a race-neutral explanation for the use of the peremptory
challenges.42 If the explanation is race neutral on its face, then the trial court
determines whether the moving party has met the burden of showing that the
peremptory challenges were purposefully used in a racially discriminatorily
way.43 Since the prosecutor in Batson was not required to offer a race-neutral
explanation for using peremptory challenges after the defendant had made a
prima facie case, the Court remanded to the trial court in order to illicit the
prosecutor's race-neutral response (if any) and determine whether the
peremptory challenges were used in a purposefully discriminatory way.44
39. Id.
40. Although a Batson challenge could originally be made only by criminal defendants,
it was later expanded to cover all other parties. See infra note 44. For that reason, I will use
the term “moving party” to describe the party making the Batson challenge.
41. Batson, 476 U.S. at 93–94. In making a prima facie case, the party first must
establish that he or she belongs to a cognizable group. Id. The party can then point to
circumstantial evidence, such as the unexplained absence of members of his or her race from
juries over time, or even to the questions asked by opposing counsel during the voir dire, in
order to show that members of his or her race are purposefully discriminated against in the
jury-selection process. Id.
42. Id. The Court did not specify exactly what constitutes a race-neutral explanation.
However, the Court did say that the explanation “need not rise to the level justifying exercise
of a challenge for cause,” but also that that a juror could not be challenged on the basis of race
on the assumption that he or she would be partial to a party of the same race. Id. at 97.
In his dissent, Chief Justice Burger argued that the Court’s idea of a race-neutral
explanation was unworkable.
Our system permits two types of challenges: challenges for cause and peremptory
challenges. Challenges for cause obviously have to be explained; by definition,
peremptory challenges do not. . . . Analytically, there is no middle ground: A
challenge either has to be explained or it does not. It is readily apparent, then, that to
permit inquiry into the basis for a peremptory challenge would force the peremptory
challenge [to] collapse into the challenge for cause.
Id. at 127 (Burger, C.J., dissenting) (citation omitted) (internal quotation marks omitted).
43. Id. at 98.
44. Id. at 100. Although Batson only affected the use of racially discriminatory
peremptory challenges on the part of the prosecution in a criminal trial, the Court extended the
prohibition to civil trials in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 (1991),
and finally to criminal defendants in Georgia v. McCollum, 505 U.S. 42, 59 (1992). In
addition, Batson challenges are available for defendants even when the race of the excluded
jurors is different that the race of the defendant. Powers v. Ohio, 499 U.S. 400, 415 (1991).
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Justice Marshall’s concurring opinion in Batson is notable because he
goes so far as to say that the only way to end racial discrimination in the use
of peremptory challenges is to ban peremptory challenges all together.45 He
notes the difficulty that the moving party would have under the new test in
proving the motives of the party exercising the peremptory challenges.46
Furthermore, the discrimination would have to be blatant in order for the
moving party to establish a prima facie case.47 That means that a party who
uses peremptory challenges to discriminate against some of the jurors of one
race, but not against all of them, would make it very difficult for the moving
party to establish a prima facie case. In addition, after establishing a prima
facie case, the moving party would have the difficult task of assessing the
motives of the party exercising the peremptory challenges.48 The ease with
which a party can assert a racially neutral explanation for the peremptory
challenges makes the assessment of motives especially difficult.49 The only
way to ensure that a party will not use peremptory challenges in a way that
violates the Equal Protection Clause is to eliminate the challenges
altogether.50
C. Hernandez and Bilingualism as a Basis for a Peremptory Challenge
Just seven months after the Supreme Court’s decision in Batson, the trial
began for Dionisio Hernandez, a Puerto Rican man living in New York.51
The case would eventually work its way up to the Supreme Court and
The prohibition was extended to include peremptory challenges against women in J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 146 (1994).
45. Batson, 476 U.S. at 103; see also Broderick, supra note 2 (arguing that because the
Batson standard is under inclusive and the procedure time consuming, the peremptory
challenge should be eliminated); Rodger L. Hochman, Abolishing the Peremptory Challenge:
The Verdict of Emerging Case Law, 17 NOVA L. REV. 1367, 1403 (1993) (“The peremptory
challenge, once used as a tool to insure impartiality on juries, is probably the most significant
means by which prejudice and bias are injected into the jury system.”).
The difficulty of balancing between equal protection and peremptory challenges was
anticipated by Justice Goldberg: “Were it necessary to make an absolute choice between the
right of a defendant to have a jury chosen in conformity with the requirements of the
Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a
choice of the former.” Swain, 380 U.S. at 244 (Goldberg, J., dissenting).
46. Batson, 476 U.S. at 103.
47. Id. at 105.
48. Id.
49. Id. at 106.
50. Id. at 107.
51. State v. Hernandez (Hernandez I), 75 N.Y.2d 350 (1990).
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challenge the scope of Batson.52 Hernandez was convicted of two counts
each of attempted murder and criminal possession of a weapon.53 The crime
took place in Brooklyn, and the trial in Kings County, New York, which has
a substantial Latino population.54 During the voir dire, the prosecutor used
peremptory challenges to excuse the four Latinos55 from the venire.56 The
defense objected and moved for a mistrial, and an extensive colloquy
ensued.57 The prosecutor was ready with his race-neutral explanation before
the defense even had the opportunity to establish the prima facie case
required in the first step of the Batson test.58 The prosecutor explained that he
had asked the potential jurors if they would be able to listen to and follow the
official interpretation of the Spanish testimony.59 He said that from their
demeanor, as well as their initial answers that they would try, he was not
convinced that they would be able to follow the interpreter, and that this
inability could give them an undue influence over the rest of the jury.60
52. Hernandez v. New York, 500 U.S. 352 (1991).
53. Hernandez I, 75 N.Y.2d at 353.
54. Hernandez, 500 U.S. at 362.
55. The New York Court of Appeals uses the terms “Latino” and “Hispanic”
interchangeably. For the purposes of consistency, and in keeping with the United States
Supreme Court’s opinion, I have chosen to use “Latino” throughout this Note. I recognize, of
course, that the terms are not synonymous. “Latino” describes someone from Latin America,
whereas “Hispanic” can refer either to someone from Spain or to any Spanish-speaking
person.
56. Hernandez, 500 U.S. at 362. Two of the potential jurors, Munoz and Rivera, had
relatives who had been prosecuted by the same district attorney’s office. The issue on appeal
concerns the other two, Mikus and Gonzalez, because there was not the same obvious reason
to challenge them. Since both Mikus and Gonzalez ultimately indicated that they could accept
the official version of the testimony, the prosecutor had to use peremptory challenges to
remove them. See Brief for Respondent at 17, Hernandez v. New York, 500 U.S. 352 (1991)
(No. 89-7645). Otherwise, both jurors could likely have been challenged for cause. Also
noteworthy is the fact that there was no record made of the voir dire, so there is no way of
knowing whether the prosecutor asked a general question about Spanish-speaking ability to all
of the potential jurors. What we do know is that three of the challenged jurors had Latinosounding last names. The fourth, Mikus, was a married woman from Puerto Rico. See infra
note 84.
57. Hernandez, 500 U.S. at 357–58.
58. Id. at 356.
59. Id. at 356–57.
60. Id. The prosecutor’s exact words were as follows:
They each looked away from me and said with some hesitancy that they would try,
not that they could, but that they would try to follow the interpreter, and I feel that in
a case where the interpreter will be for the main witnesses, they would have an undue
impact on the jury.
Id.
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Ultimately, the prosecutor conceded that, after further questioning, the
bilingual jurors said that they could follow the interpreter.61 But because of
their initial answers and their demeanor during the voir dire, he was not
convinced that they would be able to do so.62 The defense claimed that the
prosecutor had used his peremptory challenges in order to prevent Latino
jurors from sitting on the jury.63 The trial judge rejected the defense’s
argument and, while not corroborating the prosecutor’s account of the
potential jurors’ demeanor, did cite the prosecutor’s reason in making the
peremptory challenges.64 The judge also found that the prosecutor did not
have the intent to remove the potential jurors simply because they were
Latino because the victims, like the defendant, were all Latino.65 Therefore,
Latino jurors would be just as likely to sympathize with the victims as with
the defendant.66
The New York Court of Appeals affirmed the conviction.67 In applying
the Batson three-step test, the court found that the prosecutor’s use of
peremptory challenges to excuse only Latino potential jurors was enough to
establish a prima facie case for purposeful discrimination.68 The court also
held, however, that the prosecutor’s explanation based on his fear that the
Latino potential jurors could not follow the official interpretation of the
testimony was race neutral.69 The court rejected the defense’s argument that
language is inextricably bound to race in a way that makes language a proxy
for race.70 Furthermore, since Batson expressly stated that the explanation of
the peremptory challenge need not arise to the level of cause,71 the
61. Id. at 357 n.1.
62. Id. at 356–57, 357 n.1.
63. Id. at 355–56.
64. Id. at 357 n.2, 358.
65. Id. at 357–58. In the trial judge’s words,
The victims are all Hispanics, he said, and therefore, they will be testifying for the
People, so there could be sympathy for them as well as for the defendant, so he said
[it] would not seem logical in this case [that] he would look to throw off Hispanics,
because I don't think that his logic is wrong. They might feel sorry for a guy who’s
had a bullet hole through him, he’s Hispanic, so they may relate to him more than
they’ll relate to the shooter.
Id. at 358 n.2.
66. Id. at 357–58, 358 n.2.
67. Id. at 353.
68. Id. at 356. The prosecutor offered his explanation before the defense even made its
prima facie case. See supra note 60 and accompanying text.
69. Hernandez, 500 U.S. at 356.
70. Id.
71. Batson v. Kentucky, 476 U.S. 79, 97 (1986).
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prosecutor does not have to disprove his subjective state of mind.72 The trial
judge, who was present at the voir dire, was in the best position to determine
whether the prosecutor’s explanation was a mere pretext or whether it was
legitimate, and appellate courts should be deferential to trial courts’ findings
of fact.73
The dissenting opinion by Judge Kaye echoed the arguments made by
Justice Marshall in his concurring opinion in Batson:74 Racial prejudice,
whether conscious or unconscious, coupled with the ease with which a party
can advance a pretextual, race-neutral explanation for peremptorily
challenges against jurors of a particular race, leaves very little to Batson’s
prohibition on the use of peremptory challenges in a racially discriminatory
way.75 In addition, if the translator makes an error with the testimony, the
state has an interest in making sure that the error is noticed.76 Finally, the
concern with undue influence on the jury could be corrected by instructing
the juror to bring any errors to the court’s attention, but under no
circumstances to share the information with the other members of the jury.77
In a plurality opinion authored by Justice Kennedy,78 the United States
Supreme Court affirmed the conviction and held that the prosecutor’s
explanation was race neutral and rightly withstood the defense’s Batson
challenge.79 Like the New York Court of Appeals, the Court began the
Batson analysis by recognizing that the defense had established a prima facie
case for purposeful discrimination.80 In advancing a race-neutral explanation
in response to the prima facie case, the prosecutor need only offer an
explanation “based on something other than race.”81 The prosecutor’s belief
that the potential jurors would not be able to accept the official translation of
the testimony qualified as a race-neutral explanation.82 Finally, the trial
72. Hernandez I, 75 N.Y.2d at 357.
73. Id. at 356.
74. Id. at 360 (Kaye, J., dissenting).
75. Id. at 362.
76. Id. at 364.
77. Id.
78. In her concurring opinion, joined by Justice Scalia, Justice O’Connor argues that the
plurality went too far in its analysis. The inquiry should have ended after the Court determined
that the trial judge’s decision was not clearly erroneous. Hernandez, 500 U.S. at 375
(O’Connor, J., concurring in the judgment).
79. Id. at 358 (majority opinion).
80. Id. at 359; see supra note 60.
81. Id. at 360.
82. Id. at 361. Justice Kennedy goes on to explain how the prosecutor did not view the
potential jurors as bilinguals, but as potential jurors who would not be able to accept the
official translation of the testimony.
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judge’s factual finding of whether the defense met the burden of proving
purposeful discrimination is a decision treated with deference, overturned
only if clearly erroneous.83 In making his determination, the trial judge could
have taken into account the demeanor of the jurors, the fact that the
prosecutor did not know which potential jurors were Latino,84 and the fact
that the both the victims and the defendant were all Latino.85
Justice Stevens, joined by Justices Marshall and Blackmun, dissented.
After the defense establishes a prima facie case, they argued, the prosecution
has to offer an explanation that is not only race neutral, but also legitimate
and sufficiently persuasive.86 The prosecutor’s concern with the potential
jurors’ ability to accept the official version of the testimony was neither
legitimate nor persuasive.87 The dissent’s problem with the plurality’s
standard is threefold.88 First, it inevitably leads to the disproportionate
disqualification of Spanish-speaking jurors.89 Second, the prosecutor’s
concern could have been dealt with in less drastic ways.90 For instance, the
The prosecutor’s articulated basis for these challenges divided potential jurors into
two classes: those whose conduct during voir dire would persuade him they might
have difficulty in accepting the translator’s rendition of Spanish-language testimony
and those potential jurors who gave no such reason for doubt. Each category would
include both Latinos and non-Latinos.
Id.
83. Id. at 369.
84. This is a curious argument. Although the prosecutor stated that he did not notice
how many Latinos had been called to the panel, nowhere does it say that he questioned all of
the potential jurors to determine which were bilingual. Because a showing that he had asked
all of the jurors whether they could be Spanish would help establish that he did not signal out
the Latino jurors, the fact that he did not say that during the colloquy with the trial court is
telling. It is clear that no Latinos served on the jury in the case. It is also clear that three of the
four jurors against whom the prosecutor exercised his peremptory challenges had Latino
surnames. See id. at 358. The reason for the peremptory challenge against Mikus is slightly
different. Mikus, whose first name was Lydia, was born in Puerto Rico. Debora A. Ramirez,
Excluded Voices: The Disenfranchisement of Ethnic Groups from Jury Service, 1993 WIS. L.
REV. 761, 773 (1993). She moved to the United States, married, and changed her surname. Id.
at 773–74.
85. Hernandez, 500 U.S. at 369–70.
86. Id. at 376 (Stevens, J., dissenting).
87. Id. at 379.
88. Id.
89. Id.
90. Id.
As is the practice in many jurisdictions, the jury could have been instructed that the
official translation alone is evidence; bilingual jurors could have been instructed to
bring to the attention of the judge any disagreements they might have with the
translation so that any disputes could be resolved by the court.
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judge could have given instructions that only the official testimony could be
considered as evidence, or he or she could have given the jurors limiting
instructions.91 Third, if the prosecutor’s concern were legitimate, he could
have challenged the jurors for cause.92
III. THE EQUAL PROTECTION ARGUMENT
A. The Honesty of “I Will Try”
The plurality opinion argues that the prosecutor in Hernandez used his
peremptory challenges to strike the Latino jurors, not because of their
bilingualism, but because of the way that they answered the prosecutor’s
questions during the voir dire.93 Thus, by the plurality’s logic, a juror who
spoke only English would also be excluded if the prosecutor believed that the
potential juror would not be able to accept the translation of the testimony.
First, it is important to note that the potential jurors would be better divided
into the categories of bilingual and monolingual. There are, to be sure, nonLatinos who are bilingual in English and Spanish. And not all Latinos living
in the United States speak Spanish, though the majority of Latinos do.94 In
the Kings County area, where the trial of Dionisio Hernandez took place,
ninety-six percent of Latinos spoke Spanish.95 What the plurality fails to
recognize is the fact that bilinguals cannot will themselves to disregard
language that they understand anymore than they can will themselves to
change their sex or race. Bilingualism, then, should be treated as an
immutable characteristic for purposes of equal protection analysis.96
Id. Justice Stevens also suggested that the court could arrange a situation where the Spanish
testimony is heard only by the translator, while the jury hears only the translation. Id. at 379
n.2. This could be done easily through the use of headphones or through closed-circuit
television.
91. Id.
92. Id.
93. Id. at 360–61; see also supra note 82.
94. See Brief for Petitioner at 19 n.3, Hernandez v. New York, 500 U.S. 352 (1991)
(No. 89-7645) (citing 1984 statistics putting the national percentage of Latinos who speak
Spanish at seventy-eight percent).
95. Id. at 10–11.
96. Alfredo Mirande, “Now that I Speak English, No Me Dejan Hablar [‘I’m Not
Allowed to Speak’]”: The Implications of Hernandez v. New York, 18 CHICANO-LATINO L.
REV. 115, 116 (1996) (arguing that because bilingualism is an immutable characteristic
because it is something over which a person has no control).
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There would be no question that a person who spoke only English could
have any trouble following the translator.97 Therefore, only bilinguals could
fit into the category of those whom the prosecutor thought might have
difficulty in accepting the official translator’s version of the testimony. As
Professor Ramirez has pointed out in his survey of psycholinguistics, no one
who understands a language can voluntarily “tune out” speech heard in that
language.98 Just as an English-speaking person would be unable to look at a
sentence written in English and refrain from reading it, or hear speech in
English but refrain from understanding it, so too are bilinguals incapable of
performing such mental feats in either of the languages with which they are
proficient.99 Bilinguals can control language output—that is, the language
that comes out of their mouths.100 However, they do not have control over
the mechanism that enables them to perceive language.101 Therefore, they
cannot ignore language that they understand.102 Or, as Professor Ramirez
puts it, “Unlike language production, the language perception process
operates automatically, unconsciously, and continuously; it cannot be totally
deactivated.”103
Although the potential jurors ultimately stated that they could accept the
authority of the official testimony, when first asked, they stated only that
they would try.104 It was on the basis of the first answer that the prosecutor
decided to use peremptory challenges to excuse these jurors,105 and it was on
the basis of the second answer that the prosecutor could not challenge them
for cause.106 However, the prosecutor’s fear could have been alleviated with
a simple instruction from the judge that only the translator’s version could be
97. This is true despite the logic applied by the plurality in Hernandez. See supra note
82.
98. Ramirez, supra note 84, at 777.
99. Id.
100. See FRANÇOIS GROSJEAN, LIFE WITH TWO LANGUAGES: AN INTRODUCTION TO
BILINGUALISM 232 (1982).
101. Ramirez, supra note 84, at 779.
102. Id.
103. Id.; see also Evelyn P. Altenberg & Helen Smith Cairns, The Effects of
Phonotactic Constraints and Lexical Processing in Bilingual and Monolingual Subjects, 22 J.
VERBAL LEARNING & VERBAL BEHAV. 174–78 (1983); Dennis Blair & Richard J. Harris, A
Test of Interlingual Interaction in Comprehension by Bilinguals, 10 J. PSYCHOLINGUISTIC RES.
457, 457–67 (1981); Arthur R. Jensen & William Rohwer, Jr., The Stroop Color-Word Test: A
Review, 25 ACTA PSYCHOLOGICA 36–93 (1966); Anne M. Treisman, Verbal Cues, Language,
and Meaning in Selective Attention, 77 AM. J. PSYCHOL. 206 (1964).
104. Hernandez v. New York, 500 U.S. 352, 356 (1991).
105. Id.
106. Hernandez I, 75 N.Y.2d at 363 (Kaye, J., dissenting).
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considered as evidence.107 While it would be difficult for bilingual jurors to
hear testimony in a language that they understand, and then not consider it in
deliberations, it would be no more difficult than other limiting instructions
given for many other evidentiary issues. Juries are constantly called upon to
perform “mental gymnastics,” which may well be impossible to perform.108
The potential jurors’ first answer of “I will try” is probably the same answer
that all jurors would give if asked ahead of time whether they could hear
evidence on the basis of conditional relevancy, and then disregard it if they
find that the condition had not been met.109 If we are going to accept the
effectiveness of limiting instructions in general, then there is no reason to
think that bilingual jurors cannot abide by a requirement that they consider
only the official translation as evidence.110
The “I will try” answer was also the only honest answer that a bilingual
juror could give. When bilinguals speak with one another, it is not
uncommon for them to switch languages, sometimes even in the middle of a
sentence.111 The result of a conversation conducted in more than one
language is the memory of the entire conversation, but not of the language in
which each piece of information was perceived.112 Although it is not
precisely known how short-term memory works for bilinguals, the evidence
107. Id. at 364; see also Brief for Petitioner at 7–8, Hernandez v. New York, 500 U.S.
352 (1991) (No. 89-7645); Hernandez v. New York, 500 U.S. 352, 379 (Stevens, J.,
dissenting).
108. See Bruton v. United States, 391 U.S. 123, 133 n.8 (1968).
109. Judge Learned Hand once commented on the practical effects of giving jurors
such limiting instructions in the context of joint trials for coconspirators:
There is no reason why the prosecution, if it chooses to indict several defendants
together, should not be confined to evidence admissible against all, and if real
injustice were done, the result would be undesirable. In effect, however, the rule
probably furthers, rather than impedes, the search for truth, and this perhaps excuses
the device which satisfies form while it violates substance; that is, the
recommendation to the jury of a mental gymnastic which is beyond, not only their
powers, but anybody’s else.
Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932).
110. I do not mean to suggest that we should not accept the effectiveness of limiting
instructions. Indeed, it is hard to imagine how we could ever complete trials without them.
What I am suggesting, however, is the fact that, just as we presume that jurors can follow
instructions about evidence, so too can we presume that bilingual jurors can follow
instructions about what testimony can be considered in deliberations. “I will try” is a
predictable, natural answer.
111. Edith Mägiste, The Competing Language Systems of the Multilingual: A
Developmental Study of Decoding and Encoding Processes. J. VERBAL LEARNING & VERBAL
BEHAV., 18: 79-89 (1979). This point is discussed at greater length infra Part IV.A.
112. Id. at 87.
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suggests that words perceived in both dominant languages are stored in the
same area of the brain, and subjects recalling the words do not know in
which language they first heard them.113 As long as the bilingual juror hears
both the Spanish testimony and the English translation, he or she would not
be able to recall in which language a particular piece of testimony was heard.
If the translation is accurate, then the nature of bilingualism will not make
much of a difference. If the translation is inaccurate, then the bilingual juror
could discretely bring them to the attention of the court.114 Thus, all honestanswering bilinguals would likely answer the question of their ability to
follow the official translation in the same way.115
The above points are understood not just by linguists, but by all
bilinguals. Professor Ramirez conducted an interview with Lydia Mikus, one
of the jurors against whom the prosecutor used his peremptory challenges.116
Ms. Mikus appeared to be at least intuitively aware of the nature of
bilingualism.117 When asked about her initial answer of “I will try” to the
prosecutor’s question, she explained herself in this way:
[Ignoring the Spanish is] difficult to do . . . with any language. It would be so
hard. You can’t totally turn off [the Spanish]. I could not do so fully. It’s a
difficult task. I don’t know if anyone could do it . . . . The problem . . . is
that if there were a discrepancy in the Spanish and English, I wouldn’t know
118
how to deal with it. It would be confusing.
We see that Ms. Mikus was acutely aware of the difficulty that she—and any
other bilingual—would have in disregarding the Spanish testimony. But
difficulty is not inability. It is hard to imagine why we cannot expect a
bilingual to perform this feet of “mental gymnastics,”119 while at the same
time expecting jurors to follow other, equally difficult, tasks related to other
evidentiary issues. Courts rely on presumptions about jurors’ ability to
follow evidentiary instructions. The difference in this case was the fact that
the potential jurors were asked these questions prior to their exposure to the
113. Id.
114. This point was made by Justice Kaye in her dissenting opinion in the New York
Court of Appeals. Hernandez I, 75 N.Y.2d at 364 (Kaye, J., dissenting); see also infra Parts
III.B, III.D.
115. Mirande, supra note 96, at 124.
116. Ramirez, supra note 84, at 780–81.
117. Id.
118. Id.
119. Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932).
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evidence, and their answers were simply honest, much like the answers that
jurors would give if asked ahead of time about other evidentiary questions.
B. The Protection of Batson
The plurality in Hernandez also observed that
We would face a quite different case if the prosecutor had justified his
peremptory challenges with the explanation that he did not want Spanishspeaking jurors. It may well be, for certain ethnic groups and in some
communities, that proficiency in a particular language, like skin color, should
120
be treated as a surrogate for race under an equal protection analysis.
This reasoning is faulty because it ignores the fact that the prosecutor’s
explanation for exercising his peremptory challenges to exclude the bilingual
jurors was tantamount to saying that he did not want Spanish-speaking
jurors.121 To be sure, the prosecutor’s explanation was literally “an
explanation based on something other than the race of the juror.”122
However, after subjecting the explanation to a little bit of scrutiny, the fear
that the bilingual jurors be unable to follow the translation of the testimony
and the concern that this will lead to an undue influence on the jury turns out
to be illegitimate.123 And once this illegitimate explanation is discarded, we
are left with nothing to rebut the defense’s prima facie case showing
purposeful discrimination. For that reason, race-neutral explanations based
on the language of the jurors should not be sufficient to defeat a Batson
challenge.
The exercise of peremptory challenges on the basis of language has a
disparate impact on Latinos. In Kings County, where Dionisio Hernandez
was tried, ninety-six percent of Latinos spoke Spanish.124 That means that in
a case where at least some of the testimony was to be given in Spanish, the
prosecutor could use peremptory challenges to excuse almost any Latino on
120. Hernandez v. New York, 500 U.S. 352, 371 (1991).
121. It is also interesting to note that the EEOC Guidelines on Discrimination Because
of National Origin includes “linguistic characteristics of a national origin group.” 29 C.F.R. §
1606.1 (1992).
122. Hernandez, 500 U.S. at 360.
123. See infra Part III.D.
124. See Brief for Petitioner at 7, Hernandez v. New York, 500 U.S. 253 (1991) (No.
89-7645); see also Hernandez I, 75 N.Y.2d 350, 362 (1990) (Kaye, J., dissenting); Hernandez,
500 U.S. 352, 379 (Stevens, J., dissenting).
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801
the venire.125 This provides the prosecutor with a virtual “free pass” to defeat
Batson challenges against peremptory strikes of Latino voters. All he or she
would have to do is point to some demeanor evidence, such as eye contact or
lack of eye contact, hesitancy in answering questions or answering questions
too fast.126 That leaves Latino defendants without access to the equal
protection claims recognized in Batson. This concern is very much a part of
Justice Marshall’s concurring opinion in Batson.127 There, he goes into great
detail about the ways in which prosecutors had become proficient at
excluding African American jurors, but doing so in a way that would not
violate the Equal Protection Clause.128
It is unrealistic to suppose that prosecutors would stop this practice
without at least attempting to get around the rule. Reviewing courts then
must be vigilant in protecting the right announced in Batson. If the right
recognized in Batson is going to have any effect for African Americans,
Latinos, or any other group that an attorney wants to exclude from the jury,
then appellate courts must use heightened scrutiny to evaluate the use of
peremptory challenges when a moving party is able to make a prima facie
case of purposeful discrimination. The only other alternatives would be to
allow parties to violate the Equal Protection Clause or to abolish peremptory
challenges all together.
Another problem with allowing peremptory challenges on the basis of
bilingualism is the paradox that it presents for Latino jurors. With the outcry
against illegal immigration that has gripped this country, especially in the
last few years, there is great pressure on Latinos to assimilate.129 An
important part of assimilation in the United States is learning English.130 To
be eligible to serve on a jury, a juror must be proficient in English.131
125. The dissent in the New York Court of Appeals notes that New York has 113
Spanish translators, who are required to interpret an average of 250 times per day. Hernandez
I, 75 N.Y.2d at 627.
126. See infra note 128; Perea supra note 20, at 12–15.
127. Batson, 476 U.S. at 103–04 (Marshall, J., concurring).
128. Id. Justice Marshall cites cases and statistics that show that African Americans
are overwhelmingly underrepresented on jurors, despite the Court's decision in Strauder. See
id. He also cites prosecutors’ manuals recommending that prosecutors strike African
Americans from juries whenever possible. Id. at 104; see also supra note 20.
Justice Marshall was not the only one who recognized this fact. “It appears . . . that the
practice of peremptorily eliminating blacks from petit juries in cases with black defendants
remains widespread, so much so that I agree that an opportunity to inquire should be afforded
when this occurs.” Batson, 476 U.S. at 101 (White, J., concurring).
129. Perea, supra note 20, at 51.
130. Id.
131. 28 U.S.C. § 1865(b)(3) (2000).
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However, once they attain proficiency in English and have knowledge of two
languages,132 Hernandez allows attorneys to use their bilingualism as a basis
for preventing them from serving on juries, so long as some of the testimony
to be given is in Spanish. This problem becomes more likely in districts that
have large Latino populations, as trials in those districts would be likely to
have Spanish-speaking witnesses.133
C. Unconscious Racism
The Hernandez Court said that a race-neutral explanation “means an
explanation based on something other than the race of the juror.”134 The
prosecutor’s concern that the bilingual jurors would not disregard the
Spanish-language testimony fits into that category.135 In accepting the
facially neutral quality of the prosecutor’s explanation, however, the Court
did not address a concern raised in Justice Kaye’s dissenting opinion in the
New York Court of Appeals136 and in Justice Marshall’s concurring opinion
in Batson.137 Both opinions raised the possibility that a party’s unconscious
racism could affect the way that he or she views the jurors, and that
conclusions drawn about minority jurors, such as sullenness or distance,
would not be drawn with white jurors displaying the same outward
characteristics.138 In Hernandez, this demeanor evidence was eye contact and
hesitancy to answer questions. A party with unconscious racial prejudice
could subconsciously look for this kind of demeanor evidence as an excuse
to use a peremptory challenge to discriminate on the basis of race.
The role that unconscious racism plays in legal studies has been
thoroughly explored by Professor Kang.139 Unconscious racism is the result
of the way that our brains develop schemas, which allow us to function
without getting overwhelmed by the numerous stimuli that our senses
132. “Mere knowledge of [a foreign] language cannot reasonably be regarded as
harmful. Heretofore it has been commonly looked upon as helpful and desirable.” Meyer v.
Nebraska, 262 U.S. 390, 400 (1923).
133. Perea, supra note 20, at 51.
134. Hernandez v. New York, 500 U.S. 253, 360 (1991).
135. Id.
136. Hernandez I, 75 N.Y.2d 350, 362 (1990) (Kaye, J., dissenting).
137. Batson v. Kentucky, 476 U.S. 79, 106 (1986) (Marshall, J., concurring).
138. Hernandez I, 75 N.Y.2d at 362; Batson, 476 U.S. at 106.
139. See Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489 (2005); see also
Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious
Racism, 39 STAN. L. REV. 317 (1987).
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803
constantly perceive.140 Schemas compartmentalize information that we
perceive, based on past experiences, and this allows us to draw conclusions
about the new stimuli.141 For example, when we go to restaurants, we know
to sit at the table and wait for the server. When a person approaches the table
wearing what appears to be a uniform and carrying a pad and pen, we know,
from past experience, that if we tell that person what we want to eat, he or
she will bring it to us. Schemas allow us to “automatically, efficiently, and
adaptively parse the raw data pushed to our senses.”142 But while schemas
help us make sense of the world around us and prevent us from being
bombarded by all of the stimuli in the environment, they can also operate in
negative ways. A brief survey of research in cognitive psychology shows that
this is sometimes the case with racial stereotypes.
For instance, in Professors Gilliam and Iyengar’s study on crime stories,
the subjects watched a fifteen-minute newscast describing a crime.143 The
mug shot of the suspect flashed on the screen for a period of five seconds for
some of the subjects, while the others saw no mug shot.144 For those who saw
a mug shot, half saw an African American suspect and the others saw a white
suspect.145 The subjects were then tested for their support of punitive
remedies against the suspect.146 Those who saw the African American
suspect were six percent more likely to support punitive remedies than the
group who saw no mug shot, and five percent more likely to support punitive
remedies than the group who saw the white suspect.147 We see then that
racial attitudes have a very real effect on the way that people make
judgments about what they see on the news, even if the people are not aware
of those attitudes.148
140. Kang, supra note 139, at 1498.
141. Id.
142. Id. at 1504.
143. Franklin D. Gilliam & Shanto Iyengar, Prime Suspects: The Influence of Local
Television News on the Viewing Public, 44 AM. J. POL. SCI. 560, 563 (2000).
144. Id. at 567.
145. Id. The pictures were identical in every respect except for the hue of the suspect’s
skin color. Id.
146. Id. at 563.
147. Id. at 568.
148. Prior to participating in the experiment, the subjects were asked questions about
African Americans and stereotypes. Id. at 565. For instance, they were asked if traits, such as
law-abiding and hard working, apply to African Americans. Id. Not surprisingly, the subjects
reported that they harbored no such prejudice. Id. at 566. “It is now common knowledge that
open expression of racial animus is unacceptable and a majority of White Americans support
the principle of racial equality while publicly rejecting negative stereotypes of minorities.” Id.
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Professors Correll, Park, and Judd also found unconscious racism in a
study designed to examine the thought process behind police officers who
are forced to make an immediate decision about the danger posed by a
potential suspect.149 In their experiment, the subjects played a video game
that presented African American and white characters who were either armed
or unarmed.150 The subjects were instructed to shoot only the armed
characters.151 The results showed that subjects shot armed African American
characters more quickly than they shot armed white characters, were quicker
to decide not to shoot unarmed white characters than they were African
American characters, and mistakenly shot unarmed African American
characters more often than unarmed white subjects.152 This study leads to the
unsettling conclusion that unconscious racial attitudes can lead to mistaken
split-second decisions, and that these mistaken decisions could have dire
consequences. In addition, these mistaken perceptions of African American
subjects were the same for both white and African American.153
By way of final example, consider the experiment done by Professors
Bertrand and Mullainathan.154 They tested the effect of racial prejudice
against African Americans in the context of employment applications.155
They did so by sending resumes in response to employment
advertisements.156 The resumes were identical in all but one way: some had
traditionally African American names (e.g., Lakisha Washington), while the
others had traditionally white names (e.g., Emily Walsh).157 They found that
the applicants with the “white” names were called back at a rate that was
149. Joshua Correll et al., The Police Officer’s Dilemma: Using Ethnicity to
Disambiguate Potentially Threatening Individuals, 83 J. PERSONALITY & SOC. PSYCHOL., 1314
(2002).
150. Id. at 1317.
151. Id.
152. Id. at 1325.
153. Id.; see also B. Keith Payne, Prejudice and Perception: The Role of Automatic
and Controlled Processes in Misperceiving a Weapon, 81 J. PERSONALITY & SOC. PSYCHOL.
181 (2001) (finding similar results); Charles M. Judd et al., Automatic Stereotypes vs.
Automatic Prejudice: Sorting Out the Possibilities in the [Payne, 2001] Weapon Paradigm,
40 J. EXPERIMENTAL SOC. PSYCHOL. 75 (2004) (finding that subjects were quicker to associate
African American faces with guns and sporting equipment than with a neutral object, such as
fruits and insects).
154. Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More
Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination,
94 AM. ECON. REV. 991 (2004).
155. Id.
156. Id. at 994–96.
157. Id. at 995.
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805
fifty percent higher than the applicants with the “African American”
names.158 They conducted another study, this time using high-quality and
average resumes.159 They found that more impressive resumes led to the
applicants with the “white-sounding” names being called back at a rate that
was significantly greater than the same high-quality resumes from the
applicants with the “African American-sounding” names, suggesting that the
employers did not notice the higher quality of the African American
applications because they simply did not read past the name.160 The subjects
were not aware that they were a part of the experiment; therefore, they did
not answer any self-reports about racial bias.161 However, it is difficult to
suppose that they all made conscious efforts to not call back the applicants
with the African American names. The effects of unconscious racism are felt
in the context of employment applications as well.
The danger of unconscious racism is that those who harbor this kind of
prejudice are unaware of it, and indeed sometimes deny having any prejudice
at all.162 Not only does this lead to discrimination against African Americans,
but also against other groups of traditionally marginalized citizens, including
women and Latinos. As the studies above show, this type of prejudice can
affect the way that we act in very real ways. In the context of a courtroom, it
could influence the way that the witnesses and defendants are viewed by the
jurors, lawyers, and even the judge. It can also affect the way that lawyers
view potential jurors during the voir dire, and this in turn could influence the
way that the lawyers exercise their peremptory challenges. The widespread
nature of unconscious racism, combined with the fact that many people do
not believe that they harbor any prejudices, can lead a lawyer to rebut the
prima facie case of a Batson challenge by offering whatever explanation
comes to mind, even if the lawyer believes in the sincerity of the explanation.
Any such explanation could easily qualify as “an explanation based on
something other than the race of the juror.”163 Therefore, in order for Batson
to continue to offer the protection that it announced, reviewing courts are
158. Id. at 998.
159. Id. at 1000.
160. Id. at 1001. See also Kang, supra note 139, for a more exhaustive list of
experiments designed to study unconscious racism.
161. Bertrand & Mullainathan, supra note 154, at 997.
162. For an easily conducted self-assessment of unconscious racism, take the Implicit
Association Test (IAT), which is available online at http://implicit.harvard.edu/implicit/demo
(last visited Jan. 16, 2011). Many subjects, including the author of this Note and everyone in
his Cognitive Psychology class, were surprised and troubled by the results of their tests.
163. Hernandez v. New York, 500 U.S. 352, 360 (1991).
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going to have to look at race-neutral explanations with the heightened
scrutiny that the Hernandez court failed to apply.
D. The Specter of Undue Influence on the Jurors
In the plurality opinion in Hernandez, Justice Kennedy cites an exchange
in United States v. Perez164 as an example that “illustrates the sort of
problems that may arise where a juror fails to accept the official translation
of foreign-language testimony.”165
Dorothy Kim (Juror No. 8): Your Honor, is it proper to ask the interpreter a
question? I'm uncertain about the word La Vado [sic]. You say that is a bar.
The Court: The Court cannot permit jurors to ask questions directly. If you
want to phrase your question to meDorothy Kim: I understood it to be a restroom. I could better believe they
would meet in a restroom rather than a public bar if he is undercover.
The Court: These are matters for you to consider. If you have any
misunderstanding of what the witness testified to, tell the Court now what
you didn't understand and we’ll place the—
Dorothy Kim: I understand the word La Vado [sic]—I thought it meant
restroom. She translates it as bar.
Ms. Ianziti: In the first place, the jurors are not to listen to the Spanish but to
the English. I am a certified court interpreter.
Dorothy Kim: You’re an idiot.
Upon further questioning, ‘the witness indicated that none of the
conversations in issue occurred in the restroom.’ The juror later explained
that she had said, ‘it’s an idiom’ rather than ‘you’re an idiot,’ but she was
166
nevertheless dismissed from the jury.
164.
165.
166.
658 F.2d 654 (9th Cir. 1981).
Hernandez, 500 U.S. at 360 n.3.
Id. at 360 (quoting Perez, 658 F.2d at 662–63).
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It is understandable how it would be undesirable for a trial to be interrupted
with exchanges like this. This problem, however, could be cleared up by
adopting a policy that required the bilingual jurors to write notes for requests
for clarification in the interpretation of testimony. Then, as in Perez, the
examining attorney could ask clarifying questions. Although the interpreter
in Perez turned out to be correct in the interpretation, it would be a mistake
to assume that the interpreter will always be correct. If a note to the judge
from a bilingual juror could cause testimony to be clarified, leading to a
proper understanding of the foreign-language testimony for the court and the
rest of the jurors, then the court should welcome that assistance. That is the
least it can do in cases where the defendant’s life, liberty, or property could
be at stake.167 Such high stakes require the implementation of
accommodations, especially when those accommodations can be
accomplished through minimally invasive means.
IV. THE PRACTICAL EFFECTS OF BILINGUAL JURORS ON THE TRIAL
A. The Effect of Interpreters
The dissent in Hernandez in the New York Court of Appeals makes the
following obvious, but easy-to-overlook observation about bilingual jurors: if
the interpreter does make a mistake in interpreting, would it not be in the
interests of justice to have that point noted?168 Since interpreters are working
in a time-pressured situation, there is the chance that they can make an error.
There is also the chance that they can make subtle changes in their
translation of the testimony that can have a significant effect on jurors’
opinion of the testimony.169 Even more alarming is the fact that many courts,
167. Perea, supra note 20, at 38–39; see also infra Part IV.A.
168. Hernandez I, 75 N.Y.2d at 363 (Kaye, J., dissenting); see also Perea, supra note
20, at 27–28.
169. The transcript of the oral argument of Hernandez offers this interesting example.
In posing a question to the attorney for Dionisio Hernandez, one of the Justices asked, “[I]f
the prosecutor thinks that some particular perspective [sic] juror will not abide by the
translation of the language and yet speaks the language, I think it’s quite remarkable to say
that there cannot be a peremptory challenge, may be even a challenge for cause.” Transcript of
Oral Argument at 2–3, Hernandez v. New York, 500 U.S. 352 (1991) (No. 89-7645). If we
assume that the Justice knows the difference between “perspective” and “prospective,” and
did not merely misspeak, we are left to conclude that the official transcript of the oral
argument contains an error. In this case, it is a harmless error, as everyone reading it, as well
as the attorney for Dionisio Hernandez, could decipher what was meant by the question. But
not all errors are so readily apparent. This is especially true in a situation where the only
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including those in the federal system, do not make a record of foreignlanguage testimony.170 This practice can result in unacceptable outcomes. In
the event that the interpreter does make an error, there is no record for the
appellate court to use in reviewing the decision.171 For defendants who are
convicted in trials that include foreign-language testimony, this could
preclude the right to meaningful appellate review.172
Court interpreters can have more of an impact on trials than is ordinarily
realized. Professor Berk-Seligson has documented some of these ways by
conducting experiments with mock juries.173 First, she has shown that an
interpreter’s decision about translating politeness can affect the way that both
monolinguals and bilinguals judge a witness’s testimony.174 For instance, an
interpreter may render a witness’s “Sí” as “Yes, sir,” or a witness’s “Sí,
señor,” as simply “Yes.”175 Canon 8 of the Code of Professional
Responsibility for Court Interpreters and Legal Translators states, “Court
interpreters and legal translators should convey all of the meaning of the
source language in the target language without adding to, leaving out or
modifying anything given the cultural, syntactic and lexical limits of the
target language.”176 However, the seemingly innocuous addition or deletion
of the word “sir” is not unheard of, especially given the rapid rate at which
interpreters must work.177 Professor Berk-Seligson’s study found that the
person in the courtroom who understands both Spanish and English is the interpreter. In that
case, the errors would go unnoticed. It would seem that bilingual jurors, who could pick up
those errors and relay them to the court, would be helpful in this context.
170. Some state courts make an audio recording of all testimony, including foreignlanguage testimony. However, this raises problems when courts must determine what standard
of error is to be applied to the translation. It is given that there will be some errors, so one
court applies the standard of “understandable, comprehensible, and intelligible,” State v.
Casipe, 686 P.2d 28, 32–33 (Haw. Ct. App. 1984), while another holds that the intelligibility
of the interpreter must result from his or her ineffectiveness or incompetence, People v.
Costales, 520 N.E.2d 421, 424 (Ill. App. Ct. 1982). However, intelligibility is not the same as
accuracy. See Perea, supra note 20, at 35–37 and accompanying notes.
171. Perea, supra note 20, at 37.
172. Id.
173. SUSAN BERK-SELIGSON, THE BILINGUAL COURTROOM 146–97 (1990).
174. Id. at 162–63.
175. In Professor Berk-Seligson’s study, the mock jurors all heard the same Spanish
testimony from the same witness. Id. at 155. The witness would answer the questions in the
“impolite” way. Id. Half of the subjects heard an interpreter who rendered an “impolite”
translation and half heard an interpreter who rendered a “polite” translation. Id. at 156. The
experiments discussed below were conducted in similar ways. Id. at 173, 180, 183.
176. CODE OF PROFESSIONAL RESPONSIBILITY FOR COURT INTERPRETERS AND LEGAL
TRANSLATORS, quoted in BERK-SELIGSON, supra note 173, at 258–59.
177. BERK-SELIGSON, supra note 173, at 151, 153.
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809
“polite” witnesses were judged by the bilingual jurors to be more competent
and intelligent than the “impolite witnesses.178 The monolingual jurors found
the “polite” witnesses to be more competent, intelligent, convincing, and
trustworthy than the “impolite” witnesses.179 Even though the substance of
the testimony was the same, the way in which the testimony was rendered
affected the jurors’ perception of the witness.
Professor Berk-Seligson found similar results when she tested for the
interpreter’s formality level. Formality refers to the extent to which the
interpreter translates in complete, formal sentences. For instance, if the
witness is asked his age, he could respond, “Viente años” (twenty years old).
An interpretation with a high formality level would be “I am twenty years
old.” The study to test the effects of formality presented some subjects with a
highly formal translation of the testimony, and others with an informal
translation.180 All mock jurors, and especially bilingual mock jurors, reported
that the witness with the “formal” testimony was more competent,
trustworthy, and intelligent than the witness with the “informal”
testimony.181 This was the case even though the witness’s testimony revealed
him to be a migrant worker, low on the socioeconomic scale, and thus less
likely to answer questions with any degree of formality.182
Although not as statistically significant as politeness or formality,
Professor Berk-Seligson also found that interpreters could affect jury
perception through the use of hedging and verb voice.183 Hedging refers to
the practice of including qualifications to narrative. Examples of hedging are
“well” and “you might say,” and they have the effect of weakening the force
of the narrative by making the speaker sound less certain.184 Verb voice
refers to whether the verb is in the active or the passive voice. The sentence
“the dog bit the boy” is active, while the sentence “the boy was bit by the
dog” is passive. Although hedging did not affect the bilingual mock jurors’
perception of the witness, the monolingual jurors viewed the witnesses who
did not hedge as more convincing, competent, intelligent, and trustworthy.185
Similarly, the use of the active or passive voice did not affect the bilingual
178.
179.
180.
Id. at 164.
Id. at 165.
The original Spanish testimony, heard by all of the subjects, was informal. Id. at
181.
182.
183.
184.
185.
Id. 173–76.
Id. at 175.
Id. at 179.
Id. at 178–80.
Id. at 181–83.
172.
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mock jurors’ perception of the witness; however, monolingual mock jurors’
who heard testimony that utilized active voice verbs viewed their witness as
more trustworthy and intelligent.186
The Berk-Seligson studies are important because they show just what
type of influence interpreters can have on jurors. Interpreters must work
quickly so as not to disrupt the flow of the questioning and testimony.187 The
pressure that this creates makes it difficult for even the most experienced
interpreter to adhere to the Canon 8 requirement that the translation not add,
leave out, or modify anything in the original. Furthermore, politeness,
formality, hedging, and verb voice are the kinds of things that are readily
apparent to linguists, but not to ordinary people. It is possible that
interpreters do not even notice these linguistic conventions, especially when
working under the rapid conditions required during a trial. This is not to say
that there is anything fundamentally wrong with the way that interpreters
work in courtrooms. Indeed, the linguistic factors in Professor BerkSelingson’s study likely cannot be controlled for. However, it is important to
recognize the effect that interpreters’ unconscious choices can have on the
proceedings. The different effects that the choices of the interpreters had on
the jurors were different for bilingual and monolingual jurors, but they were
both affected nonetheless.
B. The Rashomon Effect188
“Rashomon”189 is a 1950 film directed by Akira Kurosawa. The film
deals with the rape of a woman and the murder of her husband. A bandit is
accused of the murder, and at his trial, we hear the testimony of the bandit,
the woman, her dead husband (through a spiritual medium), and a
woodcutter who happened to be in the forest at the time of the events. The
testimony of each witness is mutually contradictory and self-serving, as each
gives his or her version of the events in a way that does not absolve the
186. Id. at 184–86.
187. Id. at 150–51.
188. The term “Rashomon Effect” is used across a variety of disciplines. It first
appeared in Karl C. Heider, The Rashomon Effect: When Ethnographers Disagree, 90 AM.
ANTHROPOLOGIST 73, 73–74 (1988). Heider attempts to explain how different ethnographers
studying the same cultures can come to fundamentally opposite conclusions about those
cultures. Among the reasons to explain such differences, Heider argues, are the biases and
values brought by the observers. He argues that differences between ethnographers may tell us
more about the ethnographers than about the cultures themselves.
189.
(RKO Radio Pictures 1950).
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811
witness of guilt, but allows him or her to appear respectable in the eyes of the
audience.190
The Rashomon Effect has come to refer to any instance where people
perceive the same phenomenon and come away with different ideas and
memories about what happened.191 A seminal experiment by Professors
Hastorf and Cantril illustrates this point.192 In their experiment, they showed
the video of that year’s Dartmouth-Princeton football game.193 The game was
well known at the time, both for the heated rivalry between the schools and
the especially rough and sometimes dirty play in the game.194 The subjects of
the experiment were undergraduates from Dartmouth and Princeton.195 They
were shown a film of the game and given a score sheet to mark all of the
penalties committed by each side.196 They were also asked to rate the severity
of each penalty, as well as to judge which side was responsible for the game
getting out of hand.197 The results showed that the subjects were more likely
to find that the other school’s team committed more penalties, that their
penalties were more severe, and that the other team was responsible for the
190. For instance, in the bandit’s version of the events, he tricked the husband and
planned to rape his wife. However, after seeing her husband outsmarted, she allowed herself
to be “seduced” by the bandit. After the seduction, and at the behest of the woman, the bandit
releases the husband in order to have a duel, which the bandit claims he won cleanly.
Although still guilty of the husband’s murder, the bandit portrays himself as a man of honor.
The versions of the story told by the wife, the dead husband, and the woodcutter are similarly
self-serving.
191. In addition to the Rashomon Effect being used in the field of anthropology (see
supra note 188), it is also used to describe how people with different interests view
environmental resources differently. See ALLAN MAZUR, A HAZARDOUS INQUIRY: THE
RASHOMON EFFECT AT LOVE CANAL 6–7 (1998).
A similar idea underlies Thomas Kuhn’s influential work in the philosophy of science:
“What a man sees depends both upon what he looks at and also upon what his previous visualconceptual experience has taught him to see.” THOMAS S. KUHN, THE STRUCTURE OF
SCIENTIFIC REVOLUTIONS 130 (3d ed. 1970).
192. Albert H. Hastorf & Hadley Cantril, They Saw a Game: A Case Study, 49 J.
ABNORMAL & SOC. PSYCHOL. 129–34 (1954).
193. Id. at 130.
194. It is important to note that both the game and the experiment took place in 1951.
Although the local newspapers carried a number of stories relating to the game, the subjects
who were not at the game would not have had the benefit of seeing any parts of it in the way
that we could watch games and their highlights today.
195. Id.
196. Id.
197. Id.
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game getting out of hand.198 In summing up the conclusions of the study, the
experimenters write:
In brief, the data here indicate that there is no such “thing” as a “game”
existing “out there” in its own right which people merely “observe.” The
“game” “exists” for a person and is experienced by him only in so far as
certain happenings have significances in terms of his purpose. Out of all
occurrences going on in the environment, a person selects those that have
199
some significance for him from his own egocentric position.
The idea of selective perception helps shed light on jurors’ experience
and why the explanation given by the prosecutor in Hernandez was
illegitimate. In the Hastorf and Cantril study, each subject’s idea of the
“game” was the product of what the subject observed on the field filtered
through everything in the subject’s consciousness, including preconceptions,
interests, prejudices, and values. The “game” in the memory of one subject
was similar or different to that in the memory of another subject only insofar
as the subjects’ consciousnesses were similar or different. Similarly, the
accounts of the rape and murder in “Rashomon” differ because of the
contents of each of the witnesses’ consciousness.
No one is unlike the subjects in the Hastorf and Cantril study or the
characters in “Rashomon.” We all experience stimuli in a way that combines
what we perceive with the contents of our consciousnesses. Jurors too are
affected in the same ways. To the extent that these effects are readily
apparent, the juror would likely be excused, either for cause or with a
peremptory challenge.200 But these effects are not always obvious, and
although the jurors are charged with deciding the case only on the evidence
before them, there is no way of assuring that preconceptions do not come in.
In addition to preconceptions, jurors have different attention spans and
different ideas of what is important and what should be remembered. Jurors
also can have different ways of assessing a witness’ credibility. These
differences can result from any number of reasons, from experiences that a
juror has had to personal beliefs to emphasis on certain personality traits,
such as eye contact or sweating. These observations lead to the conclusion
that, when a witness gives testimony, what we end up with is not one idea of
198. Id.
199. Id. at 133.
200. Such would likely be the case if one of the Dartmouth players were on trial for
aggravated assault as a result of a play during the game. The lawyer for the defense would
likely excuse any potential jurors with Princeton affiliations.
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813
“the testimony,” but rather many slightly different ideas and memories of the
testimony. That is inevitable, and that idea is implied in the requirement that
the jury be drawn from a “fair cross section” of the community.201
With these considerations in mind, we see that the prosecutor’s fear in
Hernandez that the bilingual jurors would follow the Spanish testimony is
unreasonable. First, it appears that all of the jurors will come away from the
trial with at least slightly different versions of the testimony anyway. Second,
the bilingual jurors would be instructed that only the translation could be
considered as testimony. Although the bilingual jurors will inevitably listen
to both versions of the testimony,202 the court presumes that the jurors will be
able to comply with evidentiary instructions.203 Third, because many of the
Latinos living in the United States can speak both English and Spanish, a
great number of Latinos could be affected by peremptory challenges on the
basis of language.204 That leaves us with a situation where the only reason to
peremptorily challenge bilingual jurors is the fact that they speak Spanish.
Although Justice Kennedy, writing for the plurality in Hernandez, stated that
it would be a different case had the prosecutor said that he had challenged
the potential jurors because he didn’t want Spanish-speaking jurors,205 after
closer examination, the prosecutor’s race-neutral explanation does not
withstand scrutiny, and we are left with that “different case.” The fact that
the Court failed to recognize this “different case” means that the Court
should, in the future, more closely scrutinize the race-neutral explanations
offered after a moving party makes a prima facie case for purposeful
discrimination in the use of peremptory challenges. Otherwise, the protection
afforded in Batson becomes “vain and illusory” indeed.206
C. Juror (Mis)Understanding
The law must presume that the jury understands instructions given
during a trial.207 This presumption exists in the face of the difficulty posed by
“mental gymnastics” required of the jury at times throughout a trial.208 It is
not surprising, then, that when social scientists study the effectiveness of jury
201. See Taylor v. Louisiana, 419 U.S. 522, 537 (1975) (holding that a law allowing
women to serve on juries only if they request to serve is a violation of the Sixth Amendment).
202. See supra Part IV.A.
203. See supra note 110.
204. See supra note 94.
205. Hernandez v. New York, 500 U.S. 352, 371 (1991).
206. Norris v. Alabama, 294 U.S. 587, 598 (1935).
207. Weeks v. Angelone, 528 U.S. 225, 234 (2000).
208. Nash v. U.S., 54 F.2d 1006, 1007 (1932).
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instructions on mock juries, we see that oftentimes the jurors do not
understand the instructions.209 For instance, one study by Professors
Reifman, Gusick, and Ellsworth shows that jurors instructed on the law score
roughly fifty percent on comprehension tests of their level of legal
understanding of the subject of the instructions, which is often the same
score received by uninstructed jurors.210 Jurors are routinely instructed on
such topics as intent, the use of a prior conviction to impeach a defendant,
and different burdens of proof, topics that confuse and perplex even the
brightest law students. Then, based on these instructions, the jurors are asked
to make a decision that could affect the life, liberty, or property of another
person. This decision is required despite the fact that roughly half of the
jurors would fail a comprehension test on the subject.
That is not to say that jury instructions are unimportant. Indeed, it is on
the basis of erroneous jury instructions that convictions are often overturned.
In addition, this does not suggest that the courts are not concerned with
jurors’ lack of comprehension of instructions. There have been many studies
exploring ways of making jury instructions more easily accessible to
jurors.211 What it does suggest, however, is the fact that jurors are likely not
to get the same idea from the happenings in the court as the judges and
lawyers intend for them to get. Jurors will understand, and misunderstand,
things differently. This suggests that there is no way to control what the jury
perceives. Thus, the jurors in Hernandez did not all come away from the trial
with the same memories. No jurors from any trial would be able to do that.
209. Neil Brewer et al., Improving Comprehension of Jury Instructions with AudioVisual Presentation, 18 APPLIED COGNITIVE PSYCHOL. 765, 765–66 (2004); see also David U.
Strawn & Raymond W. Buchanan, Jury Confusion: A Threat to Justice. 59 JUDICATURE 478,
480 (1976) (finding that jurors in a criminal case had the same comprehension about the legal
concepts, regardless of whether they received instructions); Amiram Elwork et al., Juridic
Decisions: In Ignorance of the Law or in Spite of It?, 1 L. & HUMAN BEHAV. 163, 163 (1977)
(finding the same result in a civil case).
210. Alan Reifman et al., Real Jurors’ Understanding of the Law in Real Cases, 16 L.
& HUMAN BEHAV. 539, 550 (1992).
211. See Rachel K. Cush & Jane Goodman Delahunty, The Influence of Limiting
Instructions on Processing and Judgments of Emotionally Evocative Evidence, 13
PSYCHIATRY, PSYCHOL. & L., 110, 110 (2006) (suggesting that limiting instructions are more
effective if given before evocative evidence than if given after); Brewer et al., supra note 209,
at 765–66 (suggesting that instructions given with audio-visual aids are more likely to be
comprehended by jurors); Carolyn Semmler & Neil Brewer, Using a Flow Chart to Improve
Comprehension of Jury Instructions, 9 PSYCHIATRY, PSYCHOL. & L., 262, 262 (2002)
(suggesting that jury instructions given with the aid of a flow chart improve juror
comprehension); Peter W. English & Bruce D. Sales, A Ceiling or Consistency Effect for the
Comprehension of Jury Instructions, 3 PSYCHOL., PUB. POL’Y & L., 381, 381 (1997).
2010]
RETHINKING HERNANDEZ V. NEW YORK
815
The inclusion of bilingual jurors, then, who could not help but hear both the
Spanish testimony and the English translation, but whom the law would
presume could follow instructions only to consider the English, would not
have had the impact on the proceedings that the prosecutor feared. The
prosecutor’s reason for striking the jurors might have been sincere, but it was
not legitimate, and it should have been deemed insufficient to rebut the
defendant’s prima facie case for racial discrimination.
V. CONCLUSION
The Supreme Court has held that the Equal Protection Clause prevents
parties from exercising their peremptory challenges in a racially
discriminatory way.212 However, as a result of the ease with which parties
can offer race-neutral explanations in response to prima facie cases of racial
discrimination in the use of peremptory challenges, as well as unconscious
racism, there needs to be a reallocation of the burden of proof and more
rigorous review for Batson challenges. Otherwise, we are left with the choice
of allowing lawyers to use peremptory challenges in a racially discriminatory
way, or of eliminating peremptory challenges altogether.213 If we are going
to preserve the right to peremptory challenges, which have been a part of the
American legal system since colonial times, and still abide by the decision in
Batson, reviewing courts must exercise a heightened scrutiny for Batson
claims.
The need for a new approach to Batson challenges is illustrated in the
Supreme Court’s decision in Hernandez. There, the prosecutor’s explanation
for using peremptory challenges to excuse bilingual jurors was race neutral
on its face. However, after examination, the prosecutor’s fear that the
bilingual jurors would not abide by the official translation of the testimony
was not a legitimate concern. Since the prosecutor’s reason for challenging
the jurors was not a valid reason at all, the only real basis for challenging the
jurors was the fact that they spoke Spanish, a fact that is inextricably bound
to their race. The decision in Hernandez opens the door to the use of
peremptory challenges to exclude most Hispanic jurors214 whenever there
will be Spanish-speaking testimony. If we are going to preserve the tradition
of peremptory challenges and allow Batson to apply to Latinos, then
212.
213.
214.
Batson v. Kentucky, 476 U.S. 79, 97–98 (1986).
See id. at 103 (Marshall, J., concurring); supra note 2.
See supra note 94.
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reviewing courts must be vigilant against parties who would strike jurors on
the basis of their bilingualism.