While the Supreme Court outlawed discrimination in jury selection over 40 years ago, both empirical studies and candid interviews show that lawyers routinely rely on characteristics such as race, gender, and religion in striking prospective jurors. In large part, this practice continues because, when challenged, attorneys proffer non-verbal factors such as facial expressions, inattentiveness, eye contact (or lack thereof), or even laughing or coughing to justify their peremptory strikes. Without a way to assess the validity of these reasons, the trial judge and then the appellate court on review, have little ability to enforce the anti-discrimination prohibition set forth in Batson v. Kentucky. To give teeth to Batson's protection against discrimination in jury selection, both trial judges and appellate courts should use videotapes of voir dire proceedings to assess the credibility of attorneys proffering neutral reasons for striking jurors, particularly when those neutral reasons are based on non-verbal factors that cannot be assessed from a written transcript. Although many appellate courts have been reluctant to rely on "videorecords" for fear of intruding on the province of the fact finder, the Batson inquiry is unique enough and important enough to warrant a departure from reliance solely on a cold, written record.
Focus on Batson: Let the Cameras Roll, 74 BROOK. L. REV. 95