Below you will find six motions we urge all defenders to file in support of Batson objections made at trial. Motions marked essential must be filed in order to effectively litigate and preserve Batson motions made at trial. Discretionary motions are encouraged and helpful, but lower priority. Click the links to see the full motions. If you have questions, or would like copies of these motions as Word documents, contact Elizabeth Hambourger, elizabeth@cdpl.org.
1. Defendant’s Motion for Complete Recordation of All Pretrial and Trial Proceedings — Essential
The judge must grant this motion if filed, so it is an easy motion to win! Having all proceedings recorded, including jury selection, is necessary in order for Batson objections to be fully litigated on appeal. In fact, the appellate courts have found it impossible to reach Batson issues on their merits without a transcript of jury selection.
2. Defendant’s Motion to Distribute Juror Questionnaire and to Note Race and Gender of Every Potential Juror Examined in this Case — Essential
It is imperative that a juror’s race and gender is recorded in order for Batson objections to be fully addressed on appeal. The cases cited in the motion explain that the jurors self-identified race and gender is the best source of their race and gender. We encourage you to request that the Court distribute some version of the questionnaire in “Exhibit A” because having these questionnaires as part of the record on appeal is helpful for Batson litigation, especially when it comes to comparative juror analysis. However, if the Court is reluctant to distribute the long-form questionnaire, ask that “Exhibit B” be distributed instead.
3. Defendant’s Motion to Prohibit Impermissibly-Motivated Peremptory Strikes and for the Court to Take Consider Historical Evidence of Jury Discrimination — Essential
In State v. Hobbs, 374 N.C. 345 (2020), the NC Supreme Court held that the history of peremptory strikes in a jurisdiction is relevant to the question of whether jury discrimination has occurred in a particular case. This motion is your opportunity to present that history to the court. The sample motion includes statewide data showing that, for decades, North Carolina prosecutors have consistently struck Black jurors at much higher rates than white jurors. For data specific to your jurisdiction, please contact the Center for Death Penalty Litigation.
This motion also lays out all of the relevant Batson law that the court should consider when ruling on any Batson objections. This motion helps the attorney become familiar with Batson law, educates the Court and prosecutor, and puts the prosecutor on notice that the attorney intends to make proper Batson objections, which may consciously or subconsciously dissuade the prosecutor from making disproportionate strikes based on race and gender, thereby leading to a more diverse jury. Filing this motion prior to trial also takes out the potential uncomfortableness of making the objection. Batson objections can be uncomfortable, but making this motion a regular part of your practice will make Batson objections more routine, and perhaps more comfortable for all involved.
4. Defendant’s Motion for Discovery of Information Pertaining to Batson Litigation — Discretionary
This motion seeks to identify any training the prosecution has attended related to Batson, as well as if the prosecutor has ever been found to have struck a juror based on race or gender during a Batson hearing. This information, as explained in the motion, is relevant for the Court’s Batson analysis, so you should seek it ahead of time as part of discovery.
5. Defendant’s Motion Re Strike Procedures — Discretionary
This motion asks the Court to conduct strikes and any Batson colloquy outside the presence of potential jurors so that, in the event of a successful Batson objection, the improperly struck venire member may be seated on the jury.
6. Defendant’s Motion to Preserve All Notes, Questionnaires and Other Documents from Jury Selection — Discretionary
While discretionary, we highly encourage the filing of this motion. Prosecutor’s notes regarding jury selection have led to helpful findings of Batson violations and reversals of convictions (see discussion in Motion). As a matter of strategy, it is suggested that this motion is filed in Court immediately after jury selection ends.
