Tuesday, December 11, 2012

Sixth Circuit continues to define the zone of timeliness for Batson challenges

Batson challenges must be timely, but the Supreme Court has never said how timely they must be, and the circuits have devised different tests.  The underlying concern is to force attorneys to make challenges before it becomes too late to remedy the situation without throwing out the entire trial.  Today in United States v. Russ, the Sixth Circuit further narrowed its test.  Previously, the Sixth has held that a Batson objection made after the venire was dismissed and the jury was empaneled was untimely.  In Russ, the Court held that objecting within a minute of a juror being excused was timely even if the juror has already left the courtroom.  The Sixth left open the question of whether an objection made more than a minute after the juror was excused, but before the venire was dismissed, would be timely.  Of course, it is always safter to do it sooner rather than later.

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