Volume 89, Number 3

June 2014

Batson versus Strickland: Evaluating Ineffective Assistance of Counsel Claims Resulting from the Failure to Object to Race-Based Preemptory Challenges

Ashley C. Harrington

This Note evaluates the convergence of the standards articulated in Batson v. Kentucky and those of Strickland v. Washington. Specifically, how can a defendant demonstrate actual prejudice as a result of defense counsel’s failure to challenge the prosecutor’s discriminatory use of peremptory strikes? Lower courts have differed over whether the test should be outcome-based—a demonstration of actual prejudice in the outcome or verdict of the trial—or composition-based—a showing that the result of the jury selection process would have been different. I argue that the latter test is preferable to the former for several reasons. First, the composition-based test will ensure fuller protection of the rights contemplated in Batson and Strickland. Second, the necessary evaluation under the outcome-based test would dramatically shift the Supreme Court’s current colorblind approach in equal protection jurisprudence. Rather than shifting the current equal protection doctrine, the composition-based test allows for incorporation of the doctrine through the use of the diversity rationale. Third, a properly administered outcome-based test would require the exploration of the impact of race and background on the relevant evidence and on perceptions of the criminal justice system, including its principal setting (the courtroom) and primary actors, as contrasted with the much more concrete—if not necessarily simpler—task of determining only whether the composition of the jury itself would have differed.