Hijack time!
Batson v. Kentucky is the SC case that forbids prosecutors (or, for that matter, defense lawyers) from using even a premptory challenge to excuse a juror based on the juror’s race. There is a widely held belief amongst members of the bar that blacks tend to be better jurors for the defense than whites, all things being equal, and it was not uncommon for prosecutors to use their premptory challenges to exclude them. Batson said you can’t do this, and it mandated a procedure whereby the defense lawyer could make a “Batson challenge” to a strike or set of strikes. If the trial judge found a prima facie case that the strikes were racially based, the burden would then shift to the prosecution to provide a “race-neutral” explanation for the strike, the credibility of which the trial court would then judge and either accept or reject. IN THEORY, this was supposed to prevent race-conscious strikes. In practice, it merely foreclosed effective appeals based on the racial composition of juries. The prosecution would get challenged after striking the only three black veniremen; the defense would point out that he’d struck the only three blacks; the prosecution would come up with all sorts of alternative reasons… too old, too young, too educated, not educated enough, too well dressed, too poorly dressed, not paying enough attention, giving me a weird vibe. Now, if a given prosecutor always struck younger people, I could live with it… but from trial to trial, the reasons always changed to target the ones being struck. They were, in my possibly biased view, thinly-veiled rationalizations for the exact kind of strikes that Batson was supposed to stop. But the judge always dutifully said, “I find the prosecution’s reasons credible,” and that was that. I am willing to bet that in the first five years following Batson, you won’t find half a dozen cases in Virginia in which the judge upheld a Batson challenge at trial - and yet the racial composition of juries did not change significantly. Batson was a great idea, very poorly implemented.
Consensual encounters: these are a type of encounter between police and citizens that do not implicate the Fourth Amendment’s prohibitions against unreasonable search and seizure. The classic case is an officer walking up to a person on the street and beginning to question them. He may do this without probable cause or even reasonable suspicion: as long as the person is free to disregard the officer’s questions and go about his business, no violation of the Constitution has occurred.
Obviously, every case in which the state doesn’t have probable cause or reasonable suspicion is one they wish to characterize as consensual.
The problems arise when an initial seizure is transformed into a consensual encounter, and arise most often in the course of a traffic stop. When the officer observes a traffic infraction, and initiates a traffic stop, he is generally only empowered to issue a summons for the infraction. A tactic often employed, however, is for the officer to issue the ticket, tell the motorist he’s free to go, and then in the next breath ask him if he has any drugs or contranband in the car, and if he’d consent to a search. “You don’t have anything back there I should know about, do you?” and “Then you don’t mind if I have a look?” are typical phrases heard at this stage.
If we review this in a courtroom, the Commonwealth will innocently claim that the driver was told he was free to go – that the encounter has now transformed itself from a legal seizure into an equally legal consensual encounter. This doesn’t pass the smell test, since I’m sure that (a) any reasonable citizen doesn’t feel free to leave after having been pulled over, and still having the patrol car behin him with lights flashing, and (b) if a driver DID try to leave without further conversation, the police would likely immediately pull him over again.
The way in which initial valid stops magically become consensual encounters is an area of the law that needs improvement. The Commonwealth can take the same set of circumstances and point to suspicious behavior or even a violation of the law, or claim that the driver was free to leave all along – whatever suits their purpose.