Lies, Damn Lies, and <em>Batson</em> Challenges: The Right to Use Statistical Evidence to Prove Racial Bias

This Article provides two principal contributions to the study of wrongful convictions. First, it fills a gap in the literature by clarifying the scope of a capital defendant’s constitutional right to use statistics when attacking a wrongful conviction caused by racial bias in jury selection. In doing so, the Article not only examines the content of the Court’s jurisprudence but it also explores the historical “arc” toward greater evidentiary protections. This arc has been guided primarily by the realization that prior narrower solutions have been ineffective at combating racially-motivated peremptory strikes.

The Article will also place modern statistical evidence in its proper place on that arc by discussing the relevance and unique value of statistics in illuminating patterns and bias.1 Second, it examines the comparative merits of conferring these wrongful conviction protections through statute or confirming them through constitutional litigation. In light of the severe backlash against North Carolina’s statute, this Article advocates the, perhaps more lasting and less politically dependent, approach of constitutional litigation.