Granting Prosecutors Constitutional Rights to Combat Discrimination

Prosecutors have a significant but unrecognized constitutional role in our criminal justice system to prevent juries from discriminating based upon the race or gender of the victim.The prosecutorial role to "do justice" includes the crucial responsibility to provide true equal protection of the law, yet prosecutors lack the constitutional tools they need for the job.This article argues that defendants' constitutional procedural rights to root out unlawful jury discrimination should also be made available to prosecutors.From the acquittal of the police officers who beat up Rodney King on videotape to acquittals in countless rape cases with "imperfect" victims, prosecutors often lose battles against discriminatory acquittal because they lack any constitutional weapons for the fight.While the Supreme Court has created several different procedural remedies to prevent jury discrimination against defendants, the Court has never given prosecutors the equivalent constitutional language to enforce their own equal protection role.Specifically, prosecutors should share the defendant's constitutional right to voir dire jurors about their potential prejudices.Voir dire on juror bias is an imperfect but crucial procedural protection that has received very little scholarly attention.Currently, the Supreme Court allows defendants a very narrow right to voir dire about racism only when race will clearly be at issue in the case.This article concludes that both prosecutors and defendants should have a constitutional right to root out unlawful discrimination during jury selection through voir dire, and that right should apply in every case.