Jury Selection Basics and Challenging Discrimination
Criminal cases in California are made up of 12 jurors from the community. There is usually at least one “”alternate” juror selected as well, in case one of the primary jurors is excused for some reason during the trial. During the selection process, the defense and prosecution are allowed to question members of the jury “panel” (also called a “venire”), to determine possible biases and explore areas that may show that a possible juror may be fit or unfit to serve in a given case.
A criminal defendant equal protection and the right to a representative jury. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 16). After questioning by both sides, a lawyer for either side can ask the judge to excuse a possible juror “for cause”, meaning that there is a demonstrated reason as to why the possible juror would be biased or otherwise unfit to serve in the particular case. The defense lawyer for the defendant, and the prosecution, are also given a certain amount of “peremptory challenges” to members of the jury pool, that they can dismiss due to perceived bias, unfitness, and a variety of other reasons.
Peremptory challenges are “designed to be used `for any reason, or no reason at all'” (People v. Scott (2015) 61 Cal.4th 363, 387 (Scott)), they “`may not be used to exclude prospective jurors based on group membership such as race or gender.'” (People v. Baker (2021) 10 Cal.5th 1044, 1071 (Baker), quoting People v. Armstrong (2019) 6 Cal.5th 735, 765 (Armstrong); see Batson v. Kentucky (1986) 476 U.S.79, 97; People v. Wheeler (1978) 22 Cal.3d 258, 276.) “Such use of peremptory challenges violates both a defendant’s right to a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution, and his right to equal protection under the Fourteenth Amendment to the United States Constitution.” (Armstrong, at 765-766; People v. Parker (2017) 2 Cal.5th 1184, 1211 (Parker).)
To challenge the improper removal of jurors for an unlawful discriminatory reason, an attorney for the opposing side will object and ask the Court to conduct a review, dubbed a “Batson/Wheeler” challenge. Batson, supra, 476 U.S. at 80; Wheeler, supra, 22 Cal.3d 258.
To establish a prima facie case of a Batson violation, the moving party must point to sufficient facts and circumstances to “raise an inference” that the prosecutor exercised peremptory challenges to exclude prospective jurors on an impermissible basis. (Batson, supra, 476 U.S. at p. 96.) This is a “low threshold.” (People v. Scott (2015) 61 Cal.4th 363, 384.) An inference is simply “a logical conclusion based on a set of facts.” (People v. Lancaster (2007) 41 Cal.4th 50, 74.)
“[A] `pattern’ of strikes” against a particular group may “give rise to an inference of discrimination.” (Batson, supra, 476 U.S. at 97.) The moving party “may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group.” (People v. Bell (2007) 40 Cal.4th 582, 597 (Bell), disapproved on another ground in People v. Sánchez (2016) 63 Cal.4th 665, 686, fn. 13.) At the time of the defense’s motion, the prosecutor had eliminated two-thirds of the Black women — six out of nine — seated in the box and had used half of his peremptories — six out of twelve — to strike Black women.
An elimination rate of two-thirds “is often sufficient on its own to make a prima facie case at Step One.” (Shirley v. Yates (9th Cir. 2015) 807 F.3d 1090, 1101 [defendant raised an inference of discrimination “more than sufficient to meet his `minimal’ burden” where two-thirds of the Black venirepersons not removed for cause were struck by the prosecutor].) And it is higher than rates that courts have found sufficient to support an inference of discrimination. (See, e.g., Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073, 1078 (Fernandez) [57 percent, noting that “[i]n a number of other cases, with less striking disparities, we have assumed the existence of a prima facie case”]; Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 812 (Turner) [56 percent], overruled on other grounds in Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 685 (en banc).)
The prosecutor’s use of 50 percent of his strikes against Black women is likewise in the range that supports a prima facie case. (See, e.g., Price v. Cain (5th Cir. 2009) 560 F.3d 284, 287 [defendant carried his “light burden” where prosecutor used six of twelve peremptory challenges to strike Black prospective jurors, defendant was Black, and the resulting jury was all White]; Fernandez, supra, 286 F.3d at p. 1078 [29 percent strike rate with 57 percent elimination rate was “enough,” “standing alone, . . . to raise an inference of racial discrimination”].) And it is significantly higher than rates that have found insufficient to raise an inference of discrimination in similar cases. (See, e.g., Battle, supra, 11 Cal.5th at p. 775 [18 percent]; People v. Clark (2011) 52 Cal.4th 856, 904-905 [20 percent]; People v. Welch (1999) 20 Cal.4th 701, 745 [27 percent].) For instance, in People v. Rhoades (2019) 8 Cal.5th 393 (Rhoades), the Court found no prima facie case where the prosecutor used four out of eight strikes against Black women. But the defendant in Rhoades was White, and the court said the record disclosed “readily apparent, race-neutral grounds” for the prosecutor’s challenges. (Id. at 430.)
Once a prima facie case has been made of discrimination, the party challenged must present argument that the exclusion of certain jurors was on the basis of non-biased, systematic exclusion of a certain group. Batson, supra, 476 U.S.at 97; Wheeler, supra, 22 Cal.3d at 281. It will then be up to the judge to determine if “purposeful discrimination” has been demonstrated. Snyder v. Lousiana (2008) 552 US 472. The Court must make a “sincere and reasoned inquiry” regarding the justifications made for the exclusion of the particular group of jurors, and must assess the genuineness of those justification. People v. Reynoso (2003) 31 Cal.4th 903, 924.
If the judge does not accept the given reason that the attorney challenged gives as being a “neutral” reason for dismissing a given juror, the remedy is to excuse all jurors and begin again with an entirely new panel. Wheeler, supra, 22 Cal.3d at 283. However, the lawyer who was successful in their challenge could also agree to alternative remedies, such as reinstating previous excused jurors, or to be given additional peremptory challenges. See, e.g., People v. Willis (2002) 27 Cal.4th 811, 818.
The Batson/Wheeler scheme thus provides a vehicle to challenge unlawful discrimination in the jury selection process. However, a new change to the law has expanded the reach of the challenge to specify specific circumstances that may not be used as “neutral” justifications for excluding jurors, and remedies to fix such .
Challenging Improper Juror Discrimination under New Cal. Code Civil Procedure § 231.7
Under California Code of Civil Procedure section 231.7, which just became effective this January 1, 2022, the Legislature has codified the “Batson/Wheeler” procedure described above, and added further clarifications and limitations on what justifications a lawyer can use to excuse a juror from a protected group:
(a) A party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.
(b) A party, or the trial court on its own motion, may object to the improper use of a peremptory challenge under subdivision (a). After the objection is made, any further discussion shall be conducted outside the presence of the panel. The objection shall be made before the jury is impaneled, unless information becomes known that could not have reasonably been known before the jury was impaneled.
(c) Notwithstanding Section 226, upon objection to the exercise of a peremptory challenge pursuant to this section, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised.
(d) (1) The court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. The court shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge. If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. The court need not find purposeful discrimination to sustain the objection. The court shall explain the reasons for its ruling on the record. A motion brought under this section shall also be deemed a sufficient presentation of claims asserting the discriminatory exclusion of jurors in violation of the United States and California Constitutions.
(2) (A) For purposes of this section, an objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California.
(B) For purposes of this section, a “substantial likelihood” means more than a mere possibility but less than a standard of more likely than not.
(C) For purposes of this section, “unconscious bias” includes implicit and institutional biases.
(3) In making its determination, the circumstances the court may consider include, but are not limited to, any of the following:
(A) Whether any of the following circumstances exist:
(i) The objecting party is a member of the same perceived cognizable group as the challenged juror.
(ii) The alleged victim is not a member of that perceived cognizable group.
(iii) Witnesses or the parties are not members of that perceived cognizable group.
(B) Whether race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, bear on the facts of the case to be tried.
(C) The number and types of questions posed to the prospective juror, including, but not limited to, any the following:
(i) Consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the concerns later stated by the party as the reason for the peremptory challenge pursuant to subdivision (c).
(ii) Whether the party exercising the peremptory challenge engaged in cursory questioning of the challenged potential juror.
(iii) Whether the party exercising the peremptory challenge asked different questions of the potential juror against whom the peremptory challenge was used in contrast to questions asked of other jurors from different perceived cognizable groups about the same topic or whether the party phrased those questions differently.
(D) Whether other prospective jurors, who are not members of the same cognizable group as the challenged prospective juror, provided similar, but not necessarily identical, answers but were not the subject of a peremptory challenge by that party.
(E) Whether a reason might be disproportionately associated with a race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups.
(F) Whether the reason given by the party exercising the peremptory challenge was contrary to or unsupported by the record.
(G) Whether the counsel or counsel’s office exercising the challenge has used peremptory challenges disproportionately against a given race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, in the present case or in past cases, including whether the counsel or counsel’s office who made the challenge has a history of prior violations under Batson v. Kentucky (1986) 476 U.S. 79, People v. Wheeler (1978) 22 Cal.3d 258, Section 231.5, or this section.
(e) A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case:
(1) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system.
(2) Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.
(3) Having a close relationship with people who have been stopped, arrested, or convicted of a crime.
(4) A prospective juror’s neighborhood.
(5) Having a child outside of marriage.
(6) Receiving state benefits.
(7) Not being a native English speaker.
(8) The ability to speak another language.
(9) Dress, attire, or personal appearance.
(10) Employment in a field that is disproportionately occupied by members listed in subdivision (a) or that serves a population disproportionately comprised of members of a group or groups listed in subdivision (a).
(11) Lack of employment or underemployment of the prospective juror or prospective juror’s family member.
(12) A prospective juror’s apparent friendliness with another prospective juror of the same group as listed in subdivision (a).
(13) Any justification that is similarly applicable to a questioned prospective juror or jurors, who are not members of the same cognizable group as the challenged prospective juror, but were not the subject of a peremptory challenge by that party. The unchallenged prospective juror or jurors need not share any other characteristics with the challenged prospective juror for peremptory challenge relying on this justification to be considered presumptively invalid.
(f) For purposes of subdivision (e), the term “clear and convincing” refers to the degree of certainty the factfinder must have in determining whether the reasons given for the exercise of a peremptory challenge are unrelated to the prospective juror’s cognizable group membership, bearing in mind conscious and unconscious bias. To determine that a presumption of invalidity has been overcome, the factfinder shall determine that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror’s ability to be fair and impartial in the case.
(g) (1) The following reasons for peremptory challenges have historically been associated with improper discrimination in jury selection:
(A) The prospective juror was inattentive, or staring or failing to make eye contact.
(B) The prospective juror exhibited either a lack of rapport or problematic attitude, body language, or demeanor.
(C) The prospective juror provided unintelligent or confused answers.
(2) The reasons set forth in paragraph (1) are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or the observations of counsel for the objecting party. Even with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried.
(h) Upon a court granting an objection to the improper exercise of a peremptory challenge, the court shall do one or more of the following:
(1) Quash the jury venire and start jury selection anew. This remedy shall be provided if requested by the objecting party.
(2) If the motion is granted after the jury has been impaneled, declare a mistrial and select a new jury if requested by the defendant.
(3) Seat the challenged juror.
(4) Provide the objecting party additional challenges.
(5) Provide another remedy as the court deems appropriate.
(i) This section applies in all jury trials in which jury selection begins on or after January 1, 2022.
(j) The denial of an objection made under this section shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.
(k) This section shall not apply to civil cases.
(l) It is the intent of the Legislature that enactment of this section shall not, in purpose or effect, lower the standard for judging challenges for cause or expand use of challenges for cause.
(m) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
(n) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.
Cal. Code Civ. Pro. § 231.7
Clearly, the new code under Section 231.7 provides much needed clarity, guidance, and limitations on how lawyers can use peremptory challenges to exclude groups of people based on biases of the attorneys, and spells out proper remedies for the Court to rectify such discrimination when it does occur. This will have a positive effect in criminal cases, to allow jurors of more rounded, diverse backgrounds bring their lived experiences to jury discussions in determining whether the District Attorney has proven their case beyond a reasonable doubt.
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