By Paul Myslin, Criminal Law Content Attorney, CEB
In a criminal case, each side gets a certain number of peremptory challenges. A peremptory challenge is an objection to a juror that the court must follow, and for which no reason need be given. However, peremptory challenges may not be used to systematically exclude jurors based on their membership in a cognizable group distinguished by racial, religious, ethnic, or similar characteristics. This is colloquially known as the Batson-Wheeler rule. See Batson v. Kentucky (1986) 476 U.S. 79 (applying Fourteenth Amendment equal protection to jury service) and People v. Wheeler (1978) 22 Cal.3d 258 (California case requiring juries to be drawn from a representative cross-section of the community). See also Code of Civil Procedure section 231.5 (prohibiting use of race, color, religion, sex, national origin, sexual orientation, or similar grounds in jury selection).
There are three parts to litigating a classic Batson-Wheeler challenge. First, the side asserting the improper use of peremptory challenges must state a prima facie case of systematic exclusion. Next, the burden shifts to the other party to show that there were neutral reasons for exercising the challenges (i.e., reasons other than the systematic exclusion of members of a cognizable group). (Purkett v. Elem (1995) 514 U.S. 765, 768; People v. Clair (1992) 2 Cal.4th 629, 652.) Finally, the trial court must decide whether purposeful discrimination has been shown. (Snyder v. Louisiana (2008) 552 U.S. 472.)
As it currently stands, the burden of the party alleging systematic exclusion is to establish purposeful discrimination by a preponderance of the evidence. (People v. Hutchins (2007) 147 Cal.App.4th 992, 998.) Making that burden especially tough is the fact that courts have allowed justifications to be subjective. The opposing party’s burden at this stage is met by an explanation that is facially valid; it need not be persuasive or even plausible. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1168). Hunches, a prospective juror’s “body language,” a particular mode of answering questions, and lack of life experience have all been deemed acceptable reasons for excusing jurors and used to rebut the inference of systematic exclusion. (See People v. Hall (1983) 35 Cal.3d 161, 170; People v. Gray (2001) 87 Cal.App.4th 781, 788; People v. Perez (1994) 29 Cal.App.4th 1313, 1328.)
Over the years, a key criticism of the Batson-Wheeler procedure has been that many commonly proffered race-neutral reasons in Step 2 were in fact reasons disproportionately associated with those protected groups, with the same result as if race had been the stated reason. In addition, the high bar of establishing purposeful discrimination has made it extraordiarily difficult to prevail on a Batson-Wheeler challenge. As California Supreme Court Justice Goodwin Liu pointed out in a recent 21-page dissenting opinion, “it has been more than 30 years since this court has found racial discrimination in the peremptory strike of a Black juror.” (See People v. Triplett (Aug. 31, 2020, S262052) 2020 Cal.Lexis 5546, Liu, dissenting to denial of review.)
Enter AB 3070, authored by Assemblymember Shirley Weber (D-San Diego) and signed by Gov. Gavin Newsom in 2020.
Effective for all criminal trials where jury selection begins on or after Jan. 1, 2022, AB 3070 declares that requiring proof of intentional bias renders the procedure ineffective and that many of the reasons routinely advanced to justify the exclusion of jurors from protected groups are in fact associated with stereotypes about those groups or otherwise based on unlawful discrimination. AB 3070 amends California Code of Civil Procedure, section 231.7 subd.(d)(1) to lower the burden from purposeful discrimination to a “substantial likelihood” determination that an “objectively reasonable person would view [the protected group] as a factor in the use of the peremptory challenge”. The objectively reasonable person standard includes an awareness of unconscious bias, both implicit and institutional. (Code Civ. Proc., §§ 231.7(d)(2)(A)-(C).)
In addition to lowering the burden to sustain a challenge, AB 3070 also raises the bar for certain Step 2 justifications, making them presumptively invalid. An attorney relying on these justifications will have to show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a protected category, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case. (Code Civ. Proc., § 231.7(e).)
These new presumptively invalid reasons include such things as a distrust of or having a negative experience with law enforcement or the criminal legal system, a belief that law enforcement officers engage in racial profiling, a belief that criminal laws have been enforced in a discriminatory manner, or a close relationship with people who have been stopped, arrested, or convicted of a crime. Other presumptively invalid reasons trend toward socio-economic and geographic factors: the prospective juror’s neighborhood, having a child outside of marriage, receiving state benefits, or lack of employment or underemployment of the juror or a family member. Common group identifiers such as dress, attire, or personal appearance are included, as are language issues such as not being a native English speaker, or having the ability to speak another language.
Finally, broad categories include employment in a field that is disproportionately occupied by members listed in a protected group, or that serves a population disproportionately comprised of group members. Even a prospective juror’s apparent friendliness with another prospective juror of a protected group will be presumptively invalid as a reason for peremptory challenge.
AB 3070 also reaches into the tricky area of courtroom demeanor. Certain behaviors are now listed as presumptively invalid reasons to exclude a prospective juror, including inattentiveness, staring, failing to make eye contact, exhibiting a lack of rapport or a problematic attitude, body language or demeanor, or providing unintelligent or confused answers. (Code Civ. Proc., § 231.7(g)(1).) For these, however, the court and opposing counsel’s own observations can rebut the presumption, so long as it can be shown that the behavior matters to the case.
AB 3070 has the potential to turn a number of past California cases on their heads. Consider the following examples, and the peremptory challenges that were upheld as valid: People v. Winbush (2017) 2 Cal.5th 402 (prior arrest); People v. Adanandus (2007) 157 Cal.App.4th 496 (same); People v. Cummings (1993) 4 Cal.4th 1233 (relative with a conviction); People v. Clark (2011) 52 Cal.4th 856 (experience in counseling or social services); People v. Trevino (1997) 55 Cal.App.4th 396, 411 (same); People v. Chism (2014) 58 Cal.4th 1266 (lack of supervisory work experience); People v. Johnson (1989) 47 Cal.3d 1194 (bad feelings about police); People v. Calvin (2008) 159 Cal.App.4th 1377 (skepticism about the fairness of the criminal justice system); and People v. Barber (1988) 200 Cal.App.3d 378 (manner of dress, poor grasp of the English language).
For further discussion of Batson-Wheeler and juror challenges, see California Criminal Law Procedure and Practice (Cal. CEB) chapter 29.
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