It’s becoming harder to establish that a peremptory challenge to a potential juror is discriminatory. It sometimes seems that almost any justification for striking a racial minority or a woman from the jury venire will be accepted. And woe to a party who is challenging a trial court’s finding against the existence of discrimination — talk about high hurdles.
The law clearly prohibits the use of peremptory challenges to systematically exclude jurors because of membership in a cognizable group distinguished by racial, religious, ethnic, or similar characteristics. People v Wheeler (1978) 22 C3d 258, 276, 148 CR 890; Batson v Kentucky (1986) 476 US 79, 84, 90 L Ed 2d 69, 79, 106 S Ct 1712. Discriminatory use of peremptory challenges is prohibited in both civil and criminal trials.
If a party believes that such systematic exclusion is occurring, he or she can challenge it through a Batson-Wheeler motion. But making a prima facie case of bias is difficult. And then, if the trial court denies the Batson-Wheeler motion, things get even more tricky.
The trial court’s ruling on a Batson-Wheeler motion will be upheld, even when the record does not contain detailed findings on the reasons for the exercise of each challenge, as long as
- The trial court was fully apprised of the nature of the challenge;
- The proffered reasons for excusing the juror are neither contradicted by the record nor inherently implausible; and
- Nothing in the record conflicts with either the presumption that all peremptory challenges have been exercised in a constitutional manner or the presumption that the trial court properly made a sincere and reasoned evaluation of the proffered reasons.
In criminal trials, defense counsel challenges an adverse state trial court ruling on bias in peremptory challenges with a federal habeas petition. After the prosecution has presented a race-neutral explanation for exercising the challenge, the trial court’s determination of credibility will stand as long as it is not unreasonable. A high hurdle indeed for the defense.
It is this high hurdle that was inexplicably vaulted by the Ninth Circuit in a recent case, provoking the Supreme Court to reverse the decision. In Felkner v Jackson (.pdf), the defendant unsuccessfully appealed the prosecutors peremptory challenge to two black jurors through the California state courts and then filed a federal habeas petition with the Ninth Circuit. As reported by Law. com, the Ninth Circuit lacked any basis for reversing the California court’s decision, which was “plainly not unreasonable.”
Despite the unlikeliness of success, a Batson-Wheeler motion can be useful. If you suspect that your opponent is abusing peremptory challenges in an attempt to dismiss all jurors of a cognizable group, keep close watch and be prepared to make your motion and create a complete record of your objections. By doing so you will leave no stone unturned in representing your client during jury selection.
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