NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 2: Capital Punishment Handbook: Pre-Trial And Preliminary Stage Issues

        2.6 Jury Selection Issues
               2.6.1  Voir Dire Procedure Generally
                         2.6.1.1  Individual Voir Dire
               2.6.2  Jury Impartial To Death Penalty – "Death Qualified" And "Life Qualified"
                         2.6.2.1  Harmless Error Analysis Not Applicable
                         2.6.2.2  Remedy For Witherspoon Violations
                         2.6.2.3  Conviction-Prone Juries At Guilt Phase
               2.6.3  Inquiry Into Racial Attitudes Of Jurors
               2.6.4  Discriminatorily Motivated Peremptory Challenges
                        2.6.4.1  Retroactivity Of Batson v. Kentucky
                        2.6.4.2  Harmless Error Not Applicable

In Press-Enterprise Co. v. Superior Ct., 464 U.S. 501 (1984), the Court extended the guarantee of public criminal proceedings to include death qualification voir dire proceedings. In Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994), the Ninth Circuit held that a capital defendant’s rights were not violated when he knowingly and voluntarily waived his right to be present during jury impanelment. In Knox v. Collins, 928 F.2d 657 (5th Cir. 1991), the Fifth Circuit held that the voir dire procedure, in which the judge told prospective jurors that he would instruct on the definition of a life sentence, interfered with the capital defendant’s ability to constitutionally exercise his peremptory challenges where counsel selected jurors relying on the judge’s representation and the court refused to give the applicable instruction.  

In United States v. Flores, 63 F.3d 1342 (5th Cir. 1995), the Fifth Circuit ruled that the trial court did not err when it refused to allow counsel to question each prospective juror individually about the death penalty. In Flores, the trial judge questioned the prospective jurors about capital punishment during group voir dire, questioned individuals privately whose group answers indicated a problem, and allowed counsel three hours to freely question the venire. Similarly, the Fourth and Tenth Circuits have held that inquiry into each prospective juror’s views on the specific mitigating factors in the case is not required as long as the voir dire is adequate to detect those in the venire who would automatically vote for the death penalty.

Press-Enterprise Co. v. Superior Ct., 464 U.S. 501 (1984) (stating voir dire in capital case must be public absent showing of need for closure).

Campbell v. Wood, 18 F.3d 662 (9th Cir.) (holding defendant’s absence from jury impanelment not unconstitutional where defendant knowingly and voluntarily waived right to be present), cert. denied, 511 U.S. 1119 (1994).

United States v. Tipton, 90 F.3d 861 (4th Cir. 1996) (holding inquiry into each prospective juror’s views on mitigating factors not necessary where voir dire adequately detected those in venire who would automatically vote for death penalty), cert. denied, 520 U.S. 1253 (1997).

United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996) (holding inquiry into each prospective juror’s views on mitigating factors not necessary where voir dire adequately detected those in venire who would automatically vote for death penalty), cert. denied, 520 U.S. 1213 (1997).

United States v. Flores, 63 F.3d 1342 (5th Cir. 1995) (holding individual voir dire of jurors who expressed opposition to death penalty in group voir dire not necessary where court questioned jurors further, in private, and answers indicated that information on voir dire was free flowing), cert. denied, 519 U.S. 825 (1996).

Knox v. Collins, 928 F.2d 657 (5th Cir. 1991) (holding voir dire procedure that effectively impairs defendant’s ability to exercise peremptory challenges intelligently is ground for penalty reversal, irrespective of prejudice), cert. denied, 510 U.S. 1061 (1994).

People v. Heard, 31 Cal. 4th 946, 75 P.3d, 4 Cal.Rptr.3d 131 (2003) (reversing a judgment as to the sentence of death and remanding for a new penalty trial before a properly selected jury because the trial court erred and was unwarranted in excusing a juror for cause, despite the juror's written response in a jury questionnaire that indicated he thought imprisonment for life without possibility of parole represented a “worse” punishment than death where, after the trial court explained to the juror during voir dire that California law considers death the more serious punishment and that the death penalty can be imposed under California law only if the aggravating circumstances outweigh the mitigating circumstances, the juror stated he would do “whatever the law states”; under the U.S. Supreme Court cases of Gray v. Mississippi and Davis v. Minnesota, this type of error is not subject to harmless error analysis, but must be considered reversible per se with regard to any ensuing death penalty judgment), cert. denied, 541 U.S. 910 (2004).

State v. Simonson, 329 Or. 288, 986 P.2d 566 (1999) (holding trial court did not abuse discretion in failing to dismiss jurors on sentencing venire who heard potential juror reference defendant’s death sentence previously being overturned), cert. denied, 528 U.S. 1090 (2000).

Fields v. Brown, 431 F.3d 1186 (9th Cir. 2005) (holding that capital habeas petitioner’s claim that a juror was impliedly biased was not barred by the rule of Teague v. Lane but that bias could not be inferred as a matter of law solely because juror was the spouse of a rape victim and petitioner’s charged crimes included that offense; also concluding that juror did not intentionally mislead the trial court on voir dire when he said his wife had been assaulted, beaten, and robbed two years ago and did not reveal that she was raped and kidnapped, and that juror was not actually biased).

Dyer v. Calderon, 139 F.3d 970 (9th Cir.) (en banc) (presuming bias from similarities between the killing of a juror’s family member and the facts surrounding the charge against capital defendant as well as lack of truthful answers to voir dire questions), cert. denied, 525 U.S. 1033 (1998).

Prior to 1968, jurors could be struck for cause from a capital jury if they exhibited any feelings against the death penalty. In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Court strictly limited the challenges for cause of potential jurors with reservations about the death penalty based on a defendant’s Sixth Amendment right to an impartial jury made up of a fair cross section of the community. The Witherspoon Court ruled that a judge could not exclude every potential juror with reservations about the death penalty. Instead, the Court stated that a court may exclude only those extreme opponents who would vote against the capital punishment in all cases regardless of the evidence presented.

In Adams v. Texas, 448 U.S. 38 (1980), the Court confirmed that the Witherspoon rule still applied in the post-Furman era of death penalty statutes and provided a new formulation of the rule. In Adams, the Court stated that a capital punishment opponent may not be challenged for cause unless his views would “prevent or substantially impair” his ability to carry out his duties as a juror. In Wainwright v. Witt, 469 U.S. 412 (1985), the Supreme Court confirmed the Adams formulation as the proper rule and clarified that the stricter standard set forth in Witherspoon is not the proper basis for excluding death-scrupled jurors. Under Witt, a potential juror’s views about the death penalty may not be the basis for a challenge for cause unless those views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Id. at 424 (quoting Adams v. Texas, 448 U.S. at 45).

In 1992, the Supreme Court ruled that a defendant has a right to “lifequalified” jurors capable of sentencing life imprisonment just as the state has a right to “death qualified” jurors capable of sentencing death. In Morgan v. Illinois, 504 U.S. 719 (1992), the Court held that a state trial court may not refuse to permit inquiry into whether a potential juror will automatically vote for the death penalty upon a conviction of the defendant as the basis for a challenge for cause.

Morgan v. Illinois, 504 U.S. 719 (1992) (holding state trial court may not refuse inquiry into whether potential juror would automatically impose death penalty upon conviction of defendant).

Darden v. Wainwright, 477 U.S. 168 (1986) (applying Witt to uphold exclusion of juror because of attitudes about death penalty; discussing scope of federal appellate review). 

Wainwright v. Witt, 469 U.S. 412 (1985) (holding proper standard for determining when prospective juror may be excluded for cause because of capital punishment views is whether juror’s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath;” state court’s determination to excuse juror for cause is finding of fact subject to presumption of correctness accorded by former 28 USC 2254(d) (now § 2254(e)(1)).

Adams v. Texas, 448 U.S. 38 (1980) (applying Witherspoon post-Furman, stating that juror cannot be struck for cause unless views on capital punishment would “prevent or substantially impair” performance of jury duties).

Davis v. Georgia, 429 U.S. 122 (1976) (per curiam) (holding death sentence unconstitutional where a single juror excluded in violation of Witherspoon).

Witherspoon v. Illinois, 391 U.S. 510 (1968) (holding right to impartial jury requires juror with reservations about death penalty may be excluded for cause only if “unmistakably clear” that juror would automatically vote against death sentence or that juror could not be impartial on the issue of guilt).

Brown v. Lambert, 431 F.3d 661 (9th Cir. 2005) (holding that two jurors were properly dismissed for cause due to their views on the death penalty, but that another juror was excluded for insufficient reasons, and not on the ground that his views would prevent or substantially impair the performance of his duties, as required by Witherspoon v. Illinois, where state court did not find that the juror would be unable to follow instructions, and the juror ultimately stated he could consider the death penalty in an appropriate case; also holding that prejudice was presumed, and so the death sentence could not stand).

Siripongs v. Calderon, 35 F.3d 1308 (9th Cir. 1994) (following Ross; actual jury impaneled was impartial, no due process violation for loss of peremptories to excuse jurors not excluded for cause, even assuming court used improper Witherspoon standard), cert. denied, 513 U.S. 1183 (1995).

People v. Cash, 28 Cal.4th 703, 50 P.3d 332, 122 Cal.Rptr.2d 545 (2002) (reversing a death sentence and holding that trial court erred in prohibiting defense counsel from inquiring during death-qualification voir dire whether prospective jurors would automatically vote for death penalty if defendant had previously committed another murder where that fact was likely to be of great significance to prospective jurors because defendant had been convicted of prior murders of his grandparents as a juvenile).

John C. Belt, Morgan v. Illinois: The Right to Balance Capital Sentencing Juries as to their Views on the Death Sentence is Finally Granted to Defendants, 24 N.M. L. Rev. 145 (1994) (exploring history of “death qualification” and “life qualification” of juries, progression of law of jury impartiality in capital cases, and focusing on latest case, Morgan).

Patrick J. Callans, Note, Sixth Amendment–Assembling a Jury Willing to Impose the Death Penalty: A New Disregard for a Capital Defendant’s Rights, 76 J. Crim. L. & Criminology 1027 (1985) (analyzing Witt in light of prior cases, concluding coherent standard of Witt abandons Witherspoon’s safeguards for defendant’s right to impartial jury).

James M. Carr, Note, At Witt’s End: The Continuing Quandary of Jury Selection in Capital Cases, 39 Stan. L. Rev. 427 (1987) (discussing death qualification procedure, evolution from Witherspoon to Witt, and arguing it provides lack of clear guidelines for capital jury selection process).

Christopher R. Drahozal, Comment, Wainright v. Witt and Death-Qualified Juries: A Changed Standard But an Unchanged Result, 71 Iowa L. Rev. 1187 (1986) (analyzing Witt, criticizing relaxed standard but concluding it will have little practical impact).

Stanton S. Krauss, The Witherspoon Doctrine at Witt’s End: Death Qualification Reexamined, 24 Am. Crim. L. Rev. 1 (1986) (analyzing Witherspoon in light of Witt). 

Valerie T. Rosenson, Note, Wainwright v. Witt: The Court Casts a False Light Backward, 66 B.U. L. Rev. 311 (1986) (analyzing Witt, in light of background cases and practical implications on capital defendants’ access to habeas corpus review, and arguing states should provide additional safeguards for defendants’ rights after Witt).

10.1.6 Jury Selection: Challenge For Cause Based On Juror's Views On Capital Punishment In Gray v. Mississippi, 481 U.S. 648 (1987), the Supreme Court stated that the nature of the jury selection process requires that the harmless error standard not apply to reviews of Witherspoon/Witt violations where a court erroneously excludes a juror who qualifies as impartial under Witt. Where a court erroneously fails to exclude a juror, however, the Court has used a harmless error type analysis. In Ross v. Oklahoma, 487 U.S. 81 (1988), the Court held that where a trial court mistakenly fails to exclude a juror who does not qualify as impartial under Witt, the crucial issue is whether the jury that actually sat was impartial.

United States v. Martinez-Salazar, 528 U.S. 304 (2000) (following Ross and finding no due process error where trial court in federal prosecution erroneously failed to remove for cause a juror later removed by a defense peremptory challenge because defendant convicted by an impartial jury).

Ross v. Oklahoma, 487 U.S. 81 (1988) (holding trial court’s erroneous failure to remove juror for cause not violation of defendant’s due process rights because no showing that ultimate jury which actually sat was not impartial).

Gray v. Mississippi, 481 U.S. 648 (1987) (holding exclusion of juror in violation of Witherspoon is not subject to harmless error analysis even if prosecutor did not utilize all peremptory challenges, and even if trial court erroneously denied prosecutor’s Witherspoon challenge of another juror).

Poland v. Stewart, 169 F.3d 573 (9th Cir. 1999) (holding trial court’s denial of challenges for cause did not violate Sixth Amendment where no prejudice shown), cert. denied, 528 U.S. 845 (1999).

Ross v. Oklahoma: A Strike Against Peremptory Challenges, 1990 Wis. L. Rev. 219 (1990) (discussing Ross’s departure from precedent, describing Court’s blurred distinction between peremptory and for cause challenges, and arguing for constitutional protection of peremptory challenges).

Ross v. Oklahoma: A Reversal of the Reversible Error Standard in Death Qualification Cases, 38 Cath. U.L. Rev. 881 (1989) (analyzing history and development of for cause and peremptory challenges, focusing on capital cases, comparing Gray and Ross, and concluding Gray provides better protection of capital defendants’ constitutional rights).

Although not completely clear, the plurality in Gray, along with a separate opinion by Justice Powell, seems to hold that a Witherspoon violation requires only that the death sentence, and not the conviction, be vacated. This conclusion is further supported by the Court’s ruling that Witherspoon/Witt errors entitle defendant to relief only if a death sentence was imposed. In Bumper v. North Carolina, 391 U.S. 543 (1968), the Court held that Witherspoon does not govern cases where life imprisonment instead of death was the sentence.

Gray v. Mississippi, 481 U.S. 648 (1987) (granting relief from death sentence in case with Witherspoon violation).

Bumper v. North Carolina, 391 U.S. 543 (1968) (holding appellant may not complain of Witherspoon error where jury recommends life imprisonment rather than death penalty).

Jacobson v. California, 431 F.2d 1017 (9th Cir. 1970) (citing Bumper, denying relief based on Witherspoon claim because sentence of death commuted to life imprisonment by Governor; not addressing applicability of Witherspoon violation to overturn conviction because claim not presented).

In Lockhart v. McCree, 476 U.S. 402 (1986), the Supreme Court addressed an issue left unresolved in Witherspoon: whether death qualification created a jury more prone to conviction at the guilt phase so that it violates a defendant’s right to an impartial jury. In McCree, the Court rejected the argument that death qualification of jurors prior to the guilt phase of a bifurcated trial violated defendant’s Sixth Amendment right to an impartial jury selected from a fair cross-section of the community. Even assuming that Witherspoon exclusions produce juries which may be more “conviction-prone” than “non-death-qualified” juries, the Court held that the practice of death qualification does not violate the fair cross-section requirement. In McCree, the Court also explained that the fair-cross section requirement applies only to jury venires and does not require that the petit jury actually chosen reflect the composition of the community at large.

Buchanan v. Kentucky, 483 U.S. 402 (1987) (holding that death qualified jury in joint trial of capital and non-capital defendants did not violate the Sixth Amendment right to an impartial jury).

Lockhart v. McCree, 476 U.S. 162 (1986) (holding removal of jurors under Witherspoon does not violate Sixth Amendment right to an impartial jury or to jury drawn from fair cross-section of community notwithstanding argument that resulting jury was “prosecution prone”).

Furman v. Wood, 190 F.3d 1002 (9th Cir. 1999) (clarifying that the death qualification of a jury does not affect the rights of defendant who is not eligible for the death Harris v. Pulley, 885 F.2d 1354 (9th Cir. 1988) (following and applying McCree, in rejecting claim of violation of right to fair and impartial jury based on conviction proneness), cert. denied, 493 U.S. 1051 (1990).

Evans v. Lewis, 855 F.2d 631, 635 (9th Cir. 1988) (following McCree in holding fair cross-section requirement applies only to venire panels, not to petit juries).

See generally:

Jane Byrne, Note, Lockhart v. McCree: Conviction-Proneness and the Constitutionality of Death-Qualified Juries, 36 Cath. U. L. Rev. 287 (1986) (reviewing history of concept of jury impartiality and cross-section of community, Supreme Court treatment of Witherspoon-excludables, and McCree’s impact on case law attempting to establish conviction-proneness).

Maury A. Hubbard III, Note, Lockhart v. McCree: Death Qualification of Jury Prior to Guilt Phase of Bifurcated Capital Trial Held Constitutional, 66 N.C. L. Rev. 183 (1987) (analyzing McCree reasoning in light of prior Sixth Amendment decisions, concluding that Court issued unnecessarily broad opinion which will undermine Sixth Amendment rights of capital and non-capital defendants).

Rick Seltzer, et al., The Effect of Death Qualification on the Propensity of Jurors to Convict: The Maryland Example, 29 How. L.J. 571 (1986) (critically examining McCree, in light of social science data, arguing ruling incorrect because of Court’s inability to accurately interpret and apply social science data).

John A. Wasleff, Note, Lockhart v. McCree: Death Qualification As a Determinant of the Impartiality and Representativeness of a Jury in Death Penalty Cases, 72 Cornell L. Rev. 1075 (1987) (arguing Court correctly decided McCree, preserving important procedural corollary to implementation of state death penalty laws; even if Court had concluded differently on cross-section and impartiality issues, balance of interests between state and defendant would compel same result).

Barbara J. Whisler, Note, Sixth Amendment–Death Qualification of the Jury: Process is Permissible Where Defendant Does Not Face Death Penalty, 78 J. Crim. L. & Criminology 954 (1988) (reviewing Buchanan, arguing it is unwarranted expansion of state’s right to death qualify, infringing on defendants’ Sixth Amendment rights).

In Turner v. Murray, 476 U.S. 28 (1986), the Court held that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. The Court reasoned that a capital case presents a special circumstance warranting this intrusion into a state trial court’s conduct of voir dire because “the range of discretion entrusted to a jury in a capital sentencing hearing [allows] a unique opportunity for racial prejudice to operate but remain undetected.” Id. at 35.

A defendant must specifically request or instigate such questioning of the jury venire. Should a state trial court refuse a request to question prospective jurors on racial prejudice, thereby failing to adequately protect a capital defendant’s constitutional right to an impartial jury, the death sentence must be vacated. The court, however, need not however mandate a retrial on the issue of guilt.

Turner v. Murray, 476 U.S. 28 (1986) (holding Sixth and Fourteenth Amendments guarantee defendant accused of interracial crime right to have prospective jurors informed of race of victim and questioned on issue of racial bias; remedy for denial of that right is vacation of the death sentence but not conviction).

See generally:

Stephen B. Bright, Challenging Racial Discrimination in Capital Cases, 21 Champion, Feb. 1997 at 19 (examining issues of racial discrimination that frequently arise in capital cases).

Nancy L. Alvarez, Comment, Racial Bias and the Right to an Impartial Jury: A Standard for Allowing Voir Dire Inquiry, 33 Hastings L.J. 959 (1982) (addressing, prior to Turner, issue of racial inquiry on voir dire, discussing prior Supreme Court cases, and urging clear constitutional standard be adopted requiring such inquiry in criminal cases where juror panel of different race than defendant).

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that the Equal Protection Clause prohibits a prosecutor from using peremptory challenges to exclude potential jurors solely on account of their race or on the assumption that black jurors as a group are unable to impartially consider the case against a black defendant. Batson overturned Swain v. Alabama, 380 U.S. 202 (1965), which required a defendant to show discrimination through exclusion of black jurors in repeated cases in addition to defendant’s case.

Under Batson, in order to contest the discriminatory use of peremptory challenges by the prosecution, a defendant must establish a prima facie case of discrimination by showing circumstances indicating that the exclusion of jurors was based on their race. These circumstances include but are not limited to a pattern of striking members of a certain racial group, or voir dire questions that reveal the prosecutor’s intent to strike solely for racial reasons. Once a defendant puts forth a prima facie case, the prosecutor must come forward with “clear and reasonably specific” neutral explanations for the peremptory strikes. In Purkett v. Elem, 514 U.S. 265 (1995), the Supreme Court further clarified that a Batson analysis must follow three steps in sequence: (1) the opponent of the peremptory challenge makes a prima facie showing of racial discrimination, (2) the burden of proof then shifts to the proponent of the strike to present a race-neutral explanation, noting that unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral, and (3) the court then determines whether the opponent of the strike has proved purposeful discrimination. In Johnson v. California, 125 S. Ct. 2410 ( 2005), the Supreme Court held that the objector, in order to establish a prima facie case under Batson, is not required to show that it is more likely than not that the other party’s peremptory challenges, if unexplained, were based on impermissible group bias.  

In 1991, the Court decided Powers v. Ohio, 499 U.S. 400 (1991), which expanded the Batson rule to cases where the defendant and excluded jurors are not of the same race. Georgia v. McCollum, 505 U.S. 42 (1992) extended Batson’s equal protection rationale to prohibit the use of racially discriminatory peremptory challenges by criminal defendants. In 1994, the Court extended the Batson prohibition to peremptory strikes based on the gender of a potential juror. J.E.B. v. Alabama, 511 U.S. 127 (1994).

The Ninth Circuit has held en banc that a trial court’s determination of the first prong of Batson–the prima facie showing of racial discrimination–is reviewed deferentially in a federal habeas proceeding. Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999) (en banc). This ruling is consistent with the appellate standard of review in other jurisdictions.

Rice v. Collins, 126 S. Ct. 969 (2006) (holding that on direct appeal in federal court, the credibility findings a trial court makes in a Batson inquiry are reviewed for clear error, (2) under AEDPA, however, a federal habeas court must find the state-court conclusion “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” and thus (3) a federal habeas court can only grant a habeas petition if it was unreasonable to credit a prosecutor’s race-neutral explanations for the Batson challenge).

Johnson v. California, 125 S. Ct. 2410 (2005) (holding that the objector, in order to establish a prima facie case under Batson, is not required to show that it is more likely than not that the other party’s peremptory challenges, if unexplained, were based on impermissible group bias; resolving a conflict between decisions of the California Supreme Court and the Ninth Circuit, the Court agreed with the Ninth Circuit and said that it did not intend the first step in Batson to be so onerous that a defendant would have to persuade the judge--on the basis of all the facts, some of which are impossible for the defendant to know with certainty--that the challenge was more likely than not the product of purposeful discrimination).

Miller-El v. Dretke, 125 S. Ct. 2317 (2005) (holding that a capital habeas petitioner was entitled to prevail on his Batson claim in a case in which 91% of eligible African-American venire members were struck; also holding that if a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination; noting that here (1) at least two of the blacks on venire panel were ostensibly acceptable to prosecutors seeking the death penalty, and that prosecutors’ chosen race neutral reasons for the strikes did not hold up; (2) district attorney’s office had, for decades, followed a specific policy of systematically excluding black people from juries; (3) prosecutors’ notes of the race of each panel member showed that they took their cues from a jury selection manual that included racial stereotypes; and (4) different questions were asked of black prospective jurors than of white ones). 

Miller-El v. Cockrell, 537 U.S. 322 (2003) (holding that jurists of reason could have debated whether prosecution’s use of peremptory strikes against African-American prospective jurors was a result of purposeful discrimination, and therefore petitioner was entitled to a COA; noting that the statistical evidence that prosecution used peremptory strikes to exclude 91 percent of the eligible African-American venire members and that 10 of the 14 peremptory strikes used by the prosecution were used against African-Americans raised some debate as to whether prosecution acted with race-based reason).

Purkett v. Elem, 514 U.S. 765 (1995) (insisting on sequence of each Batson “step”: (1) opponent of peremptory challenge has made prima facie case of racial discrimination, (2) burden of production shifts to proponent of strike to present race-neutral explanation, (3) trial court determines whether opponent of strike has proved purposeful discrimination; reversing Eighth Circuit’s combining of second and third steps, noting unless explanation reveals inherent evidence of discrimination, it is deemed race-neutral).

Davis v. Minnesota, 511 U.S. 1115 (1994) (denying certiorari for Minnesota Supreme Court’s ruling, in State v. Davis, 504 N.W.2d 767 (1993), that Batson does not extend to peremptory strikes based on religion).

J.E.B. v. Alabama, 511 U.S. 127 (1994) (holding Fourteenth Amendment equal protection prohibits peremptory challenges on basis of gender as well as race because under heightened scrutiny analysis, peremptory challenge discrimination does not further state’s legitimate interest in fair and impartial trial).

Georgia v. McCollum, 505 U.S. 42 (1992) (holding Fourteenth Amendment equal protection prohibits state criminal defendant from purposeful racial discrimination through peremptory challenges).

Hernandez v. New York, 500 U.S. 352 (1991) (stating that once a prosecutor has offered a race-neutral explanation for peremptory challenges and trial court has ruled on ultimate question of intentional discrimination, the preliminary issue of whether defendant has made a prima facie showing becomes moot).

Powers v. Ohio, 499 U.S. 400 (1991) (modifying Batson, 476 U.S. 79 (1986); holding defendant may object to prosecutor’s race-based peremptory challenges to jurors whether or not defendant and excluded juror share same race).

Batson v. Kentucky, 476 U.S. 79 (1986) (holding equal protection prohibits peremptory exclusion of jurors based on race; where defendant establishes prima facie case of purposeful discrimination by showing that: (1) defendant is member of cognizable racial group; (2) group’s members have been excluded from defendant’s jury by prosecutor’s peremptory challenges; and (3) circumstances of case raise inference that exclusion was based on race, burden shifts to prosecutor to justify exclusion). 

Swain v. Alabama, 380 U.S. 202 (1965) (holding prima facie case of purposeful discrimination established only where defendant shows systematic exclusion of blacks from juries by the prosecution in case after case, over period of time), overruled by Batson v. Kentucky, 476 U.S. 79 (1986).

Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004) (holding that capital habeas petitioner failed to make the “substantial showing of the denial of a constitutional right” necessary to warrant a COA on a Batson claim because he did not make a prima facie showing of a violation; noting that statistical facts like a high proportion of African-Americans struck and a disproportionate rate of strikes against African-Americans can establish a pattern of exclusion on the basis of race that gives rise to a prima facie Batson violation, the court said that here it was impossible to say whether any statistical disparity existed that might support an inference of discrimination since, despite alleging that the prosecutor used peremptory challenges to strike the only two African-American females as prospective jurors and used one peremptory challenge to strike an African-American male as an alternate juror, petitioner did not allege, and the record does not disclose, facts like how many African-Americans (apparently men, if any) sat on the jury, how many African-Americans were in the venire, and how large the venire was), reh’g and reh’g en banc denied, 396 F.3d 1059 (9th Cir. 2005).

Cooperwood v. Cambra, 245 F.3d 1042 (9th Cir.) (holding in noncapital case that whenever state court used incorrect “strong likelihood” standard rather than the Batson “reasonable inference” test that peremptory challenge was based on race, rule of deference to state court decision would not be applied, and court would review issue de novo; concluding that male African-American defendant failed to establish prima facie Batson violation in peremptory strike of male African-American prospective juror without voir dire where two prior excused jurors were white and jury ultimately included two African-American women, as well as three Asian Americans and one Pacific Islander), cert. denied, 534 U.S. 900 (2001).

Tolbert v. Gomez, 190 F.3d 985 (9th Cir. 1999) (holding petitioner failed to establish a prima facie Batson violation where prosecutor exercised peremptory challenge against black man who approached bench during voir dire to inquire why race was not being discussed in trial of black co-defendants).

Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999) (en banc) (holding a trial court’s determination of the first prong of Batson is reviewed deferentially, not de novo, in a federal habeas proceeding).

Ricardo v. Rardin, 189 F.3d 474 (9th Cir.) (unpublished) (finding Batson violation where prosecutor’s explanations were tainted by racial references making them not race-neutral as a matter of law), cert. denied, 528 U.S. 1047 (1999).

Windham v. Merkle, 163 F.3d 1092 (1998) (finding no race-related Batson violation where prosecutor, who, after accepting three black jurors, challenged three black women because he wanted more men on jury and at time of objection, nine of twelve jurors in box were women).

Turner v. Marshall, 121 F.3d 1248 (9th Cir. 1997) (ruling that prosecutor’s stated reason for dismissing black juror was “pretextual” where prosecution did not dismiss white female juror with similar reservations), cert. denied, 522 U.S. 1153 (1998).

Johnson v. Campbell, 92 F.3d 951 (9th Cir. 1996) (holding district court did not err in refusing to question challenged juror about sexual orientation or to permit Batson hearing where there was no showing of purposeful discrimination).

United States v. Collins, 90 F.3d 1420 (9th Cir. 1996) (holding prosecutor’s use of two peremptory challenges on Hispanic jurors not purposeful discrimination based on explanation that jurors behaved strangely).

United States v. Contreras-Contreras, 83 F.3d 1103 (9th Cir. 1996) (holding prosecution’s volunteered explanation for exercising peremptory challenge on African-American juror does not preserve issue for appeal where defense fails to object at voir dire or during trial; also finding no error to accept explanation of recent jury service as race-neutral explanation for strike), cert. denied, 519 U.S. 903 (1996).

Turner v. Marshall, 63 F.3d 807 (9th Cir. 1995) (finding prima facie evidence of Batson violation; fact that prosecutor did not attempt to remove all black jurors weighs against Batson claim, but is not dispositive; declining to address issue of “black males” as protected Batson class), cert. denied, 522 U.S. 1153 (1998), and overruled en banc on other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999).

United States v. Santiago-Martinez, 58 F.3d 422 (9th Cir. 1995) (holding equal protection analysis of Batson does not apply to prohibit peremptory strikes based on obesity), cert. denied, 516 U.S. 1044 (1996).

Burks v. Borg, 27 F.3d 1424 (9th Cir. 1994) (deferring to trial court’s Batson finding as long as no erroneous reading of the law), cert. denied, 513 U.S. 1160 (1995). 

United States v. Omoruyi, 7 F.3d 880 (9th Cir. 1993) (holding peremptory challenges based on marital status do not violate Batson).

Montiel v. City of Los Angeles, 2 F.3d 335 (9th Cir. 1993) (holding when plaintiff raised Batson objection to defendant’s peremptory challenge of black juror, district court should have conducted Batson inquiry).

United States v. Changco, 1 F.3d 837 (9th Cir.) (holding passivity, inattentiveness, inability to relate to other jurors, and demonstrated lack of proficiency in English are sufficiently race-neutral reasons to rebut prima facie Batson showing), cert. denied, 510 U.S. 1019 (1993).

Palmer v. Estelle, 985 F.2d 456 (9th Cir.) (holding prosecutor’s acceptance of minorities on jury is valid but not dispositive consideration in determining Batson violation), cert. denied, 509 U.S. 928 (1993).

United States v. De Gross, 960 F.2d 1433 (9th Cir. 1992) (holding, prior to J.E.B. v. Alabama, that gender-based discriminatory peremptory challenges violate equal protection).

United States v. Bishop, 959 F.2d 820 (9th Cir. 1992) (holding impression of bias based on low-income and social status is not race-neutral reason sufficient to rebut prima facie Batson showing).

United States v. Chinchilla, 874 F.2d 695 (9th Cir. 1989) (overturning trial court finding of no Batson violation where comparison between answers of prospective jurors struck and those not struck undermines prosecutor’s credibility).

United States v. Lewis, 837 F.2d 415, 417 (9th Cir.) (stating trial court’s finding of discriminatory intent rests largely upon credibility and is entitled to deference), cert. denied, 488 U.S. 923 (1988).

United States v. Thompson, 827 F.2d 1254, 1257-59 (9th Cir. 1987) (holding, while Batson did not formulate procedures for dealing with defendant’s objection, judge may not adopt procedures such as ex parte procedures that impair defendant’s right to due process; objections may be timely even if made after the jury is sworn).

See generally:

Raymond J. Broderick, Why the Peremptory Challenge Should be Abolished, 65 Temp. L. Rev. 369 (1992) (arguing peremptory challenge offensive to federal constitution and basic concepts of justice).

Cameron M. Currie, Gender-Based Peremptory Strikes: A Post-J.E.B. Analysis, 7-Feb. S.C. Law. 14 (1996) (tracing Supreme Court law of discriminatory peremptory challenges and analyzing impact of J.E.B).

Michael J. Desmond, Limiting A Defendant’s Peremptory Challenges: Georgia v. McCollum and the Problematic Extension of Equal Protection, 42 Cath. U. L. Rev. 389 (1993) (analyzing role of peremptory challenge, discriminatory abuse and limitations by Supreme Court, focusing on shortcomings of Batson and McCollum remedies).

Nancy D. Dillard, The Death Knell of the Insurmountable Burden: Batson v. Kentucky, 31 St. Louis U. L.J. 473 (1987) (analyzing Batson in light of Swain).

Eric K. Ferraro, United States v. De Gross: The Ninth Circuit Expands Restrictions on a Criminal Defendant’s Right to Exercise Peremptory Challenges, 23 Golden Gate U. L. Rev. 109 (1993) (reviewing Ninth Circuit De Gross decision in light of related cases).

Michele A. Gemskie, Fourteenth Amendment–Peremptory Challenges by Defendants and the Equal Protection Clause, 83 J. Crim. L. & Criminology 920 (1993) (reviewing and analyzing McCollum).

Dave Harbeck, Eliminating Unconstitutional Juries: Applying United States v. De Gross to All Heightened Scrutiny Equal Protection Groups in the Exercise of Peremptory Challenges, 77 Minn. L. Rev. 689 (1993) (analyzing Ninth Circuit De Gross case, endorsing holding as solution to discrimination in jury selection process while maintaining peremptory challenges, arguing it should extend to any group warranting intermediate or strict scrutiny under traditional equal protection principles).

Susan Herman, Why the Court Loves Batson: Representation-Reinforcement, Colorblindness, and the Jury, 67 Tul. L. Rev. 1807 (1993) (discussing Batson line of cases as Court’s response to problem of racism in criminal justice system, addressing new focus on prospective jurors’ rights, and discussing practical impact).

Barbara L. Horwitz, The Extinction of the Peremptory Challenge: What Will the Jury System Lose by its Demise?, 61 U. Cin. L. Rev. 1391 (1993) (examining peremptory challenge, its weakening through Batson and progeny, and arguing equal protection concerns do not outweigh protections to litigants offered by peremptory challenge).

Scott W. Howe, Juror Neutrality or An Impartiality Array? A Structural Theory of the Impartial Jury Mandate, 70 Notre Dame L. Rev. 1173 (1995) (analyzing Supreme Court jury impartiality doctrine as a whole, and suggesting theory for integrating the decisions as a logical and conceptual whole).

Brian A. Howie, A Remedy Without a Wrong: J.E.B. and the Extension of Batson to Sex-Based Peremptory Challenges, 52 Wash. & Lee L. Rev. 1725 (1995) (analyzing and criticizing J.E.B. opinion).

Nancy J. King, Postconviction Review of Jury Discrimination: Measuring the Effects of Juror Race on Jury Decisions, 92 Mich. L. Rev. 63 (1993) (reviewing effect of jury discrimination on jury decisions, arguing for possible solutions).

Jason Laeser, Jurors and Litigants Beware–Savvy Attorneys are Prepared to Strike: Has Purkett v. Elem Signaled the Demise of the Peremptory Challenge at the Federal And State Levels?, 52 U. Miami L. Rev. 635 (1998) (illustrating that peremptory challenges are still being used for discriminatory purposes, undermining the intent of Batson).

Barat S. McClain, Turner’s Acceptance of Limited Voir Dire Renders Batson’s Equal Protection a Hollow Promise, 65 Chi.-Kent L. Rev. 273 (1989) (analyzing Court’s equal protection decisions relating to petit jury selection and to peremptory challenges, noting inconsistencies).

Sherrie J. O’Brien, J.E.B. v. Alabama ex rel. T.B.: The Collapse of the Peremptory Challenge, 14 St. Louis U. Publ. L. Rev. 655 (1995) (discussing J.E.B. and evolving law of peremptory challenges, and concluding J.E.B. effectively eliminates the peremptory challenge).

J. Christopher Peters, Georgia v. McCollum: It’s Strike Three for Peremptory Challenges, But is it the Bottom of the Ninth?, 53 La. L. Rev. 1723 (1993) (analyzing McCollum and impact on future exercise of peremptory challenges).

Salvatore Picariello, Fourteenth Amendment–Peremptory Challenges–The Equal Protection Clause of the Fourteenth Amendment Prohibits a Criminal Defendant’s Exercise of Racially Peremptory Challenges–Georgia v. McCollum, 23 Seton Hall L. Rev. 1160 (1993) (reviewing McCollum).

Deborah A. Ramirez, Excluded Voices: The Disenfranchisement of Ethnic Groups from Jury Service, 1993 Wis. L. Rev. 761 (1993) (arguing against Supreme Court decision effectively permitting arbitrary exclusion of all Spanish-speaking potential jurors where witness will testify in Spanish).

William C. Slusser, David Hricik, & Matthew P. Eastus, Batson, J.E.B. and Purkett: A Step-By-Step Guide to Making and Challenging Peremptory Challenges in Federal Court, 37 S. Tex. L. Rev. 127 (1996) (outlining practical steps to take to follow recent Supreme Court law on peremptory challenges).

Joel H. Swift, The Unconventional Equal Protection Jurisprudence of Jury Selection, 16 N. Ill. U. L. Rev. 295 (1996) (analyzing Supreme Court jurisprudence on equal protection and jury selection and arguing that conventional doctrine has not been applicable to determination of prima facie case of “purposeful discrimination”).

Joshua E. Swift, Batson’s Invidious Legacy: Discriminatory Juror Exclusion and the “Intuitive” Peremptory Challenge, 78 Cornell L. Rev. 336 (1993) (arguing once prima facie case of discrimination established, only allowable peremptory challenges are hard-data exclusions evincing “substantial nexus” between juror’s statements and facts of case; urging Court to disallow soft-data exclusions).

David A. Sutphen, True Lies: The Role of Pretext Evidence under Batson v. Kentucky in the Wake of St. Mary’s Honor Center v. Hicks, 94 Mich. L. Rev. 488 (1995) (addressing standard of proof analysis for proof of pretext in peremptory strike validity challenges, focusing on burden-shifting framework in post-Batson cases).

In Allen v. Hardy, 478 U.S. 255 (1986), the Supreme Court held that the Batson rule is not applicable to cases on collateral habeas review. Cases pending on direct review or otherwise not yet final, however, are entitled to retroactive application of Batson. Griffith v. Kentucky, 479 U.S. 314 (1987). In Ford v. Georgia, 498 U.S. 411 (1991), the Court further held that since Batson did not change the nature of the violation recognized in Swain but rather only the quantum of proof necessary to substantiate a claim, an allegation of an equal protection violation under Swain necessarily triggers an equal protection violation under Batson.

Trevino v. Texas, 503 U.S. 562 (1992) (holding case on direct review when Batson announced is entitled to Batson rule; defendant filed pretrial motion to prevent prosecutor from using peremptory challenges on basis of race and claimed historical pattern of discriminatory use of peremptory challenges and made express references to Swain).

Ford v. Georgia, 498 U.S. 411 (1991) (holding since Batson did not change nature of violation recognized in Swain but only the quantum of proof necessary to substantiate a claim; allegation of an equal protection violation under Swain necessarily states an equal protection violation under Batson).

Teague v. Lane, 489 U.S. 288 (1989) (reaffirming Allen v. Hardy and holding that Batson claim not available to petitioner whose conviction was final when Batson was decided).

Griffith v. Kentucky, 479 U.S. 314 (1987) (holding Batson retroactive to cases pending on direct review or not yet final when decision announced; does not overrule Hardy regarding retroactivity to habeas cases).

Allen v. Hardy, 478 U.S. 255 (1986) (holding Batson not retroactive to cases pending on habeas review when decision announced; decisions explicitly overruling past precedent almost automatically nonretroactive).

Nevius v. Sumner, 852 F.2d 463 (9th Cir. 1988) (holding, where Batson does not apply because conviction is final, conviction may be set aside under Swain if prosecutor voluntarily places on record the reasons for peremptory challenges), cert. denied, 490 U.S. 1059 (1989).

The Supreme Court found that the constitutional violation in Batson was structural error, warranting automatic reversal.

Dawson v. Delaware, 503 U.S. 159 (1992) (Blackmun, J., concurring) (noting Court declined to apply harmless error analysis in Batson).

Vansickel v. White, 166 F.3d 953 (9th Cir.) (acknowledging that petitioner’s federal due process right violated by denial of half of the peremptory challenges to which petitioner entitled under state law but holding, on federal habeas review of state prosecution, petitioner unable to show cause and prejudice on procedurally defaulted claim; dissent arguing prejudice should be presumed), cert. denied, 528 U.S. 965 (1999).

United States v. Annigoni, 96 F.3d 1132 (9th Cir. 1996) (en banc) (holding erroneous denial of defendant’s right of peremptory challenge requires automatic reversal, not subject to harmless error analysis; following pre-Batson case law regarding erroneous denial of peremptory challenge; rejecting argument that peremptory challenges be eliminated altogether; vacating panel opinion holding opposite).