A MANUAL OF JURY TRIAL PROCEDURES - 2004

1. Prosecution Peremptory Challenges

In Batson v. Kentucky, 476 U.S. 79, 87-98 (1986), the Supreme Court held that the racially discriminatory exercise of peremptory challenges by a prosecutor violated the equal protection rights of both the criminal defendant and the challenged juror. The Batson Court found that a defendant could demonstrate an equal protection violation based on the prosecutors discriminatory exercise of peremptory challenges in that defendants case alone; the court found that there was no need for a defendant to prove that the prosecutor had a pattern or practice in all of his/her cases of using peremptory challenges in a discriminatory manner. Batson, 476 U.S. at 95.

2. Criminal Defense Challenges

The exercise of peremptories by criminal defendants is also subject to a Batson challenge. Georgia v. McCollum, 505 U.S. 42, 59 (1992); United States v. De Gross, 960 F.2d 1433, 1442 (9th Cir. 1992) (en banc).

3. Civil Litigation

The Supreme Court extended Batsons prohibition against the racially discriminatory use of peremptories to civil actions in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 618-31 (1991).

4. Standing

Criminal defendants have standing to assert the equal protection rights of challenged jurors and, therefore, nonminority defendants can challenge the exercise of peremptories against prospective jurors in protected racial groups. Powers v. Ohio, 499 U.S. 400, 410-16 (1991).

5. Gender, Religion, Age and Other Classifications

The exercise of peremptory challenges based on gender violates the Equal Protection Clause. J.E.B. v. Alabama, 511 U.S. 127, 130-31 (1994); DeGross, 960 F.2d at 1437-43. Batson challenges based on age, religion, and membership in other definable classes have generally not been upheld. Weber v. Strippit, Inc., 186 F.3d 907, 911 (8th Cir. 1999) (declining to extend Batson to peremptory challenges based on age), cert denied, 528 U.S. 1078 (2000); Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999) (no precedent exists dictating extension of Batson to religion); United States v. Santiago-Martinez, 58 F.3d 422, 423 (9th Cir. 1995) (no Batson challenge based on obesity), cert denied, 516 U.S. 1044 (1996); United States v. Pichay, 986 F.2d 1259, 1260 (9th Cir. 1993) (young adults are not a cognizable group for purposes of a Batson challenge); but see United States v. Berger, 224 F.3d 107, 119-20 (2d Cir. 2000) (not reaching whether Batson applies to religion, but even assuming it did, peremptory strike of juror who was a rabbi did not violate Batson); United States v. Greer, 968 F.2d 433, 437-38 (5th Cir. 1992) (en banc) (defendants were not denied the opportunity to use their peremptory challenges effectively where trial court refused to make prospective Jewish jurors identify themselves), cert denied, 507 U.S. 962 (1993).

6. Erroneous Rulings on Batson Challenges

a. Denial of peremptory challenge. An erroneous denial of a defense peremptory challenge requires reversal of the conviction. United States v. Annigoni, 96 F.3d 1132, 1147 (9th Cir. 1996) (en banc).

b. Allowance of peremptory challenge. "Clearly, the proper remedy for the improper use of a peremptory challenge is automatic reversal." See, e.g., Annigoni, 96 F.3d at 1147.

1. Three-Step Process

A Batson challenge is a three-step process:

See Hernandez v. New York, 500 U.S. 352, 358-59(1991). See also Purkett v. Elem, 514 U.S. 765, 767 (1995); Stubbs v. Gomez, 189 F.3d 1099, 1104 (9th Cir. 1999), cert. denied, 531 U.S. 832 (2000).

2. Prima Facie Case

Cooperwood v. Cambra, 245 F.3d 1042, 1045-46 (9th Cir.), cert. denied, 534 U.S. 900 (2001). If the moving party fails to establish a prima facie case, the opposing party is not required to offer an explanation for the exercise of the peremptory challenge. Id.

3. Opposing Partys Burden

Once a prima facie case is established, the challenged party need only offer facially nondiscriminatory reasons; the reasons need not be "persuasive or even plausible." The persuasiveness of the challenged partys reasons is not relevant until the third part of the inquiry when the trial court determines whether the moving party has carried its burden of proving purposeful discrimination. Purkett, 514 U.S. at 767-68 (1995); United States v. Bauer, 84 F.3d 1549, 1554 (9th Cir. 1996), cert. denied, 519 U.S. 1131 (1997).

4. The Courts Duty

The trial court has the duty to determine whether the party objecting to the peremptory challenge has established purposeful discrimination. This finding turns largely on the courts evaluation of the credibility of the justification offered for the peremptory challenge. A court must undertake "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Batson, 476 U.S. at 94. See also Collins v. Rice, 365 F.3d 667, 678 (9th Cir. 2004).

5. Timeliness of Batson Challenges

"The case law is clear that a Batson objection must be made as soon as possible, and preferably before the jury is sworn." United States v. Contreras-Contreras, 83 F.3d 1103, 1104 (9th Cir.), cert. denied, 519 U.S. 903 (1996).

6. No Specific Findings Required

"Neither Batson nor its progeny requires that the trial judge make specific findings, beyond ruling on the objection." United States v. Gillam, 167 F.3d 1273, 1278 (9th Cir.), cert. denied, 528 U.S. 900 (1999).