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self-study / Jury Practice

Dec. 18, 2017

Batson/Wheeler objections to peremptory challenges

Gregory L. Prickett

Judge, Orange County Superior Court

The objective of this article and self-study test is to review the law regarding objections to the use of peremptory challenges to remove jurors because they are members of cognizable groups under Batson v. Kentucky, 476 U.S. 79 (1986), and People v. Wheeler, 22 Cal. 3d 258 (1978). Readers will learn about the constitutional basis for the objection, the three-step process used to resolve it, and the remedy for a Batson/Wheeler violation.

Constitutional Basis

The California Supreme Court in Wheeler, and subsequently the U.S. Supreme Court in Batson, held peremptory challenges cannot be used to excuse jurors because they are members of a cognizable group, such as race or religion. "Both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on race or gender. ... Such a use of peremptories ... 'violates the right [of a litigant] to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. ... Such a practice also violates [a litigant's] right to equal protection under the Fourteenth Amendment to the United States Constitution.'" People v. Bonilla, 41 Cal. 4th 313 (2007).

"The Constitutional interests Batson sought to vindicate are not limited to the rights possessed by the defendant on trial, ... nor to those citizens who desire to participate 'in the administration of the law, as jurors.' ... [T]he 'harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.'" Johnson v. California, 545 U.S. 162 (2005).

The party objecting to the exercise of the peremptory need not be a member of the class or group excluded by the challenges in order to have standing to object to their exclusion. Powers v. Ohio, 499 U.S. 400 (1991); People v. Burgener, 29 Cal. 4th 833 (2003). In fact, the court on its own motion may raise the issue. People v. Lopez, 3 Cal. App. 4th Supp. 11 (1991).

The constitutional bar to discriminatory use of peremptory challenges applies in both criminal and civil cases. See Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). Because the vast majority of appellate opinions arise in the context of appeals following criminal convictions, the opinions discussed in this article uniformly refer to prosecutors' exercise of peremptories and defendant's Batson/Wheeler objections. But, it is important to keep in mind that the constitutional bar applies regardless of the party that exercises the improper peremptory, whether it be the prosecutor or defense counsel. Georgia v. McCollum, 505 U.S. 42 (1992).

Three-Step Process

The Supreme Court has stated that, "[f]irst, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justification for the strikes [peremptory challenges]. Third, if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination." Johnson.

The bar to discriminatory peremptories applies only when the juror is a member of a cognizable group. See Batson. In California, pursuant to Code of Civil Procedure Section 231.5, such members include persons excluded based on their "sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation." Gov. Code Section 11135(a).

Step one

"To make a prima facie showing of group bias, the defendant must show that under the totality of the circumstances it is reasonable to infer discriminatory intent." People v. Davis, 46 Cal. 4th 539 (2009). "An 'inference' is generally understood to be a 'conclusion reached by considering other facts and deducing a logical consequence from them.'" Johnson. Pursuant to Johnson, "a prima face case of discrimination can be made out by offering a wide variety of evidence, so long as the sum of the proffered facts 'gives rise to an inference of discriminatory purpose.'"

"Though proof of a prima facie case may be made from any information in the record available to the trial court, [the California Supreme Court has] mentioned 'certain types of evidence that will be relevant for this purpose. Thus the 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. He [or she] may also demonstrate that the jurors in question share only this one characteristic -- their membership in the group -- and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed ask them any questions at all.'" People v. Bell, 40 Cal. 4th 582 (2007). Also, as indicated by Bell, although "the defendant need not be a member of the excluded group in order complain of a violation of the representative cross-section rule, ... if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court's attention."

Steps two and three

After the defense (moving party) makes a sufficient prima facie showing, "[o]nly then does the burden shift to the prosecution 'to explain adequately the racial exclusion.' ... But 'the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause.' ... Rather, adequate justification by the prosecutor may be no more than a 'hunch' about the prospective juror ... , so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias and not simply as 'a mask for race prejudice.'" People v. Williams, 16 Cal. 4th 635 (1997).

Steps two and three in the inquiry are interlinked. The responding party (prosecutor) in step two provides his or her reasons for the peremptory, and the court in step three determines whether the peremptory was used for a discriminatory reason.

"[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. ... It is true that peremptories are often the subject of instinct, ... and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false." Miller-El v. Dretke, 545 U.S. 231 (2005).

"The critical question in determining whether a party has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for his peremptory strike. ... The credibility of a prosecutor's stated reasons for exercising a peremptory challenge can be measured by among other factors how reasonable or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." People v. Lewis, 43 Cal. 4th 415 (2008).


When an objection is sustained to the discriminatory use of a peremptory challenge, Wheeler determined the remedy was to quash a jury venire and repeat jury selection. But, if the aggrieved party consents, other remedies are available.

"[W]ith the assent of the complaining party, the trial court should have the discretion to issue appropriate orders short of outright dismissal of the remaining jury, including assessment of sanctions against counsel whose challenges exhibit group bias and reseating any improperly discharged jurors if they are available to serve." People v. Willis, 27 Cal. 4th 811 (2002). The California Supreme Court indicated in Willis that awarding the aggrieved party additional peremptory challenges might also be appropriate.

The California Supreme Court stressed "that such waiver or consent is a prerequisite to the use of such alternative remedies or sanctions, for Wheeler made clear that 'the complaining party is entitled to a random draw from an entire venire' and that dismissal of the remaining venire is the appropriate remedy for a violation of that right. Thus, trial courts lack discretion to impose alternative procedures in the absence of consent or waiver by the complaining party. On the other hand, if the complaining party does effectively waive its right to mistrial, preferring to take its chances with the remaining venire, ordinarily the court should honor that waiver rather than dismiss the venire and subject the parties to additional delay."


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