Batson Basics: Identifying Pretext

November 29, 2016
By Hanging Out with Carl Gunn


  • While courts must still proceed to the third Batson step when a prosecutor does not or cannot offer race-neutral reasons for a challenge, Ninth Circuit case law holds that a failure to offer race-neutral reasons is itself evidence and that it is evidence which will establish purposeful discrimination in most cases.
  • Where a race-neutral reason is offered, factors the cases suggest considering in determining whether the reason is pretextual include the plausibility of the reason given, the prosecutor’s demeanor, whether the reason has some basis in trial strategy, whether the reason is contradicted by the record, and whether the prosecutor engaged in any meaningful questioning of the juror in voir dire.
  • Another tool, which the Ninth Circuit and Supreme Court have described as “powerful” and “a centerpiece of Batson analysis,” is comparative juror analysis, where the characteristics and questioning of struck minority jurors are compared side-by-side with the characteristics and questioning of non-minority jurors not struck.



I ended the last Batson post by identifying some general principles about Step 3 of the Batson framework – determining whether whatever race-neutral reasons the prosecutor may have offered are a pretext.  I did brush by the situation where a prosecutor either refuses to offer a race-neutral reason or can’t offer a race-neutral reason due to a failure of recollection in a hearing on remand or in habeas proceedings.  A court in this situation is still required to continue on to Step 3 and “make the ultimate determination of whether there has been purposeful discrimination.”  Yee v. Duncan, 463 F.3d 893, 901 (9th Cir. 2006), quoted in Paulino v. Harrison, 542 F.3d 692, 702 (9th Cir. 2008).  But a refusal to provide or failure to recall a race-neutral reason “is evidence of discrimination.”  Yee, 463 F.3d at 900, quoted in Paulino, 542 F.3d at 702.  See also Johnson v. California, 545 U.S. 162, 171 n.6 (2005).  Further, it is evidence which the government will usually be unable to overcome.  As the Ninth Circuit explained in Paulino:

Where the state fails to meet its burden of production, the evidence before the district court at step three – the prima facie showing plus the evidence of discrimination drawn from the state’s failure to produce a reason – will establish purposeful discrimination by a preponderance of evidence in most cases.  Indeed, in such cases, there is no race-neutral evidence to weigh.

Paulino, 542 F.3d at 703.

As to how to determine pretext when a race-neutral reason is given, the cases are very fact-specific and too many to all include here, but there are a couple of things I thought I’d point to.  First, there’s some common sense questions to ask that are suggested by the Supreme Court’s opinion in Miller-El v. Cockrell, 537 U.S. 322 (2003).  One is whether the reasons given by the prosecutor are “implausible or fantastic.”  Id. at 339 (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)).  Other ways to measure the prosecutor’s credibility include “by . . . the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.”  Miller-El, 537 U.S. at 339.  Additional factors suggested in Ninth Circuit opinions include whether the reasons given by the attorney are contradicted by the record and whether the attorney engaged in any meaningful questioning of the challenged juror during voir dire.  See SmithKline Beecham v. Abbott Laboratories, 740 F.3d 471, 477-78 (9th Cir. 2014), and cases cited therein.  There are also additional factors pointed to in other cases.

There’s also a more general mode of analysis that I mentioned in passing in the last Batson post known as “comparative juror analysis.”  One of the earlier Ninth Circuit cases describing this mode of analysis was Boyd v. Newland, 467 F.3d 1139 (9th Cir. 2006).  In holding that the defendant was entitled to a transcript of voir dire in order to conduct the analysis, the court noted how important and powerful comparative juror analysis could be.

“Comparative juror analysis” refers, in this context, to an examination of a prosecutor’s questions to prospective jurors and the jurors’ responses, to see whether the prosecutor treated otherwise similar jurors differently because of their membership in a particular group.  (Citations omitted.)  Miller-El [v. Dretke, 545 U.S. 231 (2005),] made clear that comparative juror analysis is an important tool that courts should utilize in assessing Batson claims: “More powerful than the bare statistics [revealing that the prosecution struck 91% of black potential jurors], however, are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve.” [545 U.S. at 241.]

Boyd, 467 F.3d at 1145.  The Court then went on to describe comparative juror analysis as “a centerpiece of Batson analysis,” Boyd, 467 F.3d at 1150, and state that “[w]ithout engaging in comparative juror analysis, we are unable to review meaningfully whether the trial court’s ruling at either step one or step three of Batson was unreasonable in light of Supreme Court precedent,”  Boyd, 467 F.3d at 1149.  Since Boyd, the Ninth Circuit has come to recognize comparative juror analysis as “an established tool . . . for determining whether facially race-neutral reasons are a pretext for discrimination.”  Crittenden v. Ayers, 624 F.3d 943, 956 (9th Cir. 2010).  See also Ayala v. Wong, 756 F.3d 656, 676 (9th Cir. 2014) (“The Supreme Court has emphasized the importance of this sort of ‘comparative juror analysis’ to determine whether a prosecutor’s reasons for challenging a minority juror are pretextual.”  (Citing Miller-El v. Dretke, 545 U.S. at 241, and Snyder v. Louisiana, 552 U.S. 472 (2008)), rev’d sub nom. Davis v. Ayala, 135 S. Ct. 2187 (2015); Jamerson v. Runnels, 713 F.3d 1218, 1224 (9th Cir. 2013) (holding that “[a]s part of its evaluation of the prosecutor’s reasoning, the court must conduct a comparative juror analysis”), cert. denied, 134 S. Ct. 1285 (2014).  Several Ninth Circuit opinions illustrate the extensive, detailed analysis in which you can and should engage in conducting this analysis.  See, e.g., Cook v. LaMarque, 593 F.3d 810, 817-23 (9th Cir. 2010); id. at 834-37 & n.8 (Hawkins, J., concurring and dissenting);  Green v. LaMarque, 532 F.3d 1028, 1031-32 (9th Cir. 2008); Kesser v. Cambra, 465 F.3d 351, 362-68 (9th Cir. 2006) (en banc).

So keep in mind both the examples of factors given in the cases and this “powerful” “comparative juror analysis” way of proving discrimination when you get to Step 3 of the Batson inquiry.  It’s a way to really test the prosecutor’s claims.