Batson Basics: How Does It Protect?

November 8, 2016
By Hanging Out with Carl Gunn


  • Batson requires a three-step inquiry: (1) the defendant must make a prima facie case of discriminatory intent; (2) the state must then offer a race-neutral justification for the challenge; and (3) the trial court must decide whether the defendant has proven purposeful discrimination.
  • The Supreme Court has stated that the requirement of establishing an initial prima facie case is not intended to create an “onerous” burden, and the Ninth Circuit has described the burden as “minimal”; it may be satisfied by showing mere statistical disparities in treatment.
  • The defendant does have a burden of persuasion at the third step, but it is merely the preponderance of evidence burden, and the defendant need show only that the challenge was “motivated in substantial part by a discriminatory intent.”



In my second “Batson basics” post, I noted the case law establishing that a racial impact isn’t sufficient for a peremptory challenge rationale to violate Batson.  There has to be discriminatory intent.  That presents the question of how does Batson protect the jurors it’s supposed to protect.  How do courts ferret out discriminatory intent when it’s there?

Batson suggested and it’s now well established that there’s a three-step inquiry.  As summarized in a recent Ninth Circuit opinion:

In the first Batson step, “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.”  Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005) (citation and internal quotation marks omitted).  Second, if the prima facie case is made out, the state must offer “permissible race-neutral justifications for the strike[ ].”  Id.  Third, the trial court must decide whether, given all the relevant facts, the defendant has proven purposeful discrimination.  See Crittenden v. Ayers, 624 F.3d 943, 958 (9th Cir. 2010).

Currie v. McDowell, 825 F.3d 603, 605 (9th Cir. 2016).  See also Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008) (quoting Miller-El v. Dretke, 545 U.S. 231, 277 (2005) (Thomas, J., dissenting), and Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003)).

Application of these steps will be highly case-specific and has generated a veritable mountain of case law, but a few general points can be made about each step.  Initially, Step 1 – requiring the defendant to make out a prima facie case – was not intended to create a particularly “onerous” burden.  Johnson v. California, 545 U.S. at 170.  It most definitely does not rise to the level of the “more likely than not” or “preponderance of evidence” burden of proof.  Id. at 168, 170, 173.  It “is a burden of production, not a burden of persuasion.”  Green v. Lamarque, 532 F.3d 1028, 1029 (9th Cir. 2008).  The Ninth Circuit has described the burden as “minimal.”  Shirley v. Yates, 807 F.3d 1090, 1101 (9th Cir. 2015); Johnson v. Finn, 665 F.3d 1063, 1071 (9th Cir. 2011).  See also United States v. Collins, 551 F.3d 914, 920 (9th Cir. 2009) (describing burden as “small”).  All that is required is “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.”  Johnson, 545 U.S. at 170.  A low standard is appropriate because the next step is simply getting answers to the questions raised by the prima facie case.  As the Supreme Court explained in Johnson:

The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process.  The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless speculation when a direct answer can be obtained by asking a simple question.

Id. at 172 (citations omitted).

In fact, mere statistical disparities in treatment have been found sufficient to establish a prima facie case.  The Ninth Circuit has found a prima facie showing made in “multiple cases,” Johnson v. Finn, 665 F.3d at 1070 (citing cases), where a prosecutor “strikes all or most veniremembers of the defendant’s race,” Shirley v. Yates, 807 F.3d at 1101.  And not all minority jurors need be struck for a prima facie case to be found; “[t]hat one black juror was eventually seated does weigh against an inference of discrimination, but ‘only nominally so.’” Shirley, 807 F.3d at 1102 (quoting Montiel v. City of L.A., 2 F.3d 335, 340 (9th Cir. 1993)).  The Ninth Circuit has “found an inference of discrimination where the prosecutor strikes a large number of panel members from the same racial group, or where the prosecutor uses a disproportionate number of strikes against members of a single racial group.”  United States v. Collins, 551 F.3d at 921.

While the ability to show such disparate treatment statistically may be enough, it is not required, especially where a lack of diversity makes it impossible to show.  While the court “does not hold against the government the fact that the panel lacked African-American members,” “[t]he lack of diversity in the panel, along with the removal of each African-American, . . . does justify close scrutiny of the challenge.”  Collins, 551 F.3d at 920-21.  Other factors the court may look to include the striking of members of other protected groups, the questions asked and statements made by the prosecutor to the venire, and a “fail[ure] to ‘engage in meaningful questioning of any of the minority jurors.’” Id. at 921 (quoting Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir. 2002)).  A court may also compare non-minority jurors whom the prosecutor does not strike, using what is called “[c]omparative juror analysis,” and infer discriminatory intent when the prosecutor did not strike non-minority jurors with the same characteristics as the minority jurors the prosecutor did strike.  Collins, 551 F.3d at 921.

There are also some general points to be noted regarding the second Batson step – requiring the prosecutor to articulate race-neutral reasons for the challenge once a prima facie case has been established.  First, at this step, the reasons the prosecutor gives need only be race-neutral, for ‘[t]he second step of this process does not demand an explanation that is persuasive, or even plausible.”  Purkett v. Elem, 514 U.S. 765, 767-68 (1995).  On the other hand, there may occasionally be juror characteristics which track race so closely that they serve as a surrogate for race.  See, e.g., Hernandez v. New York, 500 U.S. 352, 371 (1991) (plurality opinion) (recognizing that “[i]t may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis”); United States v. Bishop, 959 F.2d 820, 825-27 (9th Cir. 1992) (residence in largely African-American community).  See also Purkett, 514 U.S. at 769 (holding challenge of juror because juror wearing beard was race-neutral because wearing beards not a characteristic “peculiar to any race” (quoting EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 190 n.3 (3d Cir. 1980)).

It is also important to remember that “it does not matter that the prosecutor might have had good reasons . . . [;] [w]hat matters is the real reason [the jurors] were stricken.”  Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir. 2004), quoted in Johnson v. California, 545 U.S. at 172.  In a related vein, where reasons are being provided after the fact because the issue is being addressed for the first time in a habeas proceeding or on remand after an appeal, the government must provide not just speculation, but must prove the prosecutor’s actual reasons.  Paulino v. Harrison, 542 F.3d 692, 699-700 (9th Cir. 2008).  It may do this with circumstantial evidence, such as a prosecutor’s testimony that his general jury selection approach would have motivated him to strike the veniremember for an identified race-neutral reason, Shirley v. Yates, 807 F.3d at 1105, but the prosecutor must be able to identify general principles the prosecutor applied in that particular trial, see id. at 1106 (distinguishing Paulino v. Harrison).

There are also some general points to be noted regarding the third Batson step – the determination of whether the prosecutor has in fact engaged in discrimination.  Put another way, assuming the prosecutor has offered some race-neutral reason or reasons, is the race-neutral reason a pretext or cover-up for what was really discrimination?  The defendant does bear the ultimate burden of persuasion on this question, but only by a preponderance of the evidence.  Crittenden v. Ayers, 624 F.3d at 958.  In addition, the Ninth Circuit has stated, pointing to Supreme Court cases, that “courts should engage in a rigorous review of a prosecution’s use of peremptory strikes.”  Boyd v. Newland, 467 F.3d 1139, 1149 (9th Cir. 2004) (citing Johnson v. California and Miller-El v. Dretke).

Because “the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge,” Hernandez v. New York, 500 U.S. at 365, and race-neutral reasons for a challenge often invoke a juror’s demeanor, appellate review of trial court findings about intent is only for clear error.  Snyder v. Louisiana, 552 U.S. 472, 477 (2008).  Appellate courts have hardly acted as a rubber stamp, however, as illustrated by the intensive analysis of the record and reversal in Snyder itself.  See id. at 479-84.

It’s also important to recognize what the question about discriminatory intent is.  Some circuits have adopted a “mixed motives” test where the court asks whether “the challenged decision would have been made even absent the impermissible motivation, or, put another way, that the discriminatory motivation was not a ‘but for’ cause of the challenged decision.”  Cook v. LaMarque, 593 F.3d 810, 814 (9th Cir. 2010) (quoting Kesser v. Cambra, 465 F.3d 351, 372 (9th Cir. 2006) (en banc) (Wardlaw, J., concurring), and collecting cases).  The Supreme Court’s Snyder opinion suggests a different test, however, stating that it is enough for the defendant to show the challenge was “motivated in substantial part by a discriminatory intent.”  Snyder, 552 U.S. at 485, quoted in Cook, 593 F.3d at 814-15.  And this is the test the Ninth Circuit has adopted.  See Cook, 593 F.3d at 815.

Finally, this showing needs to be made as to only one of the prosecutor’s challenges.  This is because “the Constitution forbids striking even a single prospective juror for a discriminatory purpose.”  United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994), quoted in Snyder, 552 U.S. at 478.  Once a Batson violation is found on one challenge, the inquiry can stop and the defendant is entitled to a new trial.

That’s it for this Batson basic.  One last Batson post next week.