Preemptory challenge over ‘lack of life experience’ of Hispanic juror reversed

Jury selection is critical to a successful outcome in criminal cases. For the defense, one juror is sufficient to have a hung jury and obtain a mistrial. The prosecution must convince the entire jury panel unanimously to obtain a guilty verdict. Many appeals cases have addressed improper challenges based on race following a conviction, and recent legislation has set a higher bar for dismissing jurors.

Pursuant to United States Supreme Court’s seminal case on racially-motivated challenges to prospective jurors, Batson v. Kentucky, and the state’s own leading case, People v. Wheeler, prosecutors’ peremptory challenges to jurors were very rarely overcome by a defense objection. Under Batson/Wheeler, a party objecting to a peremptory challenge would have to make a prima facie showing that the challenge was made with a discriminatory purpose. The burden would then shift to the other party to provide a permissible, non-discriminatory explanation for the challenge. Finally, the trial court would determine if purposeful discrimination was the true motivation. On appeal, courts would presume that a prosecutor’s peremptory challenge was properly used.

The California legislature was dissatisfied with the results generated by this regime. Effective in 2022, under new Code of Civil Procedure § 231.7, a court does not need to find purposeful discrimination in order to sustain an objective to a peremptory challenge. Instead, upon objection, the party exercising the challenge must explain its reasons. Many reasons for exercising a challenge are now presumptively invalid and can only be rebutted by clear and convincing evidence that they are unrelated to the prospective juror’s membership in a protected class and bear on his or her ability to be impartial. These presumptively invalid considerations include distrust of law enforcement, having a relative who has been arrested or convicted, lack of employment, and many others.

In determining whether the clear and convincing evidence standard has been met, the statute also instructs that the court must find that it is “highly probable” that the reason given by the challenging party is unrelated to conscious or unconscious bias. The statute goes on to assert that peremptory challenges have “historically been associated with improper discrimination,” when based on factors such as the juror’s inattentiveness, lack of rapport or problematic attitude, body language, or demeanor, and providing unintelligent or confused answers. Perhaps most strikingly, the new statute requires de novo review with little deference to trial court factual findings, and then only if made explicitly on the record. If error is found, it must be presumed prejudicial, i.e. not subject to harmless error analysis, and a new trial must be ordered.

The Second District Court of Appeals recently applied § 231.7 in People v. Uriostegui (No. B325200, April 5, 2024). Uriostegui was convicted of burglary. During jury selection, the prosecutor exercised a peremptory challenge to prospective juror “T.N.” T.N. had a Spanish surname, worked at Taco Bell, but was out on medical leave, and had no prior jury or military service. She disclosed that several of her family members had been incarcerated, but affirmed that this would not impact her ability to be fair and impartial.

Defense counsel objected to the peremptory challenge, asserting that having a relative who was convicted of a crime is a presumptively invalid reason and that T.N. appeared Hispanic. The trial court asked the prosecutor to explain the basis of the challenge. The prosecutor asserted that T.N. lacked life experience, which is not a presumptively invalid reason, based on her limited employment history and education, and that her answers to the questioning by counsel reflected a reluctant, timid, and malleable demeanor. T.N., the prosecutor reasoned, would be likely to be swayed by other jurors rather than reach her own independent conclusions. Though defense counsel pointed out that these demeanor-based observations were also presumptively invalid under § 231.7, the court denied the objection by finding that the prosecutor’s challenge was unrelated to T.N. being Hispanic.

The Court of Appeals reversed Uriostegui’s conviction and ordered a new trial. It found that the prosecutor was effectively permitted to smuggle in presumptively invalid reasons – demeanor, lack of employment, etc. – under the umbrella of “lack of life experience.” In this way, the prosecution avoided having to meet its burden under § 231.7 to show that it was highly probable that a person aware of implicit bias would view these reasons as unrelated to T.N.’s ethnicity. The prosecutor also failed to show that T.N.’s lack of life experience affected her ability to be fair and impartial. The majority was careful to state that it was not accusing the particular prosecutor of intentional bias, but rather vindicating the legislature’s intent that implicit or unconscious bias not infect the jury selection process.

The dissenting judge found that by accepting the prosecutor’s lack of life experience rationale, the trial judge was implicitly making the required findings under § 231.7. The dissent warns that this decision is requiring trial judges who wish to avoid reversal to say, literally, “I find by clear and convincing evidence the reasons of the prosecutor for the peremptory challenge bear on the prospective juror’s ability to be fair and impartial in the case.” The dissent characterizes this as requiring “talismanic,” use of language, thereby “taking literalism into the realm of the absurd.” Uriostegui will be a tool for the defense bar in closely policing the use of prosecution peremptory challenges against jurors with membership in protected classes, and a reminder to prosecutors to ensure that trial judges explicitly make the necessary findings using the words of the statute to avoid the harsh appellate review standards imposed by the statute.

All trial lawyers must be aware of the higher standard a judge must now use to scrutinize a juror being excused. In high-stakes matters, our law firm regularly uses a jury consultant to select the most favorable jurors. Challenges to jurors is based on social science and other data the consultant provides. This provides our firm’s trial lawyers with lawful reasons to exercise each peremptory challenge.