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Noted with Interest: A Sea Change to Peremptory Challenges: The Effects of California’s AB-3070

April 16, 2021

Five minutes before the end of the 2020 legislative session, California legislators passed a law that could drastically alter jury selection in state courts.  Designed to address implicit bias in jury selection, the law changes the framework for deciding whether the exercise of a peremptory challenge is discriminatory.  Proponents note that historical bias has resulted in less diverse juries than the pool presents and say change was overdue.  Others say the law will do more harm than good.   

Starting on January 1, 2022 for criminal trials and January 1, 2026 for civil trials, judges will no longer assess whether the peremptory was exercised as a result of purposeful discrimination, as held in Batson v. Kentucky, 476 U.S. 79 (1986) and People v. Wheeler, 22 Cal. 3d 258 (1978).  Instead, the court must consider whether there is a substantial likelihood an objectively reasonable person—defined as one who is aware of unconscious bias and its impact on the justice system—would view the challenge as related to the juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation.  Thus, rather than assessing actual, subjective motivations, this objective test considers how a reasonable person, sensitive to issues of unconscious bias, would view the challenge.  

California’s new law considers presumptively invalid a laundry list of reasons for striking a prospective juror, including many that prosecutors have used for years to justify a juror’s dismissal: expressing distrust of the criminal justice system, having a negative experience with the justice system, and having a close relationship with someone charged with or convicted of a crime.  Other reasons, such as a prospective juror speaking English as a second language, providing unintelligent or confused answers, or acting inattentively, are presumptively invalid.  That presumption may be rebutted only by clear and convincing evidence and, in the case of confused or inattentive prospects, where the judge observed the conduct.  Because other states will consider this framework, it is important to understand the law and its consequences.  

Reasons for the New Law

California’s Legislature was transparent about its intent, stating that “many of the reasons routinely advanced to justify the exclusion of jurors from protected groups are in fact associated with stereotypes about those groups or otherwise based on unlawful discrimination.”  The bill’s sponsor, California Attorneys for Criminal Justice (CACJ), an association of defense attorneys, noted that the selection process excludes Black and Latinx jurors.  Between 2006 and 2018, California courts of appeal considered 683 cases in which trial courts denied defense attorney motions over the removal of Black and Latinx jurors.  Even if prosecutors’ “race-neutral” reasons for striking jurors largely correlated with racial and/or ethnic stereotypes, courts were unlikely to find a constitutional violation, according to a 2020 report by the Berkeley Law Death Penalty Clinic.  Prosecutors used their strikes to remove Black jurors in nearly 75% of cases, and Latinx jurors in roughly 28% of cases; yet, the appellate courts found constitutional error in only 2.6% of those decisions. 

Principal Changes in C.C.P. § 231.7 

The law identifies improper reasons for striking a prospective juror.  For example, having a child outside of marriage, receiving state benefits, or living in a particular neighborhood are presumed to be invalid reasons for dismissal unless the attorney can show by clear and convincing evidence that an objectively reasonable person would view the reason as unrelated to the juror’s perceived membership in a cognizable group.  The law lists six additional presumptively invalid reasons for striking a juror, including the juror’s dress, attire, or personal appearance, lack of employment or underemployment, and friendliness with a prospective juror of the same group.  

The law also bars grounds that have “historically been associated with improper discrimination in jury selection,” such as that the prospective juror was staring or failing to make eye contact, or exhibited a problematic attitude, body language, or demeanor.  If a party seeks to dismiss such a juror, the trial court must confirm that the behavior occurred, based on the court’s own observations or counsel’s observations, and counsel must explain why such behavior “matters to the case to be tried.”   

Washington State Led the Way, with Illustrative Appellate Results   

California’s new law follows closely behind a change imposed three years ago by the Supreme Court of Washington.  Under General Rule 37, which took effect in April 2018, if a Washington trial court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied.  Washington’s appellate courts have held that reasoning which would have been sufficient under Batson now requires a trial court to deny the peremptory challenge.

For example, in State v. Pierce, 195 Wash. 2d 230, 243-44 (2020), the state Supreme Court reversed and remanded a first-degree murder conviction, finding the trial court improperly allowed the prosecution to strike the only Black juror on the venire after she said she had a brother who was convicted of attempted murder and that the process “left a bad taste in her mouth.”  The prosecutor defended the challenge on grounds that the juror had strong opinions that the system had no treated her brother fairly, a presumptively invalid reason.   Similarly, in State v. Listoe, 475 P. 3d 534, 539 (2020), the court held the State improperly struck the only Black juror on the venire after he said he would question, and have problems following, the law if he disagreed with it.  In State v. Omar, 12 Wash. App. 2d 747, 748 (2020), the court affirmed the trial court’s denial of a peremptory challenge in a robbery case where the juror, of Asian descent, disclosed that she had worked at a bank while it was robbed.  

Criticisms of the New Law

Prosecutors have been vocal opponents of the new law.  The California District Attorneys Association raised several concerns, including that the bill was one-sided, will punish innocuous conduct, and infers ill intent without any basis.  They criticize the presumptively invalid reasons for dismissing a juror as a laundry list created by criminal defense attorneys to ensure that only jurors predisposed to acquit can serve.  For example, jurors who express distrust of the criminal justice system or who’ve had negative experiences with law enforcement are more likely to discount prosecution evidence, including an officer’s testimony.  Prosecutors have also called the law impractical because some of the most common and logical reasons to excuse a potential juror would now be evidence of an attorney’s bias.  Thus, a juror who slept through jury selection or who understands so little English that they are unable to follow the proceedings could not be dismissed through a peremptory challenge. 

Judges have also been critical.  The Association of African American California Judicial Officers requested the bill’s withdrawal, arguing it was premature and should be subject to more review.  And the Alliance of California Judges called AB 3070 problematic, fearing it would make the jury selection process longer and more difficult.  The Alliance advocated instead for eliminating peremptory challenges, which has been echoed by some prosecutors who say that will at least restore parity between them and defense attorneys.   

The impact on civil cases will be significant.  In complex cases, lawyers on both sides of the v. usually want jurors who are interested in the case and willing to sift through conflicting evidence.  It may be difficult to eliminate potential jurors who display behaviors in voir dire that run counter to those goals.  Even on the more mundane side, there will be consequences.  A presumptively invalid reason for dismissal is a prospective juror’s neighborhood.  However, in certain civil cases, such as toxic torts, defense attorneys would want to cite that the juror lives where the chemical spill, gas explosion, or wildfire occurred as a neutral justification for dismissal.  That may not be possible.  

Other Consequences of Amended C.C.P § 237.1 

Attorneys need to be prepared to try cases with less sympathetic, more hostile, or cynical jurors.  Trials will take longer.  Judges’ decisions will be reviewed de novo on appeal.  This may lead to more use of jury questionnaires or additional voir dire to ensure development of a sufficient record as to why race is not a factor in the challenge.  There will be more objections to peremptory challenges and time-intensive record-making.  And the consequences of a successful objection will also slow down the case.  The law requires the judge to start jury selection anew if requested by the objecting party, and declare a mistrial and select a new jury if requested by the defendant after the jury has been impaneled.   

Other States May Follow

Three other state Supreme Courts have called into question their approach to peremptory challenges, which require a showing of intentional discrimination.  Batson may be on the verge of a wave of reformulations in state courts.