New England Biz Law Update
Many lawyers associate Batson challenges only with criminal trials, or those involving race discrimination.
But any party in a civil or criminal case may make a Batson challenge regardless of the issue at trial or the juror’s race, gender or national origin. The basis for the challenge derives from the juror’s own equal protection rights.
History of the ‘Batson’ challenge
In a jury trial, the judge asks the jury panel a set of voir dire questions designed to root out jurors with preconceived biases about the case. After hearing jurors’ responses, the lawyers have a limited number of peremptory challenges and unlimited challenges “for cause.”
Counsel must show juror bias to win a “for cause” challenge, but may generally exercise peremptory challenges without providing any reason. United States v. Annigoni, 96 F.3d 1132, 1144 (9th Cir. 1996).
The term “Batson challenge” arises from the seminal case of Batson v. Kentucky, in which the U.S. Supreme Court created a constitutional limitation on peremptory challenges in criminal cases.
The court held that the Equal Protection Clause prohibits a prosecutor from using a peremptory challenge against a potential juror solely because of the juror’s race. Batson v. Kentucky, 476 U.S. 79, 79-80 (1986).
The court later expanded Batson to allow challenges in criminal trials on the basis of gender and national origin. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994); Hernandez v. New York, 500 U.S. 352, 371 (1991).
In Edmonson v. Leesville Concrete Co., Inc., the court extended Batson to private litigants in civil cases. 500 U.S. 614, 619 (1991). The Edmonson court held “whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 127 (1994).
The court reasoned that a private litigant exercising peremptory challenges qualified as a state actor, and that the opposing party had the necessary standing to bring a race-based equal protection claim on a juror’s behalf. Edmonson, 500 U.S. at 619.
Corporate entities also may raise Batson challenges. Alaska Rent-A-Car, Inc. et al. v. Avis Budget Group, Inc., FKA Cendant Corporation, et al. 738 F.3d 960, 967 (9th Cir. 2013).
In Powers v. Ohio, the court discarded Batson’s original requirement that the defendant share the stricken juror’s same racial identity. Batson, 476 U.S. at 96; Powers, 499 U.S. 400, 411-17 (1991) (white male had standing to challenge prosecutor’s dismissal of seven African-American jurors); United States v. Mensah, 737 F.3d 789, 797 (1st Cir. 2013) (black defendant objected to peremptory challenge against Asian-Americans), cert. denied, U.S. 134 S.Ct. 1912 (2014). See also Georgia v. McCollum, 505 U.S. 42, 59 (1992).
Procedure after a ‘Batson’ challenge
A Batson challenge prompts a three-part inquiry:
1) the party opposing the peremptory challenge must establish a “prima facie case” of discrimination;
2) the proponent of the strike must offer a neutral explanation for choosing to strike the juror; and
3) the court will decide whether the party raising the Batson challenge has proved purposeful discrimination.
Purkett v. Elem, 514 U.S. 765, 767 (1995). The party making the Batson challenge has the burden of persuasion.
1. The challenging party’s prima facie case
To establish a prima facie showing, a party making a Batson challenge must prove that 1) the stricken juror is in a protected group; 2) the opposing party used a peremptory strike against a member of that protected group; and 3) the facts and circumstances create an inference that the opposing party struck the juror because of race, gender or national origin.
The prima facie case is not onerous, but need only raise an inference of discriminatory purpose. Johnson, 545 U.S. at 169; Aspen v. Bissonnette, 480 F.3d 571, 574 (1st Cir. 2007).
The court cannot require a justification for the peremptory challenge until the opposing party establishes the prima facie case. United States v. Stewart, 65 F.3d 918, 925 (11th Cir. 1995) (“No party challenging the opposing party’s use of a peremptory strike — whether that party be the government, a criminal defendant, or a civil litigant — is entitled to an explanation for that strike, much less to have it disallowed, unless and until a prima facie showing of racial discrimination is made.”); Odunukwe v. Bank of America, 335 Fed. Appx. 58, 60 (1st Cir. 2009); United States v. Guerrero, 595 F.3d 1059, 1063-1064 (9th Cir. 2010) (no prima facie case where race or ethnicity of challenged juror was unknown).
2. The race-neutral reason for the peremptory challenge
The burden then shifts to require the party attempting to strike the juror to provide a protected-class-neutral justification. Purkett v. Elem, 514 U.S. at 767. Mere denial of a discriminatory purpose is insufficient to meet the burden of production. Id. at 768-769.
However, the striking party need only provide a reason based on something other than the juror’s race, gender or ethnicity. Hernandez v. New York, 500 U.S. at 360.
Courts have held that acceptable reasons to justify peremptory challenges included age; immaturity; marital status; mental capacity; criminal history of the juror or family members; negative opinions about police; reluctance to serve; demeanor; language barriers; past victimization; past or current employment; and past jury service.
A party seeking to persuade the court that a neutral justification triggered the strike should be ready to show it applied that justification consistently. Miller-El v. Dreke, 545 U.S. 231 (2005) (overturning conviction where prosecutor’s explanation for striking black juror was not applied to white jurors); Doss v. Frontenanc, 14 F.3d 1313, 1316-1317 (8th Cir. 1994) (race-neutral reason is pre-textual if striking party fails to strike other jurors with same characteristic).
3. Court evaluation as to purposeful discrimination
In the third step, the court evaluates whether the moving party proved purposeful discrimination by a preponderance of the evidence. The court considers the totality of circumstances and often relies on credibility determinations.
The party asserting the Batson challenge does not need to share the same protected group as the excluded juror, but the judge may weigh that factor in considering the justification’s persuasiveness. Richards v. Relentless, Inc., 341 F.3d 35, 45 (1st Cir. 2003).
When addressing a Batson challenge, courts also have considered the final composition of the jury compared to the initial panel; the number of available peremptory strikes; the race of jurors excused by peremptory challenge or cause; who made the strikes and what order; and the percentage of the racial group in the jury pool and community. United States v. Beverly, 369 F.3d 516, 527 (6th Cir. 2004).
In evaluating whether a race-neutral justification is pre-textual, courts have considered: whether the reasons related to the case’s facts; a lack of meaningful questioning generally, or to the challenged juror; disparate treatment in questioning and selection; waiver of peremptory challenges after excluding all members of a group; and a claim that the juror’s group may be biased, when the trait has not shown to apply to the challenged juror specifically.
The Court of Appeals reviews the trial court’s findings on the question of intentional discrimination for clear error. Hernandez v. New York, 500 U.S. at 364-365; Sanchez v. Roden, 808 F.3d 85, 89 (1st Cir. 2015), cert. denied, 136 S.Ct. 1685 (2016).
The trial court’s Batson findings receive substantial weight “because the trial judge is in the best position to evaluate context, nuance, and the demeanor of the prospective jurors and the attorneys.” Richards v. Relentless, Inc., 341 F.3d at 45.
Which ‘cognizable groups’ are protected by ‘Batson’?
Batson challenges are not limited to members of minority groups. United States v. Allen-Brown, 243 F.3d 1293, 1297 (11th Cir. 2001). See, e.g., Brown v. Kinney Shoe Corp., 237 F.3d 556, 562-563 (5th Cir. 2001) (Batson challenge to exclusion of white jurors); Moeller v. Blanc, 276 S.W.3d 656 (Tex. 2008) (in medical-malpractice case, white patient had standing to raise Batson challenge to doctor’s peremptory strike of African-American juror).
In some jurisdictions, Batson challenges can be based on a juror’s religion, ethnicity and sexual orientation. In the 1st Circuit, defining a cognizable group for equal protection purposes considers “whether others, by treating those people unequally, put them in a distinct group.” Murchu v. United States, 926 F.2d 50, 54 (1st Cir. 1991); Gray v. Brady, 592 F.3d 296, 306 (a prima facie inference of discrimination against black jurors in jury selection does not necessarily require a race-neutral explanation for peremptory challenge against Hispanic juror because “non-whites” are not a cognizable group); U.S. v. Marino, 277 F.3d 11, 23 (no evidence that Italian-Americans are a cognizable group subject to discriminatory treatment).
So far, the 1st Circuit has never held that Batson applies to discrimination based on religion or sexual orientation in jury selection. United States v. Girouard, 521 F.3d 110, 113 (1st Cir. 2008) (declining to resolve whether Batson extends to religious discrimination).
Similarly, to date, Batson challenges may not be based on physical disability or other characteristics normally subject to “rational basis review.” J.E.B., 511 U.S. at 143.
Relevance of the litigation’s subject matter to the ‘Batson’ challenge
The underlying litigation need not be focused on race, gender or national origin for a party to raise a successful Batson challenge. Miller v. Eby Realty Group, No. 01-2333-CM, 2003 U.S. Dist. LEXIS 15866, at *12 (D. Kan. Aug. 20, 2003).
In fact, litigants regularly use Batson in civil litigation, including personal injury, malpractice and contract cases. Hidalgo v. Fagen, Inc., 206 F.3d 1013 (10th Cir. 2000). Ashabraner v. Bowers, 753 N.E. 2d 662, 663 (Ind. 2001) (new trial in negligence case on grounds that the court erred in denying white plaintiff’s Batson challenge of strike of black juror, despite that parties’ race was not relevant to the claims); Oblander v. USSAA Cas. Ins. Co., 2000 Ala. Civ. App. LEXIS 497 (Dec. 1, 2000) (new trial in an insurance case based on error in not granting the white plaintiffs’ Batson challenge of strike of black jurors).
Thus, a party in a pregnancy discrimination case may raise a Batson challenge where opposing counsel has stricken African-American jurors. The shared interest between the challenging party and the juror in eliminating courtroom discrimination and protecting the juror’s equal protection rights provides the necessary standing to raise a Batson challenge.
Conclusion
A trial lawyer should be prepared to raise or defend against a Batson challenge during jury selection in any trial, regardless of the subject matter of the trial or the race or gender of the parties.
Ideally, the trial lawyer should be armed with a bench brief discussing the jurisdiction’s case law on this issue. Counsel should keep track of all juror responses to the voir dire questions in order to support the non-discriminatory reasons for striking jurors in the event of a challenge.
Lynn A. Kappelman is a partner at Seyfarth Shaw and co-chair of the firm’s national trial practice group. Christina Duszlak is a third-year law student at Boston University School of Law and a summer fellow at the firm.
