A new law that takes effect in California on Jan. 1, 2022 will make it difficult for lawyers trying criminal cases to exclude people of color, or members of other specified groups such as those related to gender, gender identity, sexual orientation or religious affiliation, from sitting on trial juries.
Historically, trial lawyers have been permitted to use a “peremptory challenge” to keep a prospective juror off of a jury, without providing a reason for the exclusion. In the 1970s and 1980s, first the California and then the United States Supreme Courts devised rules known to as the Batson rules, which were intended to keep lawyers from using peremptory challenges to strike jurors because of their race.
The Batson rules have been ineffective. A recent study by the UC Berkeley Law School, entitled “Whitewashing the Jury Box,” found that California prosecutors “still disproportionately exercise peremptory challenges to exclude African Americans and Latinx people from juries.” These challenges are often successful because of shortcomings in the Batson rules. As a result, the California Legislature enacted Assembly Bill 3070, which is patterned after rules adopted in the state of Washington in 2018 to address this problem.
California’s new statute incorporates current research about the nature of racism. It also expands the law to deal with bias against the ethnicity, gender, gender identity, sexual orientation, national origin or religious affiliation of a prospective juror. I will focus on how the new law deals with racial issues.
Assembly Bill 3070 recognizes that much racism is not grounded in overt bigotry, but rather is unconscious or unintentional. The new statute promulgates rules designed to ferret out unconscious bias. Under the new law, once an objection is made to a peremptory challenge, the party exercising the challenge will be required to explain why it was made. If the judge decides there is a “substantial likelihood” a reasonable person would think the strike was made because of the prospective juror’s race, the judge must sustain the objection.
The “substantial likelihood” standard in Assembly Bill 3070 is a major change from existing law. Under the Batson rules, a party objecting to a peremptory challenge must prove the strike was motivated by “purposeful discrimination” — in other words, that it had a “racially discriminatory purpose.” That standard ignores the concept of unconscious bias and perpetuates the disproportionate exclusion of African American and Latinx citizens from jury service. Also, the requirement that an objecting party must prove purposeful discrimination can put a trial judge in an awkward position. A judge’s finding of purposeful discrimination appears to call the attorney who made the peremptory challenge a racist. The “substantial likelihood” standard in Assembly Bill 3070 mitigates this problem by asking a judge to simply decide whether an objective, reasonable person would think the strike was made because of the prospective juror’s race.
Another major change from existing law involves the type of reasons an attorney can use to justify a peremptory challenge. Under the Batson rules, an attorney asked to explain a peremptory challenge is required to give a race-neutral explanation related to the case being tried. The Berkeley Law School study explains that prosecutors are trained to state race-neutral reasons that will satisfy Batson. Ready-made “race-neutral” reasons focus on a variety of factors, such as the prospective juror’s employment status, level of education, residence in a neighborhood with gang activity or knowledge of people who have been convicted of felony offenses. They also include the ability to speak a foreign language, or even the prospective juror’s hairstyle or lack of eye contact during the jury selection process. These factors are technically race-neutral but are easily used to hide racial motives.
Assembly Bill 3070 deals with this problem by creating a presumption that many explanations commonly used to avoid Batson are invalid. The list of presumptively invalid reasons is long. It includes challenges that involve the prospective juror’s neighborhood, lack of employment, underemployment, manner of dress, attire or personal appearance, or expressed belief that law enforcement engages in racial profiling.
When this new law takes effect, it should lead to more diverse juries. That is important for many reasons. Juries represent the community, and our community is diverse. A jury of one’s peers should reflect that diversity. And there are practical reasons why diversity matters. An African American or Native American sitting on a predominately White jury will bring a perspective to the case that White jurors lack. For example, people who live in Southeast San Diego understand that police behave differently in communities of color than they do in La Jolla or Rancho Santa Fe. Finally, people of color should have the same opportunity to serve on juries that White people enjoy.
Wallingford is an appellate criminal defense attorney practicing in San Diego. He is a past president of the Criminal Defense Lawyers Club of San Diego and taught as an adjunct law professor at Thomas Jefferson School of Law for 20 years. He lives in Mission Hills.
This story originally appeared in San Diego Union-Tribune.