Jury Selection, Race, and Code of Civil Procedure 231.7
Making sense of peremptory challenges under California Law
This is part one in a series of posts on the relatively new California law dealing with jury selection.
In this post, I’ll give an overview of the statutory procedure, that is, how an objection under the statute should “play out” during trial. In so doing, I hope to dispel confusion among practitioners.
To date, I haven’t seen a particularly effective “cheat sheet” or quick-guide for trial attorneys; everything concerning 231.7 is complicated, heady appellate fare. Which sucks, since trial attorneys know voir dire is (usually) conducted under incredibly pressing circumstances in which the attorney must act and think quickly. What is needed is conceptual clarity: a quick resource to guide the trial attorney who endeavors to make an objection under the statute.
This post will not deal with the scope or construction of 231.7’s key terms and phrases. I will save that for a later post. Nor will this post cover some of the thornier legal issues which have arisen since the statute passed in 2019. And I will reserve a future post on the fraught history that is discriminatory jury selection in California and Fresno County.
I’m not going to reproduce, verbatim, the statutory language. That wouldn’t do anything. You’d be better off simply looking up the statute. As written, 231.7 is confusing; it contains at least three legal standard, sundry terms of art, and is long. I restate my goal: clarity.
Step one: object to the prosecutor’s exercise of a peremptory challenge.
231.7 stands for a basic rule: it is illegal to exercise a peremptory challenge on the basis of a prospective juror’s membership, or perceived membership, in a cognizable class. “cognizable class”—which is used several times in the statute—always means the same thing: race, ethnicity, gender, gender identity, national origin, sexual orientation, or religious affiliation. 231.7(a).
Example: “Your honor, I object to the DA striking that juror because it was based on that prospective juror’s membership in a cognizable class under CCP 23.17(a).”
step two: state a basis.
After stating your objection under the statute’s general directive in subdivision (a), you must state a basis for your objection. This is easy: look at the prospective juror the DA is trying to kick and identify the “cognizable group”—that is, protected characteristic—to which the juror belongs. (231.7(b).)
Example: “legal basis is the prospective juror is, or appears to be, Latina. That is, I object on the cognizable class of race. I also note her Latino surname. I also object on an independent cognizable basis of gender: the prospective juror is a woman.
Step three: the prosecutor must state reasons for the challenge
At this point, the prosecutor must state the reasons why she kicked the prospective juror. The developing caselaw on this point is fascinating, but beyond the ken of this post. For now, remember one very important thing: listen very closely to what the prosecutor says. I encourage you to ask for readback from the court reporter and take detailed notes. (231.7(c).)
Note that when the court evaluates the prosecutor’s reasons, it analysis is limited to what the prosecutor actually says. The court cannot speculate or imply reasons that don’t exist. So again, listen carefully. And object if the trial judge tries to “spoon feed” the DA reasons for the challenge (I’ll explain this in a later post.)
Example: “your honor, since I’ve identified a lawful basis, or cognizable class, for my objection, I move to compel the prosecutor to state her reasons for the challenge on the record in accordance with the statute.”
The court must evaluate the prosecutor’s reasons by placing those reasons in one of three categories.
Now it’s the court’s turn. The court must evaluate the prosecutor’s reasons by placing them into a specific statutory category: (1) presumptively invalid reasons, (2) demeanor-based, presumptively invalid reasons, or (3) valid reasons. A distinct legal framework applies to each discrete category. It’s crucial that you, the public defender, argue for placing the DA’s stated reasons in either the (1) presumptively invalid, or (2) demeanor-based categories.
Example: (the court): “I find that the DA’s stated reasons are presumptively invalid, and therefore subject those reasons to the following legal test under 231.7(e).” However, I find that one of the DA’s reasons, that prospective juror #7 gave evasive answers, is presumptively valid, and accordingly scrutinize that reason under 231.7(d)(1).”
The following legal-framework applies to the DA’s reasons depending on where those reasons “fall” under 231.7. I will take each in turn.
A. Presumptively invalid reasons
The following reasons, if given by the DA as justification for kicking a juror, are presumptively invalid (231.7(e).):
Expressing a distrust of or having a negative experience with cops or the legal system
having a close relationship with people who've been stopped, arrested, or convicted.
a juror’s neighborhood
having a child outside of marriage
receiving state benefits
not being a native english speaker
having the ability to speak another language
a juror’s dress, attire, or personal appearance
employment in a field that is disproportionately occupied by people in a “cognizable class.”
A juror, or their family’s, lack of employment
a juror’s friendliness with another juror in the same “cognizable class.”
catchall: any reason that applies to a juror not of the same cognizable class as the challenged juror, but who were not the subject of a kick by that party.
If the court determines the DA’s stated reasons fall within this category, those reasons are presumptively invalid, and your objection must be sustained, unless the DA can show two things by clear and convincing evidence: First, that an objectively reasonable person would view the reasons as unrelated to the juror’s membership in a cognizable group; and, second, the reasons articulated bear on the juror’s ability to be fair and impartial in the case. (231.7(f).)
Let me state this test another way: the presumption of invalidity is rebutted by the DA only if the court determines the peremptory challenge is unrelated to the juror’s membership in a cognizable class AND, instead, those reasons bear on the juror’s ability to be fair and impartial in the case.
In another post I’ll explore the—fascinating!—case law fleshing out this test! For now, your goal is to place the DA’s reasons within this presumptively invalid category.
B. Presumptively invalid, demeanor-based reasons.
There is another set of presumptively invalid reasons for kicking a juror. They are presumptively invalid because historically-linked to racism and bias (231.7(g).):
the juror was inattentive, or staring or failing to make eye contact
the juror exhibited a lack of rapport or problematic attitude, body language or demeanor
the juror provided unintelligent or confused answers
Any reason given by the DA that falls under this category is invalid unless (1) the trial court is able to confirm that the asserted behavior occurred based on the court’s own observations or the observations of counsel for the objecting party. Even with that confirmation, (2) the DA shall explain why the asserted demeanor, or manner in which the juror answered the questions, matters to the case to be tried.
Here is what I will say about these two categories—presumptively invalid + historically invalid. The California legislature made express findings that these reasons were associated with racial and ethnic groups and woman. So they (presumptively) outlawed them. Good stuff!
C. Presumptively valid reasons
Finally, lets say the court rules the DA’s stated reasons are not presumptively or historically invalid, that is, that on their face they appear kosher. (231.7(d)(1).) Those reasons are still subjected to judicial scrutiny. So you should always object to a peremptory challenge!
If the court holds the DA’s reasons are presumptively valid, those reasons are run through the following test:
The court will evaluate the DA’s reasons in light of the totality of the circumstances to determine whether there is a substantial likelihood that an objectively reasonable person would view membership in a cognizable class as a factor in the use of the peremptory challenge. If so, defense objection must be sustained.
Defense attorneys: memorize these four steps. The statute is clunky; but if we can quickly understand it conceptually then the statute shows its true power. In my view, 231.7 is absolutely revolutionary. Whereas the sin que non of peremptory challenges used to be the requirement of purposeful discrimination, 231.7 does not require that defense attorney’s prove the DA INTENTIONALLY discriminated.
In my next post, I will explore the burgeoning caselaw surrounding 231.7.