Peremptory Challenges in the Post-George Floyd Era

California criminal practitioners are quickly learning that the days of kicking a juror because of the way s/he, sits, smiles, or just because the jurors coming up seem “better” are over. Code of Civil Procedure section 231.7, enacted in 2020 and applicable to all criminal jury trials effective January 1, 2022, prohibits the exercise of peremptory challenges based on race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation. The current law specifically exempts civil jury trials but will apply in civil cases beginning in 2026.

Prior to the enactment of Code of Civil Procedure section 231.7, Code of Civil Procedure section 231.5 prohibited the exercise of a peremptory challenge based on the assumption that the prospective juror was biased merely because of a characteristic defined in Government Code section 11135 (prohibiting discrimination based on race, ethnicity, sexual orientation, etc.) Section 231.5 of the Code of Civil Procedure was enacted in 2000 to codify the opinion issued in People v. Garcia (2000) 77 Cal.App.4th 1269.

In the Garcia case, the prosecutor exercised peremptory challenges against two prospective jurors who, based on their responses in court, were identifiable as lesbians. The defense made a motion under the old Batson/Wheeler standard, a hearing was held, and the trial court found that lesbians and gay men were not a cognizable class under the Batson/Wheeler standard. The Court of Appeal disagreed, ruling lesbians and gay men were a cognizable group that had suffered significant discrimination throughout history. CCP section 231.5 has prohibited the exercise of peremptory challenges based on implied bias associated with a juror’s membership in a cognizable group for the past 20 years.

The problem with CCP section 231.5 is that it is declarative only. It establishes no new procedures for determining whether the exercise of peremptory challenges is based on discriminatory reasons, so trial participants must rely upon the age-old Batson/Wheeler standard.

That standard places the burden on the objecting party to establish a prima facie case that a peremptory challenge is made for a discriminatory purpose. Only if the objecting party has met this burden, does the court inquire into the basis for the exercise of the peremptory challenge. The court disallows the challenge only if it finds intentional bias in the use of the peremptory challenge by the proponent of the challenge.

The state legislature took note of numerous California criminal cases involving the use of discriminatory peremptory challenges, despite CCP section 231.5 prohibiting them. The intent behind CCP section 231.7 was made clear in the notes to the proposed legislation. “… the existing procedure for determining whether a peremptory challenge was exercised on the basis of a legally impermissible reason has failed to eliminate that discrimination. In particular, the Legislature finds that requiring proof of intentional bias renders the procedure ineffective and 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. Therefore, this legislation designates several justifications as presumptively invalid and provides a remedy for both conscious and unconscious bias in the use of peremptory challenges.” (Chapter 318, Statutes of 2020.)

CCP section 231.7 sets forth the way an objection to the exercise of a peremptory challenge can be made, the court’s obligations once an objection has been raised, the standards of proof in determin-ing whether to grant or deny the objection, and the remedies if the court sustains an objection. The objection must be made before the jury is impaneled. The court must hold a hearing out of the presence of the jury on the objection to the challenge and the justification for the challenge.

When the court is ruling on an objection, the court must hear and consider the objecting party’s bases for the objection and the reasons stated by the party exercising the challenge justifying exclusion of the juror. The proponent of the challenge has the burden of convincing the court by clear and convincing evidence that an objectively reasonable person would find the basis of the challenge unrelated to the juror’s membership in one of the cognizable classes.

As should be obvious, the statute flips the burden of proof from the objecting party to the party seeking to excuse the pro-spective juror.
The court determines if there is a substantial likelihood that an objectively reasonable person would view one of the prohibited grounds is a factor in the exercise of the peremptory challenge. The court need not find purposeful discrimination to sustain the objection. (CCP section 231.7(d)(1).) Additionally, if the proponent of the challenge states as justifications for excusing the juror reasons listed in the statute as being inherently suspect (such as skepticism of the criminal justice system or law enforcement, juror’s first language is not English, close association with people who have been arrested/charged with crimes, lack of employment of juror or juror’s family, unmarried with children, dress/attire/personal appearance), the challenge is presumptively invalid. (CCP section 231.7 (e).)

There are several remedies available if the court grants an objection to an improperly exercised peremptory challenge. The court can reseat the juror, provide the objecting party additional challenges, declare a mistrial if requested by the objecting party after a jury has been impaneled, or quash the venire and start selection anew. If the objecting party requests the venire be quashed, it shall be granted.  (CCP section 231.7 (h)(1).)

What is the take-away from the new statute? Take very good notes. All participants need to take very detailed notes both to object to the exercise of a challenge and to defend against such an objection. Counsel can no longer assume to have free rein in the exercise of peremptory challenges. This should be a small price to pay to obtain more diverse jury panels.