Objections to Peremptory Challenges

Jury selection, or voir dire, is probably the most challenging part of jury trial practice. Proper jury selection demands complete attention and up-to-date knowledge of complex legal rules. Below is an excerpt from a recent 4DCA opinion summarizing how a trial court should respond to objections to peremptory challenges made against prospective jurors on the basis of racial bias.

Code of Civil Procedure section 231.7, effective in criminal trials since January 1, 2022, was enacted “to establish ‘a new process for identifying unlawful bias in the use of peremptory challenges during jury selection’ because studies showed that the existing Batson/Wheeler[5] analysis . . . was inadequate to prevent racial discrimination.” (People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540.) The statute “prohibits the ‘use [of] a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups’.” (Id. at p. 540.) Whereas an objection under Batson/Wheeler could be sustained only if purposeful discrimination were found (People v. Rhoades (2019) 8 Cal.5th 393, 423), “[d]iscrimination in violation of this section need not be purposeful [and] may involve ‘unconscious bias,’ ” which “ ‘includes implicit and institutional biases’ ” (Jimenez, at p. 540).

In response to an objection to the exercise of a peremptory challenge, the challenging party “shall state the reasons the peremptory challenge has been exercised.” (§ 231.7, subd. (c).) “It is then up to the trial court to correctly apply the procedure set forth in section 231.7 when deciding whether to sustain the objection.” (People v. Caparotta (2024) 103 Cal.App.5th 874, 893 (Caparotta).)

The correct statutory procedure depends on the reasons provided. Subdivisions (e) and (g) of section 231.7 describe “presumptively invalid reasons for the exercise of a peremptory challenge” and set out “distinct process[es] by which a court determines whether a presumptively invalid reason can be absolved of that presumption.” (People v. Barnes (2024) 107 Cal.App.5th 560, 578.) If the presumption is not rebutted, the objection must be sustained. (Ibid.) Alternatively, if the challenging party overcomes the presumption—or if the party does not rely on a presumptively invalid basis— the court “evaluate[s] the reasons given to justify the peremptory challenge in light of the totality of the circumstances.” (§ 231.7, subd. (d)(1).) In any event, the court “shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications.” (Ibid.)