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THE ADVOCATE Volume 30, No. 1 January 2008 Batson challenges must be made before the swearing of the jury and the discharge of the remainder of the jury panel. RCr 8.18, Dillard v. Commonwealth, 995 S.W.2d 366 (Ky.1999), Gamble v. Commonwealth, 68 S.W.3d 367 (Ky.2002). The Batson process has three steps: first, the objector must make a prima facie showing of purposeful discrimination in the opponent’s exercise of his or her peremptory strikes. The traditional Batson situation obtains when a defendant is a member of a minority and the jurors being struck are members of the same minority. In that situation, a prima facie case would involve a showing that a) the defendant is a member of a cognizable racial group, b) the prosecution used peremptory strikes to remove jurors of the defendant’s race, and c) the facts and circumstances raise the inference that the prosecutor excluded the jurors on the basis of their race. Remember, though, that under Powers, supra, the defendant no longer has to be of the same race or gender as the excluded jurors. Second, if the court rules that a prima facie case has been made, then the burden shifts to the prosecutor to offer an alternative non-discriminatory explanation of the use of his peremptories. The explanation offered need not rise to the level of justifying a strike for cause, and may not even be particularly plausible. But it must be race- or gender-neutral on its face. The information the prosecutor points to does not have to be proven true, but simply offered in good faith. It can come to the prosecutor through means outside of direct questioning of the juror, such as the impressions or perceptions of counsel, personal knowledge, or jury questionnaires. Commonwealth v. Snodgrass, 831 S.W.2d 176 (Ky.1992). It all depends on the facts and circumstances of each particular situation. Nevertheless, self-serving explanations based merely on claims of intuition or mere disclaimers of any discriminatory motive are not sufficient to overcome a Batson challenge. Washington v. Commonwealth, 34 S.W.3d 376 (Ky.2000). Last, the court must then decide – as it would decide any disputed fact – whether the proffered reasons are, firstly, neutral and reasonable and then it must also decide, secondly, that the reasons are not a pretext for purposeful discrimination. Clear and reasonably specific reasons for legitimately excluding jurors must meet both requirements. Gamble v. Commonwealth, 68 S.W.3d 367 (Ky.2002). Practice Tip: Batson Issues. To preserve the issue on appeal, remember to renew your objection to the Commonwealth’s use of peremptories after the Commonwealth offers its reasons. If the prosecutor gives a reason not evident from the record, move for an evidentiary hearing. State again you do not believe the reasons given were non-discriminatory and object again to the seating of the jury before the jury is sworn. 34 NOTES
CHECKLIST FOR STRIKING JURORS THE ADVOCATE Volume 30, No.1 January 2008 1) Are We On the Record? - The voir dire of the prospective jurors must be recorded and transcribed, or videotaped, and designated as part of the record on appeal. 2) Do We Know Who We’re Talking About? – It is extremely common for appellate attorneys working on an appeal to experience great difficulty identifying which jurors were being discussed during any given motion to strike for cause. The identity of the juror cannot often be inferred from the video or audio record. A good practice is to simply preface your motion to strike with a short statement identifying the juror in question, such as “Your honor this motion is in reference to Mr. Smith, juror no. 22.” Then make your objection. 3) Get to the Point - Conduct as thorough a job of questioning as you are allowed to. General questions of fairness and impartiality are not sufficient. Counsel needs to ask specific questions related to the facts of the case and the theory of defense. Attempt to elicit facts known by the juror or opinions held by the juror that reasonably could be expected to influence her decision. “It often takes detailed questioning to uncover deep-seated biases of which the juror may not be aware. The cursory examination typically conducted by the trial court is often inadequate for this purpose.” Trial Practice Series, Jury Selection, The Law, Art, and Science of Selecting a Jury, 2 nd ed., James J. Gobert, Walter E. Jordon (1992 Cumulative Supplement, p. 23), quoted in Miracle v. Commonwealth, 646 S.W.2d 720, 723 (Ky.1983), (Leibson, J., concurring). 4) Move to Strike - Defense counsel must assert a clear and specific challenge for cause to the prospective juror and must clearly articulate the grounds for the challenge. State the name of the person you are challenging especially if your trial record will be on videotape. Challenge for cause all persons you believe the law requires to be stricken. List every reason that would require removal of the juror. In some appellate opinions, the courts have assessed the bias of jurors by listing several areas of bias which, when combined, required removal for cause. See Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky.1992). 5) Peremptories - You must use all your peremptory challenges and the record must reflect that. Failure to use all of your peremptories waives the right on appeal to object to any jurors who remain on the jury. See, e.g., Baze v. Commonwealth, 965 S.W.2d 817 (Ky.1997). However, the prosecution can agree to give up some of its strikes. Fitzgerald v. Commonwealth, 148 S.W.3d 817 (Ky.2004). If you choose to use your peremptory challenges to remove jurors who should have been struck for cause, put into the record that you are doing so, and state by name the jurors you would have used the peremptories on, if you had not had to use them on the jurors who should have been struck for cause. Or write the names on a note and have it entered into the record. Ask for additional peremptory challenges in order to be able to use your peremptories in the way they were intended. This will preserve the issue for review. 6) Strike Sheets - Be sure the juror strike sheets are made part of the record on appeal. RCr 9.36(4), CR 75.07(4). 7) After Trial - When the defendant did not learn until after the trial that a juror was related to, and living in the same rural area of the county with, the complaining witness’s boyfriend, and was married to the boyfriend’s cousin, the proper procedure was to bring this information to the trial court’s attention in a motion for a new trial. Anderson v. Commonwealth, 864 S.W.2d 909, 911 (Ky.1993). 35 NOTES
Page 1 and 2: The Advocate Journal of Criminal Ju
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TO JURY SELECTION A. Batson issues.
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