By Elisabeth Semel, Dagen Downard, Emma Tolman, Anne Weis, Danielle Craig, and Chelsea Hanlock

Racial discrimination is an ever-present feature of jury selection in California. This report investigates the history, legacy, and continuing practice of excluding people of color, especially African Americans, from California juries through the exercise of peremptory challenges. Unlike challenges for cause, each party in a trial has the right to excuse a specific number of jurors without stating a reason and without the court’s approval. In California, peremptory challenges are defined by statute. Historically, the main vice of peremptory challenges was that prosecutors wielded them with impunity to remove African Americans from jury service. These strikes were part and parcel of the systematic exclusion of Blacks from civil society. We found that prosecutors continue to exercise peremptory challenges to remove African Americans and Latinx people from California juries for reasons that are explicitly or implicitly related to racial stereotypes. In 1978, in People v. Wheeler, our state supreme court was the first court in the nation to adopt a three-step procedure intended to reduce prosecutors’ discriminatory use of peremptory challenges. Almost a decade later, in Batson v. Kentucky, the United States Supreme Court approved a similar approach with the goal of ending race-based strikes against African-American prospective jurors. An essential feature of the “Batson/Wheeler procedure” is that it only provides a remedy for intentional discrimination. Thus, at step one, the objecting party must establish a sufficient showing—known as a “prima facie case”—of purposeful discrimination. At step two, if the trial court agrees that the objecting party has made such a showing, the burden of producing evidence shifts to the striking party to give a “race-neutral” reason. At step three, the trial court decides whether the objecting party has established purposeful discrimination. If the court finds that the striking party’s reason was credible, it denies the Batson objection. In his concurring opinion in Batson, Justice Thurgood Marshall warned that Batson’s three-step procedure would fail to end racially discriminatory peremptory strikes. He anticipated that prosecutors would easily be able to produce “race-neutral” reasons at Batson’s second step, and that judges would be ill-equipped to second-guess those reasons. Further, Justice Marshall doubted Batson’s efficacy because the procedure did nothing to curb strikes motivated by unconscious racism—known more often today as implicit bias. Justice Marshall was prescient: 34 years after Batson was decided, prosecutors in California still disproportionately exercise peremptory challenges to exclude African Americans and Latinx people from juries. The Berkeley Law Death Penalty Clinic explored the shortcomings of the Batson procedure. Our report investigates how the California Supreme Court went from a judiciary that championed the eradication of race-based strikes to a court that resists the United States Supreme Court’s limited efforts to enforce Batson. We conclude that Batson is a woefully inadequate tool to end racial discrimination in jury selection.

Berkeley, CA: University of California at Berkeley, School of Law, 2020. 166p.

By Elisabeth Semel , Willy Ramirez, Yara Slaton, Casey Jang and Lauren Havey

In a new report, the Death Penalty Clinic expands on “Whitewashing the Jury Box: How California Perpetuates the Exclusion of Black and Latinx Jurors,” a 2020 report which investigated the history, legacy, and ongoing practice of excluding people of color — especially African Americans — from state juries through prosecutors’ peremptory challenges.

“Guess Who’s Coming to Jury Duty?: How the Failure to Collect Juror Demographic Data Contributes to Whitewashing the Jury Box” continues the clinic’s racial justice research and advocacy by cataloging the states that gather prospective jurors’ self-identified race and ethnicity and those that do not. It examines what courts do with the information, including whether it is provided to the court and counsel for use during jury selection, and the consequences of these choices in furthering or obstructing jury representativeness and diversity. In particular, the report shows why the collection of prospective jurors’ self-identified race and ethnicity is vital to meeting state and federal fair cross-section guarantees and eliminating the discriminatory exercise of peremptory challenges.

Racial/ethnic representation and diversity matter to jury decision-making and hence justice cannot be achieved unless courts take a race-conscious approach to jury composition and selection.

Berkeley, CA: University of California at Berkeley, School of Law, 2024. 89p.