Many attorneys assume that using a peremptory challenge means they are entitled to reject a potential juror without stating a reason.  One prosecutor found out the hard way that this is not entirely true, particularly when faced with a Batson/Wheeler motion.

In People v. Cisneros, 2015 WL 521878 (Cal. App. 2d. Dist. Feb. 9, 2015), a recent opinion published by the Court of Appeal, a man was accused and convicted of making criminal threats against his girlfriend.  He appealed, alleging that the prosecutor had discriminiated against men in exercising peremptory challenges during jury selection.  The Court of Appeal agreed.

The Court of Appeal found that the prosecutor – who had used seven of her nine peremptory challenges to strike men from the prospective jury – had failed to provide an adequate, gender-neutral reason for exercising two of the challenges after opposing counsel raised Batson/Wheeler motions.  For the two challenges found to be improper, the prosecutor asserted, when asked by the trial court, that she believed the next jurors in line were each a “better fit.”

As the Court of Appeal held, “whenever counsel exercises a peremptory challenge, it necessarily means that he or she prefers the next prospective juror to the one being challenged (whether the individual qualities of the next person are known or unknown).  It is, in effect, no reason at all.  Thus, simply reciting this truism while striking a prospective juror who is member of a protected class is not an adequate nondiscriminatory justification for the excusal, particularly when, as here, in each instance to reach the preferred next prospective juror the prosecutor elected to strike a prospective male juror rather than one of the many prospective female jurors then seated in the jury box.”

However, as the Court of Appeal noted, the “bar [is] not high” – the prosecutor’s explanation for striking another juror for being “kind of rough around the edges” and another for being “overly-analytical” survived Batson/Wheeler motions.  Therefore, every lawyer should have a valid reason in mind when exercising a peremptory challenge, as long as that reason isn’t the next juror would be a “better fit.”