WALLINGFORD

Batson rules, a party objecting to a peremptory challenge must prove the strike was motivated by “purposeful discrimination” — in other words, that it had a “racially discriminatory purpose.” That standard ignores the concept of unconscious bias and perpetuates the disproportionate exclusion of African American and Latinx citizens from jury service. Also, the requirement that an objecting party must prove purposeful discrimination can put a trial judge in an awkward position. A judge’s finding of purposeful discrimination appears to call the attorney who made the peremptory challenge a racist.

The “substantial likelihood” standard in Assembly Bill 3070 mitigates this problem by asking a judge to simply decide whether an objective, reasonable person would think the strike was made because of the prospective juror’s race.

Another major change from existing law involves the type of reasons an attorney can use to justify a peremptory challenge. Under the Batson rules, an attorney asked to explain a peremptory challenge is required to give a raceneutral explanation related to the case being tried. The Berkeley Law School study explains that prosecutors are trained to state raceneutral reasons that will satisfy Batson. Readymade “race-neutral” reasons focus on a variety of factors, such as the prospective juror’s employment status, level of education,

residence in a neighborhood with gang activity or knowledge of people who have been convicted of felony offenses. They also include the ability to speak a foreign language, or even the prospective juror’s hairstyle or lack of eye contact during the jury selection process.

These factors are technically race-neutral but are easily used to hide racial motives.

Assembly Bill 3070 deals with this problem by creating a presumption that many explanations commonly used to avoid Batson are invalid. The list of presumptively invalid reasons is long. It includes challenges that involve the prospective juror’s neighborhood, lack of employment, underemployment, manner of dress, attire or personal appearance, or expressed belief that law enforcement engages in racial profiling.

When this new law takes effect, it should lead to more diverse juries. That is important for many reasons. Juries represent the community, and our community is diverse. A jury of one’s peers should reflect that diversity. And there are practical reasons why diversity matters. An African American or Native American sitting on a predominately White jury will bring a perspective to the case that White jurors lack. For example, people who live in Southeast San Diego understand that police behave differently in communities of color than they do in La Jolla or Rancho Santa Fe. Finally, people of color should have the same opportunity to serve on juries that White people enjoy.