Johnson v. California: the Supreme Court invades the States' authority to establish criminal procedures.

• Author: Smith, Jacob

1. INTRODUCTION

   In Johnson v. California, the United States Supreme Court held that California's procedure for evaluating a defendant's objections to the prosecution's peremptory challenges placed too high of a burden for the defendant to establish a prima facie case of racial discrimination. (1) California's criminal procedure required the defendant to establish a prima facie case by a preponderance of the evidence that the peremptory challenges were impermissibly based on race. (2) The defendant appealed and the California Court of Appeals set aside his conviction, ruling that the trial judge had applied an overly burdensome standard to the defendant's objections. (3) The State appealed to the California Supreme Court, and the court reinstated the defendant's conviction. (4)

   In an eight-to-one decision, the Supreme Court ruled that California's "more likely than not" standard is incompatible with the prima facie inquiry mandated by Batson v. Kentucky. (5) The majority opinion focused solely on the first step in the three-step procedure established in Batson. (6) The narrow issue for the Court to decide was whether Batson allowed California to require the party objecting to a peremptory challenge to show that it is more likely than not that the other party's peremptory challenge, if unexplained, was based on an unconstitutional group bias. (7) The Court determined that California's standard failed to comply with the procedure for analyzing a prima facie case set forth in Batson. (8)

   The Supreme Court incorrectly held that California's standard was inconsistent with the Batson ruling. The Johnson majority evaluated whether California's procedure was identical to the Batson procedure, (9) rather than determining whether California's procedure for evaluating objections to peremptory challenges was constitutional under the Fourteenth Amendment. In doing so, the Johnson majority erroneously concluded that California's procedure was impermissible.

   The Batson decision did not establish a specific procedure that the states were constitutionally required to follow. Rather, the Court explicitly left the decision to the states to determine the best procedure to implement the holding in Batson, giving the states flexibility in responding to objections to racially discriminatory peremptory challenges. (10) Thus, under Batson, California had the power to create its own procedure for trial judges to employ when evaluating a defendant's objection to a peremptory challenge on the grounds of racial discrimination. The Johnson majority has changed the Court's position from offering one possible solution to dictating how states are to proceed. This holding oversteps the Court's authority and allows the Court to legislate state criminal procedures.

   The Court did not have the authority to overrule California's chosen procedure unless the procedure went beyond the bounds of the Fourteenth Amendment. (11) The Johnson majority did not consider whether California's procedure was permissible under the Fourteenth Amendment. California's requirement that a defendant prove his prima facie case by a preponderance of the evidence did not exceed the limits of the Fourteenth Amendment. Thus, the Court overstepped its authority to review state criminal proceedings by demanding that state courts apply the exact procedure outlined in Batson. The Court reached the incorrect holding in Johnson and instead should have affirmed the California Supreme Court's ruling.

2. HISTORICAL BACKGROUND

   1. THE PEREMPTORY CHALLENGE

      During jury selection, attorneys may utilize either challenges for cause or peremptory challenges to strike members of the venire who may favor the opposing side. (12) A challenge for cause requires the striking party to explain a specific reason for removing the potential juror, and the judge must determine whether the reason provides sufficient cause. (13) In contrast, an attorney generally may use a peremptory challenge without giving any reason at all. (14) Peremptory challenges allow a litigant to remove a potential juror for reasons that would not be sufficient to uphold a challenge for cause. (15) The peremptory challenge has existed in American common law since the colonial courts adopted the English right of a defendant to exercise peremptory challenges. (16) Although the peremptory challenge has long been recognized as "one of the most important of the rights secured to the accused," (17) peremptory challenges are not guaranteed by the Constitution. (18) Rather, state and federal statutes provide the specific number and form of peremptory challenges allowed in criminal and civil cases. (19)

   2. CALIFORNIA'S PROCEDURE: PEOPLE V. WHEELER

      In People v. Wheeler, (20) decided prior to Batson, the California Supreme Court addressed the issue of whether a defendant is denied his right to an impartial jury when the prosecution eliminates all of the African-American prospective jurors with its peremptory challenges. (21) The court held that the use of peremptory challenges to eliminate prospective jurors because of a "group bias" violated the defendant's right to jury representing a cross-section of the community under the California Constitution. (22)

      The court recognized that the statute permitting peremptory challenges does not require a party to explain the peremptory strike. (23) However, the court also stated that a party would undermine the representative cross-section requirement of the California Constitution if the peremptory strikes were based on group bias. (24) The court's conclusion required the court to address the difficult question of remedy in circumstances where a peremptory challenge might be impermissibly based on a group bias. (25) Thus, the Wheeler court established a three-step procedure for courts to evaluate objections to peremptory challenges on the basis of group bias. (26)

      The first step required the party in question to object in a timely fashion and establish a prima facie case that the prosecutor's peremptory challenges discriminate. (27) The court explained that the objecting party must meet three requirements to make a prima facie case: 1) the party should make a complete record of the events taking place at his trial; (28) 2) the party must establish that the prosecutor is excluding members of a "cognizable group within the meaning of the representative cross-section rule"; (29) and, 3) the party must show a "strong likelihood" that the prosecutor is challenging the jurors because of a group bias. (30)

      The trial judge must determine whether the objecting party has made a prima facie case. (31) If the party meets his burden, the second step of the process shifts the burden to the challenging party. (32) At this point, the challenging party must prove that the peremptory challenge was not based on a group bias. (33) Though the justification does not have to satisfy a challenge for cause, the reasons must be relevant to the case, parties, or witnesses. (34) The final step in the process requires the trial judge to weigh the evidence by both parties and determine whether the challenging party has met its burden. (35)

   3. BATSON V. KENTUCKY

      In Batson, (36) the United States Supreme Court reexamined its holding in Swain v. Alabama (37) regarding the evidentiary burden on a defendant to challenge the State's use of a peremptory challenge. (38) In Swain, the Court decided that a defendant must show multiple, past occurrences of discriminatory exclusion of African-Americans from the jury process to prove a violation of the Equal Protection Clause. (39) The Batson Court held that a defendant may establish a prima facie case of purposeful discrimination during the selection of the petit jury by relying solely on evidence concerning the peremptory challenges at the defendant's trial. (40)

      The Court determined that the State's use of peremptory challenges to remove individual jurors is subject to the Equal Protection Clause, despite the fact that parties are not usually required to explain the rationale behind a peremptory challenge. (41) Therefore, the Court found that a prosecutor violates the Equal Protection Clause if he challenges prospective jurors solely because of their race. (42) The Court then turned to the issue of determining whether the defendant had met the burden of proving that the prosecution purposefully discriminated in violation of the Equal Protection Clause. (43) The Court concluded that the Swain holding had placed too high of a burden on the defendant. (44) Under Swain, many lower courts had required the defendant to establish proof that the prosecutor repeatedly removed African-Americans over a number of cases before the court would find a violation of the Equal Protection Clause. (45) Reasoning that this interpretation placed a "crippling burden of proof" on the defendant, the Court rejected the Swain analysis for assessing a prima facie case under the Equal Protection Clause. (46)

      After finding that the Swain holding was no longer applicable to these objections, the Court turned to establishing a new procedure for handling objections to peremptory challenges. (47) The majority opinion proceeded to describe a three-step process for the defendant to challenge a prosecutor's peremptory challenges that the defendant believes are based on impermissible racial discrimination. (48) First, the defendant must establish a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." (49) The Court stated that, during this stage, the defendant may rely on the fact that peremptory challenges permit an attorney to discriminate if he wants. (50) The Court gave deference to trial judges to decide, under the circumstances of individual cases, whether the objecting party has made a prima facie case. (51)

      If the trial judge finds that the defendant has made a prima facie case, the burden shifts to the prosecutor and the prosecutor...