Mass. R. Evid. 1116
If the judge concludes that the reason for the peremptory challenge is both adequate and genuine, the peremptory challenge of the prospective juror may be exercised. If the judge concludes that the reason for the peremptory challenge was either inadequate or not genuine, the peremptory challenge must be denied.
Mass. Guid. Evid. 1116
This section deals strictly with peremptory challenges and does not address challenges for cause. See G. L. c. 234A, § 67A.
Subsection (a). This subsection is derived from Batson v. Kentucky, 476 U.S. 79, 96 (1986), and Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979). "Defendants have a right under the United States Constitution and the Massachusetts Declaration of Rights to be tried by an impartial jury." Commonwealth v. Obi, 475 Mass. 541, 550 (2016). See Commonwealth v. Jones, 477 Mass. 307, 319 (2017) (although Federal inquiry focuses on prospective jurors' right to be free from discrimination in participating in administration of law, and Massachusetts Declaration of Rights focuses on defendants' right to be tried by fairly drawn juries of their peers, "the result appears to be the same"). All parties, including the Commonwealth, are entitled to a jury that has not been unfairly skewed. See Commonwealth v. Kozubal, 488 Mass. 575, 582-583 (2021); Commonwealth v. Prunty, 462 Mass. 295, 308 (2012) (ensuring nondiscriminatory use of peremptory challenges is intended to benefit both sides in a criminal trial); Anderson-Mole v. University of Mass., 49 Mass. App. Ct. 723, 724 (2000) (civil litigants entitled to jury that is not "unfairly skewed"). Potential jurors are also entitled to the opportunity to serve on a jury without fear of discrimination. Prunty, 462 Mass. at 308.
When a peremptory challenge is improperly used to exclude a juror based on a discriminatory motive, the defendant's "constitutional right to a jury selected free from discrimination" has been violated, and a new trial is required. Commonwealth v. Maldonado, 439 Mass. 460, 467 (2003). See Commonwealth v. Robertson, 480 Mass. 383, 397 (2018); Commonwealth v. Burnett, 418 Mass. 769, 772 (1994). Cf. Commonwealth v. Williams, 481 Mass. 443, 455 (2019) (improper allowance of challenge for cause does not warrant automatic reversal because presumption is that juror was "replaced by another fair and impartial juror"). Likewise, "[a]n erroneous denial of a peremptory challenge is a structural error, requiring reversal without a showing of prejudice." Commonwealth v. Oberle, 476 Mass. 539, 545 (2017); Commonwealth v. Hampton, 457 Mass. 152, 164 (2010). See Gates v. Flood, 57 Mass. App. Ct. 739, 742-743 (2003) (improper disallowance of two peremptory challenges required new trial).
Protected Groups. The terms "discrete community group," "protected group," and "protected class" reflect the language contained in Article 1 of the Declaration of Rights of the Constitution of the Commonwealth, as amended by Article 106 of the Amendments to the Massachusetts Constitution (Equal Rights Amendment), and include sex, sexual orientation, race, color, creed, and national origin. Commonwealth v. Carter, 488 Mass. 191, 201-203 (2021); Soares, 377 Mass. at 488 n.33. Contrast Commonwealth v. Lopes, 478 Mass. 593, 597-598 (2018) (young adults not protected group); Commonwealth v. Acen, 396 Mass. 472, 477-478 (1986) (non-English speakers and noncitizens not protected groups); Commonwealth v. Matthews, 406 Mass. 380, 389 (1990) (suburban parents and caretakers of adolescent children not protected groups); and Commonwealth v. Evans, 438 Mass. 142, 149-150 (2002), cert. denied, 538 U.S. 966 (2003) (college students not protected group). "[Article] 12 prohibits bias in jury selection not only based on race or gender independently, but also based on a combination thereof." Commonwealth v. Ortega, 480 Mass. 603, 605 (2018). While Commonwealth v. Carter resolved whether peremptory challenges based on sexual orientation are unconstitutional, the Supreme Judicial Court has still "not considered the question whether the exercise of a peremptory challenge to remove a juror . . . because the juror was transgendered would violate the guarantees of art. 12 or the equal protection clause." Commonwealth v. Smith, 450 Mass. 395, 405 (2008). In considering whether the party opposing the challenge has made a sufficient preliminary showing, the court should not group "members of all minority ethnic or racial groups . . . together" but instead consider whether the party has demonstrated discrimination against "particular, defined groupings in the community." Commonwealth v. Jackson, 486 Mass. 763, 772 (2021), quoting Lopes, 478 Mass. at 600 n.5.
The party opposing the exercise of a peremptory challenge generally must demonstrate that the challenged juror is a member of a protected group. Commonwealth v. Suarez, 59 Mass. App. Ct. 111, 114 (2003). See Commonwealth v. Obi, 475 Mass. 541, 550-551 (2016) (judge's observation that juror wore headscarf traditionally worn by Muslim women and similar to that worn by Muslim victim was sufficient to establish juror's membership in protected group). If there is a reasonable question about whether a prospective juror belongs to a protected class, the trial judge must assume membership in the class for purposes of the first step in the Batson - Soares analysis. Commonwealth v. Robertson, 480 Mass. 383, 395 (2018). Cf. Ortega, 480 Mass. at 607 n.8 (persons belonging to various "minority ethnic or racial groups" may not be "lumped together" when assessing whether peremptory challenge is improper).
Even though it may have a racially disparate impact, the Commonwealth's practice of checking CORI records of prospective jurors is not unconstitutional where there is no evidence of discriminatory purpose or intent. Commonwealth v. Grier, 490 Mass. 455, 468-469 (2022).
Subsection (b). Either a party or the judge, sua sponte, may initially raise the issue of a potentially improper peremptory challenge. Commonwealth v. Maldonado, 439 Mass. 460, 463 (2003). See Commonwealth v. Oberle, 476 Mass. 539, 545-547 (2017) (judge raised issue of improper challenge, found pattern of improper challenges, and denied exercise of peremptory challenge sua sponte); Commonwealth v. LeClair, 429 Mass. 313, 322 (1999) ("immaterial" whether issue is initially raised by judge or opposing party).
At each stage of the analysis, the trial judge makes explicit findings on the record, particularly when determining whether a proffered reason for a peremptory challenge is adequate and genuine. Maldonado, 439 Mass. at 465. However, "judges have 'broad discretion' to seek explanations for peremptory challenges 'without having to make the determination that a pattern of improper exclusion exists.'" Commonwealth v. Robertson, 480 Mass. 383, 396 n.10 (2018), quoting Commonwealth v. Lopes, 478 Mass. 593, 598 (2018).
Timing of the Objection. To preserve the issue of an improper peremptory challenge for appellate review, the objection to the peremptory challenge must be made as soon as the basis for the objection is apparent. Commonwealth v. Smith, 450 Mass. 395, 406 (2008) (trial judge's obligation to assess propriety of peremptory challenge is not triggered where counsel fails to object or assert that pattern of improper exclusion has been established); Commonwealth v. Colon-Cruz, 408 Mass. 533, 550 (1990) (a record in which a party has not had an opportunity to explain the use of peremptory challenges is inadequate to raise a challenge to an allegedly impermissible peremptory challenge). See also Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 434-435 (2016) (where judge raises issue concerning propriety of peremptory challenge sua sponte, party must object to judge's ruling to preserve issue on appeal).
Subsection (b)(1). This subsection is derived from Commonwealth v. Sanchez, 485 Mass. 491 (2020). There is a presumption that the exercise of a peremptory challenge is proper, which is rebutted upon a prima facie showing of discriminatory intent. Commonwealth v. Ortega, 480 Mass. 603, 606 (2018). In Sanchez, the Supreme Judicial Court "retire[d] the language of 'pattern' and 'likelihood'" found in Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979), and adopted the clearer formulation of the first stage as set forth in Batson v. Kentucky, 476 U.S. 79, 93-94 (1986), which considers whether "the totality of the relevant facts gives rise to an inference of discriminatory purpose." Sanchez, 485 Mass. at 492, 511.
The first-stage burden is "minimal." Sanchez, 485 Mass. at 510. "[R]ebutting the presumption of propriety is not an onerous task" and is appropriately characterized "as being merely a burden of production, not persuasion." Commonwealth v. Jones, 477 Mass. 307, 321 (2017), citing Sanchez v. Roden, 753 F.3d 279, 302 (1st Cir. 2014). See Commonwealth v. Robertson, 480 Mass. 383, 391 (2018) (describing the burden of establishing a prima facie case as a "relatively low bar"); Commonwealth v. Maldonado, 439 Mass. 460, 464 n.4 (2003) (burden of making prima facie showing "ought not be a terribly weighty one"). See also Jones, 477 Mass. at 321-322 (given "relative ease of making required showing, judges should "think long and hard" before deciding not to require explanation); Commonwealth v. Issa, 466 Mass. 1, 11 n.14 (2013) (failing to require explanation creates "significant and needless risk of reversal"). Even without an explicit finding that a prima facie showing of impropriety has been made, a trial judge's request that a party explain the reasons for a peremptory challenge constitutes an implicit recognition that the presumption has been rebutted. Commonwealth v. Kozubal, 488 Mass. 575, 582-583 (2021); Commonwealth v. Mason, 485 Mass. 520, 530 (2020).
Evaluating Discriminatory Purpose. Although not an exhaustive list, the Supreme Judicial Court has enumerated several factors that may be considered in determining whether an inference of discriminatory purpose has been established.
- Prior Use of Challenges. The trial judge may consider both the number and the percentage of members of a discrete group who have been the subject of prior peremptory challenges. Sanchez, 485 Mass. at 512. Where a "distinct pattern of disparate strikes" is shown, that alone is sufficient to satisfy the first-step burden." Id. at 512 n.13. See Jones, 477 Mass. at 322-323 (prosecutor's challenge of five African-American jurors while accepting only one raised prima facie case of discrimination); Commonwealth v. Hamilton, 411 Mass. 313, 316 (1991) (prima facie showing based on challenge to 67 percent of African-American and only 14 percent of white jurors). In some circumstances, a single challenge to a juror belonging to a protected group may be sufficient to rebut the presumption. Commonwealth v. Prunty, 462 Mass. 295, 306 (2012). See also Issa, 466 Mass. at 9 (single challenge may rebut presumption particularly where juror is only venire member in a specific protected class); Commonwealth v. Rodriguez, 457 Mass. 461, 472 (2010) (removal of sole Hispanic juror adequate to rebut presumption). But see Commonwealth v. Roche, 44 Mass. App. Ct. 372, 377-378 & n.3 (1998) (peremptory challenge of member of protected class does not, by itself, constitute prima facie showing of impropriety).
- Nature of Questioning or Investigation. The trial judge may consider whether there is "any evidence of disparate questioning or investigation of prospective jurors" that might suggest that a member of a discrete group has been treated differently. Sanchez, 485 Mass. at 512. See Flowers v. Mississippi, 139 S. Ct. 2228, 2246-2248 (2019) (inference of discriminatory purpose raised by prosecutor's questions and statements during voir dire).
- Comparison with Other Challenged and Seated Jurors. The trial judge may examine any similarities and differences in characteristics such as age, educational level, occupation, or previous interactions with the criminal justice system between jurors who were and were not challenged, or those who are and are not members of the protected group. Sanchez, 485 Mass. at 512. See Commonwealth v. Lopes, 478 Mass. 593, 603-604 (2018) (although a close question, judge could reasonably find that "common denominator" for challenges was age, not race).
- Group Membership in Common. The trial judge may consider whether the challenged juror is a member of the same protected group as a defendant, victim, or other party to the case. Commonwealth v. Issa, 466 Mass. 1, 9 (2013). See Commonwealth v. Obi, 475 Mass. 541, 550-551 (2016) (prima facie case met where challenged juror was Muslim, defendant was Muslim, and no other prospective jurors appeared to be Muslim).
- Composition of Seated Jurors. The trial judge may consider whether other members of a protected group have been seated on the jury, "giving due consideration to the fact that the seating of some members of a protected class does not immunize future peremptory challenges against that class from judicial scrutiny." Sanchez, 485 Mass. at 512. See Commonwealth v. Carter, 488 Mass. 191, 197-198 (2021). (reversible error not to require race-neutral explanation where judge "relied all but exclusively on the racial composition of the previously seated jurors"); Commonwealth v. Ortega, 480 Mass. 603, 607 (2018) (presence of seated juror of protected class not dispositive on issue of prima facie showing); Commonwealth v. Robertson, 480 Mass. 383, 397 (2018) (judge erred in finding no prima facie showing of discrimination in challenge of black men even though two black women had been seated); Commonwealth v. Oberle, 476 Mass. 539, 546-547 (2017) (prima facie showing of discrimination against women despite presence of women on jury and in venire); Commonwealth v. Maldonado, 439 Mass. 460, 463 n.3 (2003) ("the ultimate issue is not whether there is a 'pattern' of excluding a discrete group, but whether the challenge made to any member of the panel is impermissibly based on the juror's membership in [a protected group]").
- Absence of Apparent Race-Neutral Reason. Judges may consider whether the record contains a race-neutral reason for the challenge. Robertson, 480 Mass. at 394; Commonwealth v. Jones, 477 Mass. 307, 324 (2017). Careful consideration must be given to "strikes based on minor offenses, particularly those involving young black men who have been subject to disparate treatment in the criminal justice system." Commonwealth v. Jackson, 486 Mass. 763, 780 n.27 (2021).
The Supreme Judicial Court has recognized that the judge's consideration of an objective, group-neutral explanation for the peremptory challenge in the first stage of the analysis overlaps with the analysis at the second and third stages. Jones, 477 Mass. at 322 n.25. "This list of factors is neither mandatory nor exhaustive; a trial judge and a reviewing court must consider 'all relevant circumstances' for each challenged strike." Id. at 322 n.24, citing Batson v. Kentucky, 476 U.S. 79, 96 (1986). See, e.g., Commonwealth v. Issa, 466 Mass. 1, 10 (2013) (judge did not abuse his discretion in considering other relevant circumstances, including prosecutor's statement that challenged juror looked familiar).
Subsection (b)(2). If the trial judge finds that the prima facie case has been met, the party who sought to exercise the challenge must provide a justification for that challenge that is "group neutral," or unrelated to the prospective juror's membership in a protected group. Commonwealth v. Scott, 463 Mass. 561, 570 (2012); Commonwealth v. Prunty, 462 Mass. 295, 306 (2012). While general assertions are not enough, the explanation does not have to rise to the level of specificity required to remove a juror for cause. Commonwealth v. Cavotta, 48 Mass. App. Ct. 636, 638 (2000) (attitude, bearing, and demeanor of juror during voir dire may constitute sufficient basis for peremptory removal). The group-neutral reason for the peremptory challenge must be supplied by the party, not the trial judge. See Commonwealth v. Fryar, 414 Mass. 732, 740-741 (1993), cert. denied, 522 U.S. 1033 (1997) (reversible error for judge to supply group-neutral reason instead of waiting to hear from party exercising challenge).
Subsection (b)(3). The third stage requires the judge to determine whether the reason provided was a bona fide reason for exercising the challenge or a mere pretext to avoid admitting facts of group discrimination. Commonwealth v. Soares, 377 Mass. 461, 491, cert. denied, 444 U.S. 881 (1979). The party opposing the challenge is entitled to be heard as to the adequacy and genuineness of the reason. Commonwealth v. Maldonado, 439 Mass. 460, 464 n.6 (2003). The trial judge must make findings concerning whether a party's explanation is both "adequate" and "genuine." Id. at 464. While the soundness of the reason may be a strong indicator of its genuineness, the two prongs of the analysis are not identical. Id. at 466.
The judge must make specific findings to permit an appellate court to review for abuse of discretion the judge's determination whether a party's stated reason for a peremptory challenge was both adequate and genuine. See Commonwealth v. Oberle, 476 Mass. 539, 546-547 & n.4 (2017); Commonwealth v. Benoit, 452 Mass. 212, 220 (2008) (trial judge's specific findings aid appellate courts in ascertaining whether judge "considered both the adequacy and the genuineness of the proffered explanation, and did not conflate the two into a simple consideration of whether the explanation was 'reasonable' or 'group neutral'" [quotation omitted]). See also Commonwealth v. Rodriguez, 457 Mass. 461, 470-471 (2010); Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 432 (2016). An appellate court is "not in a position to give deference to the judge's findings" when the record does not reflect the trial judge's independent evaluation and determination of the adequacy and credibility of the challenging party's proffered reason for the peremptory challenge. Benoit, 452 Mass. at 223.
Subsection (b)(3)(A). Adequacy refers to the soundness of the proffered explanation. Commonwealth v. Maldonado, 439 Mass. 460, 464-465 (2003). An explanation is adequate if it is clear and reasonably specific, personal to the juror and not based on the juror's group affiliation, and related to the particular case being tried. Id. See Commonwealth v. Nom, 426 Mass. 152, 155 (1997) (explanation that prospective juror's prior domestic arrest was reason for challenge provided basis on factor other than juror's race); Commonwealth v. Barnoski, 418 Mass. 523, 533-534 (1994) (specific examples of juror's demeanor unrelated to juror's ethnicity); Commonwealth v. Kalila, 103 Mass. App. Ct. 582, 583-585 (2023) (potential juror's mother employed by police department whose officers were witnesses). Cf. Commonwealth v. Rosa-Roman, 485 Mass. 617, 637 (2020) (juror's misunderstanding of question about whether she had an "interest" in case, even if it showed "lack of working knowledge of vocabulary of criminal law," was not valid basis for exercise of challenge). Subjective challenges, such as a challenge to a juror's looks or gestures, or a party's "gut feeling," should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination. See, e.g., Commonwealth v. Obi, 475 Mass. 541, 550-551 (2016) (defense counsel's "gut feeling" that juror would not be sympathetic to defendant was insufficient); Commonwealth v. Benoit, 452 Mass. 212, 219 (2008) (inquiry must determine whether explanation is belatedly contrived to avoid admitting facts of group discrimination); Commonwealth v. Rodriguez, 431 Mass. 804, 808-809 (2000) ("not liking her looks" was insufficient gender-neutral reason for peremptory challenge); Commonwealth v. Calderon, 431 Mass. 21, 27 n.4 (2000) (juror smiling at defense counsel did not justify challenge). Likewise, assumptions based on occupation or social or economic status should be carefully scrutinized for implicit bias or stereotype. Rosa-Roman, 485 Mass. at 637. Mere affirmations of good faith are not sufficient. See Commonwealth v. Carleton, 36 Mass. App. Ct. 137, 144 (1994). A trial judge's determination that the explanation offered by the party exercising the peremptory challenge is adequate is within the sound discretion of the judge and will not be disturbed so long as there is support for the ruling in the record. Commonwealth v. Scott, 463 Mass. 561, 570 (2012).
Subsection (b)(3)(B). An explanation is genuine "if it is in fact the reason for the exercise of the challenge." Commonwealth v. Maldonado, 439 Mass. 460, 465 (2003). The mere denial of an improper motive is inadequate to establish the genuineness of the explanation. Id. A justification that is reasonable in the abstract must be rejected if the judge does not believe that it reflects the challenging party's actual thinking. See Commonwealth v. Oberle, 476 Mass. 539, 546-547 (2017) (in domestic violence case in which defendant was charged with assaulting his female partner, trial judge did not abuse his discretion in finding a lack of genuineness of defendant's proffered reasons for peremptory challenge of woman juror after all three of defendant's previous peremptory challenges had been of women); Commonwealth v. Prunty, 462 Mass. 295, 309 (2012) (trial judge warranted in finding that defendant's challenge, allegedly based on juror's occupation, was not genuine); Commonwealth v. LeClair, 429 Mass. 313, 323 (1999) (affirming judge's disallowance of peremptory challenge after he determined that it was disingenuous).
If the trial judge determines that the peremptory challenge was improper, "the judge has the authority to fashion relief without declaring a mistrial." Commonwealth v. Reid, 384 Mass. 247, 254-255 (1981) (defendant's improper use of peremptory challenges of prospective male jurors authorized trial judge to strike all jurors and begin with a new venire).
Allowing the Peremptory Challenge. A peremptory challenge will be allowed if the judge concludes that the reason for the challenge was both adequate and genuine. See, e.g., Commonwealth v. Rodriguez, 457 Mass. 461, 473-474 (2010) (explanation that challenge to prospective juror was based on juror's inability to follow instructions and experience in court system was sufficient and credible); Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 436-437 (2016) (explanation that juror's failure to accurately report criminal record was adequate and genuine).
Denying the Peremptory Challenge. The exercise of a peremptory challenge is not allowed if the trial judge finds that the explanation for the challenge is either not adequate or not genuine. See Commonwealth v. Povez, 84 Mass. App. Ct. 660, 665 (2013) (explanation that juror was challenged because his father worked as janitor in Federal court was adequate but not genuine). See also Commonwealth v. Prunty, 462 Mass. 295, 310 (2012) (explanation that peremptory challenge was used to remove juror based on her occupation was not genuine); Commonwealth v. Calderon, 431 Mass. 21, 26-28 (2000) (challenge based primarily on juror's husband's occupation not adequate); Commonwealth v. Carvalho, 88 Mass. App. Ct. 840, 844 (2016) (explanation for challenge that "looking at the juror's experience, I don't feel that she would be a person that would be fair and equitable to my client" was not genuine).