Batson challenge in Nevada

2026This court reviews the district court’s Batson findings deferentially and “will not reverse the district court’s decision unless clearly erroneous.” Watson, 1380 Nev. at 775, 335 P.3d at 165 (internal quotation omitted); accord Barlow, 138 Nev. at 218, 507 P.3d at 1197 .} At step one, the party raising the Batson challenge must show “that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Johnson v. California, 545 U.S. 162, 168 (2005) (quoting Batson, 476 U.S. at 93-94 ).

2021Batson objection Keck argues that trial counsel should have made a timely objection under Batson v. Kentucky, 476 U.S. 79 (1986), and J.E.B. v. Alabama, 511 U.S. 127 (1994), to the State's use of peremptory challenges to remove two Black women from the venire.

2018See Libby v. State, 115 Nev. 45 , 54, 975 P.2d 833 , 839 (1999) ("We take this opportunity to instruct the district courts of this state to clearly spell out the three-step analysis when deciding a Batson ... issue."); Kaczmarek , 120 Nev. at 334 , 91 P.3d at 30 ("We have directed Nevada's district courts to 'clearly spell out the three-step analysis' when deciding Batson - type issues."); McCarty v. State, 132 Nev. 218 , 230, 371 P.3d 1002 , 1010 (2016) ("Although the three-step Batson analysis is firmly rooted in our jurisprudence, we continue to see that analysis not being followed.") (Doug

2018See Libby v. State, 115 Nev. 45 , 54, 975 P.2d 833 , 839 (1999) ("We take this opportunity to instruct the district courts of this state to clearly spell out the three-step analysis when deciding a Batson ... issue."); Kaczmarek , 120 Nev. at 334 , 91 P.3d at 30 ("We have directed Nevada's district courts to 'clearly spell out the three-step analysis' when deciding Batson - type issues."); McCarty v. State, 132 Nev. 218 , 230, 371 P.3d 1002 , 1010 (2016) ("Although the three-step Batson analysis is firmly rooted in our jurisprudence, we continue to see that analysis not being followed.") (Doug

2019See Ford v. State, 122 Nev. 398, 403 , 132 P.3d 574, 577 (2006) (finding the first step of the Batson analysis moot under similar circumstances).

2019See Ford v. State, 122 Nev. 398, 403 , 132 P.3d 574, 577 (2006) (finding the first step of the Batson analysis moot under similar circumstances).

2020Our review of such claims is "highly deferential." See Flowers v. Mississippi, U.S. „ 139 S. Ct. 2228, 2244 (2019); Diornampo v. State, 124 Nev. 414, 422-23 , 185 P.3d 1031, 1036-37 (2008) ("In reviewing a Batson challenge, `the trial court's decislon on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded SUPREME (OUR oç NEVADA tO) 1047A Arito .1e) -02730 great deference on appeal."' (quoting Walker v. State, 113 Nev. 853, 867-68 , 944 P.2d 762, 771-72 (1997))).

2020Our review of such claims is "highly deferential." See Flowers v. Mississippi, U.S. „ 139 S. Ct. 2228, 2244 (2019); Diornampo v. State, 124 Nev. 414, 422-23 , 185 P.3d 1031, 1036-37 (2008) ("In reviewing a Batson challenge, `the trial court's decislon on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded SUPREME (OUR oç NEVADA tO) 1047A Arito .1e) -02730 great deference on appeal."' (quoting Walker v. State, 113 Nev. 853, 867-68 , 944 P.2d 762, 771-72 (1997))).

2019Hawkins v. State, 127 Nev. 575, 578 , 256 P.3d 965, 967 (2011); see Purkett v. Elem, 514 U.S. 765, 767 (1995) (summarizing the three-step Batson analysis).

2019Hawkins v. State, 127 Nev. 575, 578 , 256 P.3d 965, 967 (2011); see Purkett v. Elem, 514 U.S. 765, 767 (1995) (summarizing the three-step Batson analysis).

2021See Williams, 134 Nev. at 693, 429 P.3d at 308 CThe outcome of a Batson challenge often turns upon the demeanor of the prosecutor exercising the strike, and the demeanor of the juror being struck—determinations that lie uniquely within the province of the district judge." (citing Hernandez v. New York, 500 U.S. 352, 365 (1991))).

2021See Williams, 134 Nev. at 693, 429 P.3d at 308 CThe outcome of a Batson challenge often turns upon the demeanor of the prosecutor exercising the strike, and the demeanor of the juror being struck—determinations that lie uniquely within the province of the district judge." (citing Hernandez v. New York, 500 U.S. 352, 365 (1991))).

2021See Cooper v. State, 134 Nev. 860 , 862, 432 P.3d 202, 205 (2018) (recognizing that a case's sensitivity to bias is a proper consideration under Batson); Hawkins v. State, 127 Nev. 575, 577 , 256 P.3d 965, 966 (2011) CAppellate review of a Batson challenge gives deference to [t]he trial court's decision on the ultimate question of discriminatory intent." (internal quotation marks omitted)).

2021See Cooper v. State, 134 Nev. 860 , 862, 432 P.3d 202, 205 (2018) (recognizing that a case's sensitivity to bias is a proper consideration under Batson); Hawkins v. State, 127 Nev. 575, 577 , 256 P.3d 965, 966 (2011) CAppellate review of a Batson challenge gives deference to [t]he trial court's decision on the ultimate question of discriminatory intent." (internal quotation marks omitted)).

2021Although counsel's objection was untimely, the trial court considered the objection on the merits and determined that the State provided race- and gender- neutral reasons for using the peremptory challenges that were not a pretext for discrimination.5 See Brass v. State, 128 Nev. 748, 753 , 291 P.3d 145, 149 (2012) (stating that the third step of Batson analysis involves determining if opponent of the peremptory challenge has shown that given race-neutral reasons were pretext for discrimination).

2021Although counsel's objection was untimely, the trial court considered the objection on the merits and determined that the State provided race- and gender- neutral reasons for using the peremptory challenges that were not a pretext for discrimination.5 See Brass v. State, 128 Nev. 748, 753 , 291 P.3d 145, 149 (2012) (stating that the third step of Batson analysis involves determining if opponent of the peremptory challenge has shown that given race-neutral reasons were pretext for discrimination).

2026This court reviews the district court’s Batson findings deferentially and “will not reverse the district court’s decision unless clearly erroneous.” Watson, 1380 Nev. at 775, 335 P.3d at 165 (internal quotation omitted); accord Barlow, 138 Nev. at 218, 507 P.3d at 1197 .} At step one, the party raising the Batson challenge must show “that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Johnson v. California, 545 U.S. 162, 168 (2005) (quoting Batson, 476 U.S. at 93-94 ).

2018"The district court should sustain the Batson objection and deny the peremptory challenge if it is 'more likely than not that the challenge was improperly motivated.' " Id. at 227 , 371 P.3d at 1008 (quoting Johnson v. California, 545 U.S. 162 , 170, 125 S.Ct. 2410 , 162 L.Ed.2d 129 (2005) ).

2022"Because the district court is in the best position to rule on a Batson challenge, its determination is reviewed deferentially, for clear error." Williams, 134 Nev. at 689, 429 P.3d at 306 .

2022"Because the district court is in the best position to rule on a Batson challenge, its determination is reviewed deferentially, for clear error." Williams, 134 Nev. at 689, 429 P.3d at 306 .

2020The parties appear to agree that the State provided both demeanor and nondemeanor explanations for the peremptory challenge. "[W]here only part of the basis for a peremptory strike involves the demeanor of the struck juror, and the district court summarily denies the Batson challenge without making a factual finding as to the juror's demeanor, [this court] cannot assume that the district court credited the State's demeanor argument." Id. at 693, 429 P.3d at 308 (citing Snyder v. Louisiana, 552 U.S. 472, 479 (2008)).

2020The parties appear to agree that the State provided both demeanor and nondemeanor explanations for the peremptory challenge. "[W]here only part of the basis for a peremptory strike involves the demeanor of the struck juror, and the district court summarily denies the Batson challenge without making a factual finding as to the juror's demeanor, [this court] cannot assume that the district court credited the State's demeanor argument." Id. at 693, 429 P.3d at 308 (citing Snyder v. Louisiana, 552 U.S. 472, 479 (2008)).

2022See Cooper v. State, 134 Nev. 860 , 861, 432 P.3d 202, 204 (2018) (discussing the three-step Batson test).

2022See Cooper v. State, 134 Nev. 860 , 861, 432 P.3d 202, 204 (2018) (discussing the three-step Batson test).

2020Our review of such claims is "highly deferential." See Flowers v. Mississippi, U.S. „ 139 S. Ct. 2228, 2244 (2019); Diornampo v. State, 124 Nev. 414, 422-23 , 185 P.3d 1031, 1036-37 (2008) ("In reviewing a Batson challenge, `the trial court's decislon on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded SUPREME (OUR oç NEVADA tO) 1047A Arito .1e) -02730 great deference on appeal."' (quoting Walker v. State, 113 Nev. 853, 867-68 , 944 P.2d 762, 771-72 (1997))).

2020Our review of such claims is "highly deferential." See Flowers v. Mississippi, U.S. „ 139 S. Ct. 2228, 2244 (2019); Diornampo v. State, 124 Nev. 414, 422-23 , 185 P.3d 1031, 1036-37 (2008) ("In reviewing a Batson challenge, `the trial court's decislon on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded SUPREME (OUR oç NEVADA tO) 1047A Arito .1e) -02730 great deference on appeal."' (quoting Walker v. State, 113 Nev. 853, 867-68 , 944 P.2d 762, 771-72 (1997))).

1998See Doyle v. State, 112 Nev. 879, 888 , 921 P.2d 901, 907 (1996) (holding that once steps two and three occur in a Batson analysis, the issue of whether a prima facie case exists is moot).

1998See Doyle v. State, 112 Nev. 879, 888 , 921 P.2d 901, 907 (1996) (holding that once steps two and three occur in a Batson analysis, the issue of whether a prima facie case exists is moot).

2016The district court should sustain the Batson objection and deny the peremptory challenge if it is "more likely than not that the challenge was improperly motivated." Johnson v. California, 545 U.S. 162, 170 (2005); see also Williams v. Beard, 637 F.3d 195, 215 (3d Cir. 2011). 10 C.

2016The district court should sustain the Batson objection and deny the peremptory challenge if it is "more likely than not that the challenge was improperly motivated." Johnson v. California, 545 U.S. 162, 170 (2005); see also Williams v. Beard, 637 F.3d 195, 215 (3d Cir. 2011). 10 C.

2018See Foster v. Chatman, 578 U.S. ----, ----, 136 S.Ct. 1737 , 1742-43, 195 L.Ed.2d 1 (2016) (reversing state supreme court order denying habeas corpus relief to a death-penalty defendant based on post-conviction evidence demonstrating the State defeated the defendant's original Batson challenge by misrepresenting the true bases for its peremptory challenges); cf. also Wearry v. Cain, 577 U.S. ----, ----, 136 S.Ct. 1002 , 1008, 194 L.Ed.2d 78 (2016) (summarily reversing state court decision denying post-conviction relief and noting that, "[t]he alternative to granting review, after all, is forci

2018See Foster v. Chatman, 578 U.S. ----, ----, 136 S.Ct. 1737 , 1742-43, 195 L.Ed.2d 1 (2016) (reversing state supreme court order denying habeas corpus relief to a death-penalty defendant based on post-conviction evidence demonstrating the State defeated the defendant's original Batson challenge by misrepresenting the true bases for its peremptory challenges); cf. also Wearry v. Cain, 577 U.S. ----, ----, 136 S.Ct. 1002 , 1008, 194 L.Ed.2d 78 (2016) (summarily reversing state court decision denying post-conviction relief and noting that, "[t]he alternative to granting review, after all, is forci

2018See Hernandez, 500 U.S. at 365 , 111 S.Ct. 1859 ("As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.' ") (quoting Wainwright v. Witt, 469 U.S. 412 , 428, 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985) ); Reynolds v. United States , 98 U.S. 145 , 156-57, 25 L.Ed. 244 (1878) ("[T]he manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words.

2018See Hernandez, 500 U.S. at 365 , 111 S.Ct. 1859 ("As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.' ") (quoting Wainwright v. Witt, 469 U.S. 412 , 428, 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985) ); Reynolds v. United States , 98 U.S. 145 , 156-57, 25 L.Ed. 244 (1878) ("[T]he manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words.

2018See United States v. Rutledge, 648 F.3d 555 , 559 (7th Cir. 2011) ("The analytical structure established by Batson cannot operate properly if the second and third steps are conflated.").

2018See United States v. Rutledge, 648 F.3d 555 , 559 (7th Cir. 2011) ("The analytical structure established by Batson cannot operate properly if the second and third steps are conflated.").

2018Compare, e.g., United States v. Thompson, 735 F.3d 291 , 300 (5th Cir. 2013) (" Snyder does not require a district court to make record findings of a juror's demeanor where the prosecutor justifies the strike based on demeanor alone."), with United States v. McMath, 559 F.3d 657 , 666 (7th Cir. 2009) (" Snyder makes clear that a summary denial does not allow us to assume that the prosecution's reason was credible; rather, the district court's silence leaves a void in the record that does not allow us to affirm the denial.").

2018Compare, e.g., United States v. Thompson, 735 F.3d 291 , 300 (5th Cir. 2013) (" Snyder does not require a district court to make record findings of a juror's demeanor where the prosecutor justifies the strike based on demeanor alone."), with United States v. McMath, 559 F.3d 657 , 666 (7th Cir. 2009) (" Snyder makes clear that a summary denial does not allow us to assume that the prosecution's reason was credible; rather, the district court's silence leaves a void in the record that does not allow us to affirm the denial.").

2018See Libby v. State, 115 Nev. 45 , 54, 975 P.2d 833 , 839 (1999) ("We take this opportunity to instruct the district courts of this state to clearly spell out the three-step analysis when deciding a Batson ... issue."); Kaczmarek , 120 Nev. at 334 , 91 P.3d at 30 ("We have directed Nevada's district courts to 'clearly spell out the three-step analysis' when deciding Batson - type issues."); McCarty v. State, 132 Nev. 218 , 230, 371 P.3d 1002 , 1010 (2016) ("Although the three-step Batson analysis is firmly rooted in our jurisprudence, we continue to see that analysis not being followed.") (Doug

2018See Libby v. State, 115 Nev. 45 , 54, 975 P.2d 833 , 839 (1999) ("We take this opportunity to instruct the district courts of this state to clearly spell out the three-step analysis when deciding a Batson ... issue."); Kaczmarek , 120 Nev. at 334 , 91 P.3d at 30 ("We have directed Nevada's district courts to 'clearly spell out the three-step analysis' when deciding Batson - type issues."); McCarty v. State, 132 Nev. 218 , 230, 371 P.3d 1002 , 1010 (2016) ("Although the three-step Batson analysis is firmly rooted in our jurisprudence, we continue to see that analysis not being followed.") (Doug

2018Compare, e.g., United States v. Thompson, 735 F.3d 291 , 300 (5th Cir. 2013) (" Snyder does not require a district court to make record findings of a juror's demeanor where the prosecutor justifies the strike based on demeanor alone."), with United States v. McMath, 559 F.3d 657 , 666 (7th Cir. 2009) (" Snyder makes clear that a summary denial does not allow us to assume that the prosecution's reason was credible; rather, the district court's silence leaves a void in the record that does not allow us to affirm the denial.").

2018Compare, e.g., United States v. Thompson, 735 F.3d 291 , 300 (5th Cir. 2013) (" Snyder does not require a district court to make record findings of a juror's demeanor where the prosecutor justifies the strike based on demeanor alone."), with United States v. McMath, 559 F.3d 657 , 666 (7th Cir. 2009) (" Snyder makes clear that a summary denial does not allow us to assume that the prosecution's reason was credible; rather, the district court's silence leaves a void in the record that does not allow us to affirm the denial.").

2018See Snyder v. Louisiana , 552 U.S. 472 , 479, 128 S.Ct. 1203 , 170 L.Ed.2d 175 (2008) (not acknowledging the prosecution's demeanor argument where the trial judge was given two explanations for the strike and "simply allowed the challenge without explanation"); Roach v. State , 79 N.E.3d 925 , 931 (Ind. Ct. App. 2017) ("It is impossible for us to determine which reason the trial court *309 used to deny the Batson challenge or if it found both reasons persuasive.").

2018See Snyder v. Louisiana , 552 U.S. 472 , 479, 128 S.Ct. 1203 , 170 L.Ed.2d 175 (2008) (not acknowledging the prosecution's demeanor argument where the trial judge was given two explanations for the strike and "simply allowed the challenge without explanation"); Roach v. State , 79 N.E.3d 925 , 931 (Ind. Ct. App. 2017) ("It is impossible for us to determine which reason the trial court *309 used to deny the Batson challenge or if it found both reasons persuasive.").

2018See Hernandez, 500 U.S. at 365 , 111 S.Ct. 1859 ("As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.' ") (quoting Wainwright v. Witt, 469 U.S. 412 , 428, 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985) ); Reynolds v. United States , 98 U.S. 145 , 156-57, 25 L.Ed. 244 (1878) ("[T]he manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words.

2018See Hernandez, 500 U.S. at 365 , 111 S.Ct. 1859 ("As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.' ") (quoting Wainwright v. Witt, 469 U.S. 412 , 428, 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985) ); Reynolds v. United States , 98 U.S. 145 , 156-57, 25 L.Ed. 244 (1878) ("[T]he manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words.

2017See Rhyne v. State, 118 Nev. 1, 11 , 38 P.3d 163, 170 (2002) (holding that a failure to raise a Batson challenge below precludes a defendant from raising the issue on appeal).

2017See Rhyne v. State, 118 Nev. 1, 11 , 38 P.3d 163, 170 (2002) (holding that a failure to raise a Batson challenge below precludes a defendant from raising the issue on appeal).

2016See Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir. 1991) (concluding that Batson challenge was untimely where objection to peremptory strikes was made after excluded jurors dismissed and jury had been sworn); see also Watson v. State, 130 Nev., Adv, Op. 76, 335 P.3d 157 , 166 (requiring objecting party to establish a prima facie case of discrimination under first-step of Batson analysis in the district court).

2016See Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir. 1991) (concluding that Batson challenge was untimely where objection to peremptory strikes was made after excluded jurors dismissed and jury had been sworn); see also Watson v. State, 130 Nev., Adv, Op. 76, 335 P.3d 157 , 166 (requiring objecting party to establish a prima facie case of discrimination under first-step of Batson analysis in the district court).

2018Thus, when a Batson objection is erroneously rejected at step one and the record does not clearly reflect the State's reasons for its peremptory strikes, whether because the district court did not inquire into them after ruling against the defendant on step one or because the State declined to provide its reasons unless the district court first made a finding of a prima facie case under step one, this court cannot proceed to steps two and three for the first time on appeal. 4 The silence as to the State's reasons for exercising the two challenged peremptory strikes is particularly problematic

2018Thus, when a Batson objection is erroneously rejected at step one and the record does not clearly reflect the State's reasons for its peremptory strikes, whether because the district court did not inquire into them after ruling against the defendant on step one or because the State declined to provide its reasons unless the district court first made a finding of a prima facie case under step one, this court cannot proceed to steps two and three for the first time on appea1. 4 The silence as to the State's reasons for exercising the two challenged peremptory strikes is particularly problematic

2018See Foster v. Chatman, 578 U.S. ----, ----, 136 S.Ct. 1737 , 1742-43, 195 L.Ed.2d 1 (2016) (reversing state supreme court order denying habeas corpus relief to a death-penalty defendant based on post-conviction evidence demonstrating the State defeated the defendant's original Batson challenge by misrepresenting the true bases for its peremptory challenges); cf. also Wearry v. Cain, 577 U.S. ----, ----, 136 S.Ct. 1002 , 1008, 194 L.Ed.2d 78 (2016) (summarily reversing state court decision denying post-conviction relief and noting that, "[t]he alternative to granting review, after all, is forci

2018See Foster v. Chatman, 578 U.S. ----, ----, 136 S.Ct. 1737 , 1742-43, 195 L.Ed.2d 1 (2016) (reversing state supreme court order denying habeas corpus relief to a death-penalty defendant based on post-conviction evidence demonstrating the State defeated the defendant's original Batson challenge by misrepresenting the true bases for its peremptory challenges); cf. also Wearry v. Cain, 577 U.S. ----, ----, 136 S.Ct. 1002 , 1008, 194 L.Ed.2d 78 (2016) (summarily reversing state court decision denying post-conviction relief and noting that, "[t]he alternative to granting review, after all, is forci

2014"We review the district court's ruling on a Batson challenge for an abuse of discretion." Nunnery v. State, 127 Nev. „ 263 P.3d 235, 258 (2011).

2014"We review the district court's ruling on a Batson challenge for an abuse of discretion." Nunnery v. State, 127 Nev. „ 263 P.3d 235, 258 (2011).

2020Our review of such claims is "highly deferential." See Flowers v. Mississippi, U.S. „ 139 S. Ct. 2228, 2244 (2019); Diornampo v. State, 124 Nev. 414, 422-23 , 185 P.3d 1031, 1036-37 (2008) ("In reviewing a Batson challenge, `the trial court's decislon on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded SUPREME (OUR oç NEVADA tO) 1047A Arito .1e) -02730 great deference on appeal."' (quoting Walker v. State, 113 Nev. 853, 867-68 , 944 P.2d 762, 771-72 (1997))).

2020Our review of such claims is "highly deferential." See Flowers v. Mississippi, U.S. „ 139 S. Ct. 2228, 2244 (2019); Diornampo v. State, 124 Nev. 414, 422-23 , 185 P.3d 1031, 1036-37 (2008) ("In reviewing a Batson challenge, `the trial court's decislon on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded SUPREME (OUR oç NEVADA tO) 1047A Arito .1e) -02730 great deference on appeal."' (quoting Walker v. State, 113 Nev. 853, 867-68 , 944 P.2d 762, 771-72 (1997))).

2019See id. at 226-27, 371 P.3d at 1007-08 (discussing the considerations that may be relevant in determining at step three whether the defendant has proven purposeful discrimination); see also United States v. Vasquez- Lopez, 22 F.3d 900, 902 (9th Cir. 1994) (The one fact supporting [the defendant's] Batson claim was the juror's status as the sole Black prospective juror.

2014State v. Rhone, 229 P.3d 752, 756 (Wash. 2010) (rejecting bright-line rule that peremptory challenge used against member of racially cognizable group is sufficient to establish a prima facie case under Batson because such a rule would be inconsistent with Batson as it "would negate this first part of the analysis and require a prosecutor to provide an explanation every time a member of a racially cognizable group is peremptorily challenged" and would be SUPREME COURT OF NEVADA 11 (0) 1947A 4 .4fr. inconsistent with what Washington court and other courts have held); see also Vasquez-Lopez, 22 F