Batson challenge in South Dakota

2014Under the third part of the Batson analysis, the “court’s findings are afforded great deference, as the analysis depends highly on credibility.” Id. ¶ 18 (citing United States v. Maxwell, 473 F.3d 868, 872 (8th Cir.2007)).

2014Under the third part of the Batson analysis, the “court’s findings are afforded great deference, as the analysis depends highly on credibility.” Id. ¶ 18 (citing United States v. Maxwell, 473 F.3d 868, 872 (8th Cir.2007)).

2026State v. Guthmiller, 2014 S.D. 7, ¶ 12 , 843 N.W.2d 364, 368 (alterations in original) (quoting State v. Scott, 2013 S.D. 31, ¶ 16 , 829 N.W.2d 458 , 465–66). [¶35.] The State contends, for the first time on appeal, that the defense failed to make a prima facie showing to satisfy the first step under the Batson framework.

2026State v. Guthmiller, 2014 S.D. 7, ¶ 12 , 843 N.W.2d 364, 368 (alterations in original) (quoting State v. Scott, 2013 S.D. 31, ¶ 16 , 829 N.W.2d 458 , 465–66). [¶35.] The State contends, for the first time on appeal, that the defense failed to make a prima facie showing to satisfy the first step under the Batson framework.

1993See Hernandez, 500 U.S. at ___ , 111 S.Ct. at 1875 , 114 L.Ed.2d at 416 (Stevens, J., dissenting). ("[T]he Court ... errs when it concludes that a defendant's Batson challenge fails whenever the prosecutor advances a nonpretextual justification that is not facially discriminatory." Id. ) Rather, it seems to have announced a new rule and overruled Batson without even saying so by shifting the burden to the defendant to prove that a discriminatory intent is inherent in the prosecutor's explanation.

1993See Hernandez, 500 U.S. at ___ , 111 S.Ct. at 1875 , 114 L.Ed.2d at 416 (Stevens, J., dissenting). ("[T]he Court ... errs when it concludes that a defendant's Batson challenge fails whenever the prosecutor advances a nonpretextual justification that is not facially discriminatory." Id. ) Rather, it seems to have announced a new rule and overruled Batson without even saying so by shifting the burden to the defendant to prove that a discriminatory intent is inherent in the prosecutor's explanation.

2000See United States v. Contreras-Contreras, 83 F.3d 1103 (9thCir.l996) (applying plain error analysis to defendant’s Batson claim raised for the first time on appeal).

2000See United States v. Contreras-Contreras, 83 F.3d 1103 (9th Cir.1996) (applying plain error analysis to defendant's Batson claim raised for the first time on appeal).

2013So, with that I guess we’ll proceed. [¶ 16.] The test to determine whether a Batson violation has occurred is well-settled: First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Batson v. Kentucky, ] 476 U.S. [79,] 93-94, 106 S.Ct. 1712 [, 1721, 90 L.Ed.2d 69 (1986)] (citing Washington v. Davis, 426 U.S. 229, 239-242 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976)).

2013So, with that I guess we’ll proceed. [¶ 16.] The test to determine whether a Batson violation has occurred is well-settled: First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Batson v. Kentucky, ] 476 U.S. [79,] 93-94, 106 S.Ct. 1712 [, 1721, 90 L.Ed.2d 69 (1986)] (citing Washington v. Davis, 426 U.S. 229, 239-242 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976)).

2000While I do not agree that Honomichl v. Leapley, 498 N.W.2d 636 (S.D.1993), necessarily controls the Batson issue here, I believe our examination of the question requires lesser scrutiny on habeas corpus review.

2000While I do not agree that Honomichl v. Leapley, 498 N.W.2d 636 (S.D.1993), necessarily controls the Batson issue here, I believe our examination of the question requires lesser scrutiny on habeas corpus review.

2026There are no “‘magic words’ the trial court must use in order to fulfill a Batson analysis.” Guthmiller, 2014 S.D. 7, ¶ 16 , 843 N.W.2d at 369 (quoting State v. Ryan, 2008 S.D. 94 , ¶ 13, 757 N.W.2d 155, 159 ).

2026There are no “‘magic words’ the trial court must use in order to fulfill a Batson analysis.” Guthmiller, 2014 S.D. 7, ¶ 16 , 843 N.W.2d at 369 (quoting State v. Ryan, 2008 S.D. 94 , ¶ 13, 757 N.W.2d 155, 159 ).

2014Third, [i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination. 3 State v. Scott, 2013 S.D. 31, ¶ 16 , 829 N.W.2d 458, 465-66 (alteration in original) (quoting Johnson v. California, 545 U.S. 162, 168 , 125 S.Ct. 2410, 2416 , 162 L.Ed.2d 129 (2005)) (internal citations and quotation marks omitted). [¶ 13.] In this case, the following dialogue is the entire record of the Batson challenge and the circuit court’s analysis.

2014Third, [i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination. 3 State v. Scott, 2013 S.D. 31, ¶ 16 , 829 N.W.2d 458, 465-66 (alteration in original) (quoting Johnson v. California, 545 U.S. 162, 168 , 125 S.Ct. 2410, 2416 , 162 L.Ed.2d 129 (2005)) (internal citations and quotation marks omitted). [¶ 13.] In this case, the following dialogue is the entire record of the Batson challenge and the circuit court’s analysis.

2012State v. Overbey, 2010 S.D. 78, ¶ 11 , 790 N.W.2d 35, 40 (quoting In re H.L.S., 2009 S.D. 92 , ¶ 11, 774 N.W.2d 803, 807-08 ). [¶ 33.] The test for examining a Batson challenge consists of three steps. “[A] defendant must first establish a prima facie case of purposeful discrimination by showing he or she is a member of a cognizable racial group and the State used its peremptory challenges to remove members of the defendant’s race from the potential jury candidates.” Mulligan, 2007 S.D. 67 , ¶ 33, 736 N.W.2d at 820 (quoting State v. Owen, 2007 S.D. 21 , ¶ 45, 729 N.W.2d 356, 369 ).

2012State v. Overbey, 2010 S.D. 78, ¶ 11 , 790 N.W.2d 35, 40 (quoting In re H.L.S., 2009 S.D. 92 , ¶ 11, 774 N.W.2d 803, 807-08 ). [¶ 33.] The test for examining a Batson challenge consists of three steps. “[A] defendant must first establish a prima facie case of purposeful discrimination by showing he or she is a member of a cognizable racial group and the State used its peremptory challenges to remove members of the defendant’s race from the potential jury candidates.” Mulligan, 2007 S.D. 67 , ¶ 33, 736 N.W.2d at 820 (quoting State v. Owen, 2007 S.D. 21 , ¶ 45, 729 N.W.2d 356, 369 ).

2026When attempting to make a prima facie case, “‘[t]he defendant must point to more than the bare fact of the removal of certain venirepersons and the absence of an obvious valid reason for the removal’ before the prosecution is required to offer a race-neutral reason for the strike.” United States v. Young, 129 F.4th 459, 466 (8th Cir. 2025) (quoting United States v. Young-Bey, 893 F.2d 178, 180 (8th Cir. 1990)).

2026When attempting to make a prima facie case, “‘[t]he defendant must point to more than the bare fact of the removal of certain venirepersons and the absence of an obvious valid reason for the removal’ before the prosecution is required to offer a race-neutral reason for the strike.” United States v. Young, 129 F.4th 459, 466 (8th Cir. 2025) (quoting United States v. Young-Bey, 893 F.2d 178, 180 (8th Cir. 1990)).

2026In Young, the Eighth Circuit held the following language to be insufficient to establish a prima facie case: “Our position is that these are three strikes from the [G]overnment that are Native American people, and we’re making a Batson challenge.” Id. at 466–67 (alteration in original). [¶36.] Here, the language used by the defense in an attempt to make a prima facie case is remarkably similar.

2026In Young, the Eighth Circuit held the following language to be insufficient to establish a prima facie case: “Our position is that these are three strikes from the [G]overnment that are Native American people, and we’re making a Batson challenge.” Id. at 466–67 (alteration in original). [¶36.] Here, the language used by the defense in an attempt to make a prima facie case is remarkably similar.

2026Because this issue was not presented to the circuit court, the State has waived this issue on appeal.2 See State v. Stanley, 2017 S.D. 32 , ¶ 26, 896 N.W.2d 669, 678 (“This Court will not address arguments that are raised for the first time on appeal.” (citation omitted)). [¶38.] In the second step of the Batson framework, once the defense has established a prima facie case of discrimination, the State must “explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes.” Guthmiller, 2014 S.D. 7, ¶ 12 , 843 N.W.2d at 368 (citation omitted).

2026Because this issue was not presented to the circuit court, the State has waived this issue on appeal.2 See State v. Stanley, 2017 S.D. 32 , ¶ 26, 896 N.W.2d 669, 678 (“This Court will not address arguments that are raised for the first time on appeal.” (citation omitted)). [¶38.] In the second step of the Batson framework, once the defense has established a prima facie case of discrimination, the State must “explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes.” Guthmiller, 2014 S.D. 7, ¶ 12 , 843 N.W.2d at 368 (citation omitted).

2026State v. Guthmiller, 2014 S.D. 7, ¶ 12 , 843 N.W.2d 364, 368 (alterations in original) (quoting State v. Scott, 2013 S.D. 31, ¶ 16 , 829 N.W.2d 458 , 465–66). [¶35.] The State contends, for the first time on appeal, that the defense failed to make a prima facie showing to satisfy the first step under the Batson framework.

2026State v. Guthmiller, 2014 S.D. 7, ¶ 12 , 843 N.W.2d 364, 368 (alterations in original) (quoting State v. Scott, 2013 S.D. 31, ¶ 16 , 829 N.W.2d 458 , 465–66). [¶35.] The State contends, for the first time on appeal, that the defense failed to make a prima facie showing to satisfy the first step under the Batson framework.

2013See People v. Davis, 368 Ill.App.3d 17 , 305 Ill.Dec. 848 , 856 N.E.2d 653, 655 (2006).

2013See People v. Davis, 368 Ill.App.3d 17 , 305 Ill.Dec. 848 , 856 N.E.2d 653, 655 (2006).

2013Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. 476 U.S. at 94 , 106 S.Ct. 1712 ; see also Alexander v. Louisiana, 405 U.S. 625, 632 , 92 S.Ct. 1221 , 31 L.Ed.2d 536 (1972).

2013Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. 476 U.S. at 94 , 106 S.Ct. 1712 ; see also Alexander v. Louisiana, 405 U.S. 625, 632 , 92 S.Ct. 1221 , 31 L.Ed.2d 536 (1972).

2012State v. Overbey, 2010 S.D. 78, ¶ 11 , 790 N.W.2d 35, 40 (quoting In re H.L.S., 2009 S.D. 92 , ¶ 11, 774 N.W.2d 803, 807-08 ). [¶ 33.] The test for examining a Batson challenge consists of three steps. “[A] defendant must first establish a prima facie case of purposeful discrimination by showing he or she is a member of a cognizable racial group and the State used its peremptory challenges to remove members of the defendant’s race from the potential jury candidates.” Mulligan, 2007 S.D. 67 , ¶ 33, 736 N.W.2d at 820 (quoting State v. Owen, 2007 S.D. 21 , ¶ 45, 729 N.W.2d 356, 369 ).

2012State v. Overbey, 2010 S.D. 78, ¶ 11 , 790 N.W.2d 35, 40 (quoting In re H.L.S., 2009 S.D. 92 , ¶ 11, 774 N.W.2d 803, 807-08 ). [¶ 33.] The test for examining a Batson challenge consists of three steps. “[A] defendant must first establish a prima facie case of purposeful discrimination by showing he or she is a member of a cognizable racial group and the State used its peremptory challenges to remove members of the defendant’s race from the potential jury candidates.” Mulligan, 2007 S.D. 67 , ¶ 33, 736 N.W.2d at 820 (quoting State v. Owen, 2007 S.D. 21 , ¶ 45, 729 N.W.2d 356, 369 ).

2012State v. Overbey, 2010 S.D. 78, ¶ 11 , 790 N.W.2d 35, 40 (quoting In re H.L.S., 2009 S.D. 92 , ¶ 11, 774 N.W.2d 803, 807-08 ). [¶ 33.] The test for examining a Batson challenge consists of three steps. “[A] defendant must first establish a prima facie case of purposeful discrimination by showing he or she is a member of a cognizable racial group and the State used its peremptory challenges to remove members of the defendant’s race from the potential jury candidates.” Mulligan, 2007 S.D. 67 , ¶ 33, 736 N.W.2d at 820 (quoting State v. Owen, 2007 S.D. 21 , ¶ 45, 729 N.W.2d 356, 369 ).

2012State v. Overbey, 2010 S.D. 78, ¶ 11 , 790 N.W.2d 35, 40 (quoting In re H.L.S., 2009 S.D. 92 , ¶ 11, 774 N.W.2d 803, 807-08 ). [¶ 33.] The test for examining a Batson challenge consists of three steps. “[A] defendant must first establish a prima facie case of purposeful discrimination by showing he or she is a member of a cognizable racial group and the State used its peremptory challenges to remove members of the defendant’s race from the potential jury candidates.” Mulligan, 2007 S.D. 67 , ¶ 33, 736 N.W.2d at 820 (quoting State v. Owen, 2007 S.D. 21 , ¶ 45, 729 N.W.2d 356, 369 ).

2000See Flute v. Class, 1997 SD 10, ¶ 11 , 559 N.W.2d 554, 557 (court exercises decreasing scrutiny as time passes).

2000See Flute v. Class, 1997 SD 10, ¶ 11 , 559 N.W.2d 554, 557 (court exercises decreasing scrutiny as time passes).

2000“While it is true that striking a [minority] venireperson for racial reasons is always violative of the Constitution, it is not true that • all peremptory strikes of [minority] venirepersons aré for racial reasons.” Honomichl, 498 N.W.2d at 639 (quoting United States v. Lewis, 892 F.2d 735, 736 (8th Cir.1989)).

2000“While it is true that striking a [minority] venireperson for racial reasons is always violative of the Constitution, it is not true that • all peremptory strikes of [minority] venirepersons aré for racial reasons.” Honomichl, 498 N.W.2d at 639 (quoting United States v. Lewis, 892 F.2d 735, 736 (8th Cir.1989)).

2000“Unless the facts supporting the Batson claim are articulated at trial, ‘they are lost to the record and appellate review becomes impossible.’ ” Williams v. Calderon, 48 F.Supp.2d 979, 997 (C.D.

2000"Unless the facts supporting the Batson claim are articulated at trial, `they are lost to the record and appellate review becomes impossible.'" Williams v. Calderon, 48 F.Supp.2d 979, 997 (C.D.