Batson analysis in Colorado

2025Batson, 476 U.S. at 89 . ¶ 43 When a defendant raises a Batson challenge based on race, a trial court applies a three-step analysis.

2025Batson, 476 U.S. at 89 ; see also People v. Owens, 2024 CO 10 , ¶ 75. 9 ¶ 30 When a party raises a Batson challenge, the district court must apply the three-step analysis first outlined in Batson to determine whether a peremptory strike is discriminatory.

2025See Valdez, 966 P.2d at 592 ; People v. Cerrone, 854 P.2d 178 , 186 n.13 (Colo. 1993). ¶ 35 Herrington, meanwhile, does not challenge the court’s conclusion that the prosecution carried its burden at step two of 18 the Batson framework by providing a facially race-neutral reason for striking Juror 15.4 ¶ 36 Turning to step three of the Batson analysis, Herrington contends that the prosecution’s race-neutral explanation for exercising the peremptory strike of Juror 15 was pretextual because (1) there was a “pattern of strikes exercised against Hispanic and Spanish-surnamed jurors,” and (2) the

2025See Valdez, 966 P.2d at 592 ; People v. Cerrone, 854 P.2d 178 , 186 n.13 (Colo. 1993). ¶ 35 Herrington, meanwhile, does not challenge the court’s conclusion that the prosecution carried its burden at step two of 18 the Batson framework by providing a facially race-neutral reason for striking Juror 15.4 ¶ 36 Turning to step three of the Batson analysis, Herrington contends that the prosecution’s race-neutral explanation for exercising the peremptory strike of Juror 15 was pretextual because (1) there was a “pattern of strikes exercised against Hispanic and Spanish-surnamed jurors,” and (2) the

2025The ultimate burden of persuasion rests with the opponent of the strike, Purkett v. Elem, 514 U.S. 765, 767 (1995), and, for a Batson challenge to succeed, the court must “find by a preponderance of the evidence that one or more potential jurors were excluded because of race,” Valdez, 966 P.2d at 590 . ¶ 26 Different steps of the Batson analysis are subject to separate standards of review.

2025The ultimate burden of persuasion rests with the opponent of the strike, Purkett v. Elem, 514 U.S. 765, 767 (1995), and, for a Batson challenge to succeed, the court must “find by a preponderance of the evidence that one or more potential jurors were excluded because of race,” Valdez, 966 P.2d at 590 . ¶ 26 Different steps of the Batson analysis are subject to separate standards of review.

2025The Trial Court’s Alleged Improper Reliance on Race ¶ 55 Finally, Ryan claims that the trial court misapplied the law when it said that if Ryan was Black, it would have “significantly greater concerns” about allowing the prosecutor to strike Juror A. 23 ¶ 56 In support of her contention, Ryan relies on Powers v. Ohio, which held that criminal defendants have standing to raise a Batson challenge even if the juror does not share the same race as a struck juror. 499 U.S. 400, 415 (1991) (“[A] defendant in a criminal case can raise the third-party equal protection claims of jurors excluded by the

2025The Trial Court’s Alleged Improper Reliance on Race ¶ 55 Finally, Ryan claims that the trial court misapplied the law when it said that if Ryan was Black, it would have “significantly greater concerns” about allowing the prosecutor to strike Juror A. 23 ¶ 56 In support of her contention, Ryan relies on Powers v. Ohio, which held that criminal defendants have standing to raise a Batson challenge even if the juror does not share the same race as a struck juror. 499 U.S. 400, 415 (1991) (“[A] defendant in a criminal case can raise the third-party equal protection claims of jurors excluded by the

2026People v. Beauvais, 2017 CO 34 , 1 The People cite People v. Morales, 2014 COA 129, ¶ 15 , to argue that step one isn’t moot and that we can affirm on the grounds that Hunnicutt’s Batson challenge failed at step one.

2026People v. Beauvais, 2017 CO 34, ¶ 32 . ¶ 21 To prevail on a Batson challenge, the objecting party must prove purposeful discrimination by a preponderance of the evidence.

2023The Supreme Court itself has told us as much: “In Miller-El v. Dretke, the Court made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.” Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (emphases added). ¶74 Indeed, it’s clear that the Miller-El Court considered all of the circumstances involved in that case—including a prosecutor’s shifting justifications for one strike—when determining that the prosecutor struck Black venire members on account of their rac

2023The Supreme Court itself has told us as much: “In Miller-El v. Dretke, the Court made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.” Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (emphases added). ¶74 Indeed, it’s clear that the Miller-El Court considered all of the circumstances involved in that case—including a prosecutor’s shifting justifications for one strike—when determining that the prosecutor struck Black venire members on account of their rac

2025Flowers, 588 U.S. at 301 (“A defendant of any race may raise a Batson claim, and a defendant may raise a Batson claim even if the defendant and the excluded juror are of different races.”).

2025Flowers, 588 U.S. at 301 (“A defendant of any race may raise a Batson claim, and a defendant may raise a Batson claim even if the defendant and the excluded juror are of different races.”).

2022A race-neutral explanation is “an explanation based on something other than the race of the juror.” Hernandez, 500 U.S. at 360 ; see also People v. Mendoza, 876 P.2d 98, 101 (Colo. App. 1994) (stating that at step two of a Batson analysis, a prosecutor must offer an explanation for the strike “based on something other than race”).

2022A race-neutral explanation is “an explanation based on something other than the race of the juror.” Hernandez, 500 U.S. at 360 ; see also People v. Mendoza, 876 P.2d 98, 101 (Colo. App. 1994) (stating that at step two of a Batson analysis, a prosecutor must offer an explanation for the strike “based on something other than race”).

2023As such, I respectfully dissent. ¶66 The exclusion of citizens from jury service on account of race is “a primary example of the evil the Fourteenth Amendment was designed to cure.” People v. Rodriguez, 2015 CO 55, ¶ 9 , 351 P.3d 423, 428 (quoting Batson, 476 U.S. at 85 ). 1 Accordingly, the Supreme Court designed the three-step Batson test “to ferret out the unconstitutional use of race in jury selection.” Miller-El, 545 U.S. at 266 (Breyer, J., concurring).

2023As such, I respectfully dissent. ¶66 The exclusion of citizens from jury service on account of race is “a primary example of the evil the Fourteenth Amendment was designed to cure.” People v. Rodriguez, 2015 CO 55, ¶ 9 , 351 P.3d 423, 428 (quoting Batson, 476 U.S. at 85 ). 1 Accordingly, the Supreme Court designed the three-step Batson test “to ferret out the unconstitutional use of race in jury selection.” Miller-El, 545 U.S. at 266 (Breyer, J., concurring).

2026Id.; Wilson, ¶ 10. 9 ¶ 25 “On appeal, each step of the trial court’s Batson analysis is subject to a separate standard of review.” Ojeda, ¶ 30 (quoting People v. Rodriguez, 2015 CO 55, ¶ 13 ).

2026Id.; Wilson, ¶ 10. 9 ¶ 25 “On appeal, each step of the trial court’s Batson analysis is subject to a separate standard of review.” Ojeda, ¶ 30 (quoting People v. Rodriguez, 2015 CO 55, ¶ 13 ).

2024Because the trial court ruled on the ultimate issue of purposeful racial discrimination at step three, that "preliminary issue . . . bec [ame] moot." Hernandez v. New York , 500 U.S. 352, 359 ( 1991 ) (plurality opinion) ; see also People v. Wilson , 2015 CO 54M , ¶ 12 , 351 P.3d 1126, 1131 ( stating that the step-one question was mooted by the trial court 's ruling on the ultimate Batson issue ) .

2024Because the trial court ruled on the ultimate issue of purposeful racial discrimination at step three, that "preliminary issue . . . bec[ame] moot." Hernandez v. New York , 500 U.S. 352, 359 (1991) (plurality opinion); see also People v. Wilson , 2015 CO 54M, ¶ 12, 351 P.3d 1126, 1131 (stating that the step-one question was mooted by the trial court's ruling on the ultimate Batson issue).

2025Such a determination lies “peculiarly within a trial judge’s province.” Id. (quoting Beauvais, ¶21). “[I]mplicit demeanor and credibility findings may suffice.” Id. at ¶ 43. ¶ 30 The ultimate burden of persuasion rests with the opponent of the strike, Purkett v. Elem, 514 U.S. 765, 767 (1995), and, for a 14 Batson challenge to succeed, the court must “find by a preponderance of the evidence that one or more potential jurors were excluded because of race,” Valdez, 966 P.2d at 590 . ¶ 31 Different steps of the Batson analysis are subject to separate standards of review.

2025Such a determination lies “peculiarly within a trial judge’s province.” Id. (quoting Beauvais, ¶21). “[I]mplicit demeanor and credibility findings may suffice.” Id. at ¶ 43. ¶ 30 The ultimate burden of persuasion rests with the opponent of the strike, Purkett v. Elem, 514 U.S. 765, 767 (1995), and, for a 14 Batson challenge to succeed, the court must “find by a preponderance of the evidence that one or more potential jurors were excluded because of race,” Valdez, 966 P.2d at 590 . ¶ 31 Different steps of the Batson analysis are subject to separate standards of review.

2023Remedy ¶58 “Ordinarily, when a trial court has not adequately conducted the Batson analysis, the appropriate procedure is to remand the case for more detailed findings by the trial court.” Rodriguez, ¶ 19, 351 P.3d at 431 (quoting Craig, 161 P.3d at 654 ).

2023Remedy ¶58 “Ordinarily, when a trial court has not adequately conducted the Batson analysis, the appropriate procedure is to remand the case for more detailed findings by the trial court.” Rodriguez, ¶ 19, 351 P.3d at 431 (quoting Craig, 161 P.3d at 654 ).

2017Hence, a trial court should sustain a Batson objection only if the objecting party proves by a preponderance of the evidence that the striking party’s non-discriminatory reasons are sufficiently incredible that the “‘discriminatory hypothesis’ better fits the evidence.” Id; accord Elem, 514 U.S. at 768 , 115 S.Ct. 1769 (“[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.”). ¶25 As we explained above, this determination “lies peculiarly within a trial judge’s province.” Cockrell, 537 U.S. at 339 , 123 S.Ct. 1029 (quoting Hern

2017Hence, a trial court should sustain a Batson objection only if the objecting party proves by a preponderance of the evidence that the striking party’s non-discriminatory reasons are sufficiently incredible that the “‘discriminatory hypothesis’ better fits the evidence.” Id.; accord Elem, 514 U.S. at 768 13 (“[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.”). ¶25 As we explained above, this determination “lies peculiarly within a trial judge’s province.” Cockrell, 537 U.S. at 339 (quoting Hernandez, 500 U.S. at 365 ); acco

2025See Valdez, 966 P.2d at 592 ; People v. Cerrone, 854 P.2d 178 , 186 n.13 (Colo. 1993). ¶ 35 Herrington, meanwhile, does not challenge the court’s conclusion that the prosecution carried its burden at step two of 18 the Batson framework by providing a facially race-neutral reason for striking Juror 15.4 ¶ 36 Turning to step three of the Batson analysis, Herrington contends that the prosecution’s race-neutral explanation for exercising the peremptory strike of Juror 15 was pretextual because (1) there was a “pattern of strikes exercised against Hispanic and Spanish-surnamed jurors,” and (2) the

2025See Valdez, 966 P.2d at 592 ; People v. Cerrone, 854 P.2d 178 , 186 n.13 (Colo. 1993). ¶ 35 Herrington, meanwhile, does not challenge the court’s conclusion that the prosecution carried its burden at step two of 18 the Batson framework by providing a facially race-neutral reason for striking Juror 15.4 ¶ 36 Turning to step three of the Batson analysis, Herrington contends that the prosecution’s race-neutral explanation for exercising the peremptory strike of Juror 15 was pretextual because (1) there was a “pattern of strikes exercised against Hispanic and Spanish-surnamed jurors,” and (2) the

2024In McCollum , the Court addressed whether to extend the Batson framework to apply to a criminal defendant's " purposeful racial discrimination in the exercise of peremptory 26 challenges." 505 U.S. at 46-48 (emphasis added).

2024In McCollum , the Court addressed whether to extend the Batson framework to apply to a criminal defendant's " purposeful racial discrimination in the exercise of peremptory 26 challenges." 505 U.S. at 46-48 (emphasis added).

2025Because defense counsel never argued that the 12 prosecution’s step-two explanation was pretextual or racially motivated, we don’t see what other facts or circumstances the court should’ve considered in rejecting his Batson challenge.4 See People v. Wilson, 2015 CO 54M, ¶ 14 (“Though the [district] court must evaluate all relevant facts, ‘the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’” (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995))); cf. People v. O’Shaughnessy, 275 P.3d 687, 695 (Colo. App. 2010) (explaining t

2024Because the trial court ruled on the ultimate issue of purposeful racial discrimination at step three, that "preliminary issue . . . bec[ame] moot." Hernandez v. New York , 500 U.S. 352, 359 (1991) (plurality opinion); see also People v. Wilson , 2015 CO 54M, ¶ 12, 351 P.3d 1126, 1131 (stating that the step-one question was mooted by the trial court's ruling on the ultimate Batson issue).

2026Ramirez-Armas asserts that, by prematurely dismissing S.M. from service, the court denied defense counsel “the opportunity to timely make an objection prior to S.M.’s departure.” The record does not support Ramirez-Armas’s argument, however. ¶ 48 Remedying a Batson violation is not possible “when the judge has released the prospective juror who was the subject of the 20 Batson challenge before the issue is brought to the judge’s attention.” People v. Valera-Castillo, 2021 COA 91, ¶ 12 , 497 P.3d 24 , 31.

2026Ramirez-Armas asserts that, by prematurely dismissing S.M. from service, the court denied defense counsel “the opportunity to timely make an objection prior to S.M.’s departure.” The record does not support Ramirez-Armas’s argument, however. ¶ 48 Remedying a Batson violation is not possible “when the judge has released the prospective juror who was the subject of the 20 Batson challenge before the issue is brought to the judge’s attention.” People v. Valera-Castillo, 2021 COA 91, ¶ 12 , 497 P.3d 24 , 31.

2025Under the substantial-motivating factor approach a court will sustain a Batson challenge where the striking party was “motivated in substantial part by discriminatory intent.” Flowers v. Mississippi, 588 U.S. 284, 303 (2019) (quoting Foster v. Chatman, 578 U.S. 488, 513 (2016)). ¶ 16 The supreme court remanded the case to this court to determine whether the domestic-violence explanation or the bias-against-law-enforcement explanation was the prosecutor’s substantial motivating factor for striking Juror M and whether a remand to the trial court for further step-three findings was necessary.

2025Under the substantial-motivating factor approach a court will sustain a Batson challenge where the striking party was “motivated in substantial part by discriminatory intent.” Flowers v. Mississippi, 588 U.S. 284, 303 (2019) (quoting Foster v. Chatman, 578 U.S. 488, 513 (2016)). ¶ 16 The supreme court remanded the case to this court to determine whether the domestic-violence explanation or the bias-against-law-enforcement explanation was the prosecutor’s substantial motivating factor for striking Juror M and whether a remand to the trial court for further step-three findings was necessary.

2024Resolution of this question requires trial courts to apply "a substantial-motivating-factor test; that is, if the court determines that a peremptory strike was 'motivated in substantial part by discriminatory intent,' the court may conclude that the strike was purposefully discriminatory under Batson ." Madrid , ¶ 35 , 526 P.3d at 194 ( quoting Flowers v. Mississippi , 588 U.S. 284, 303 ( 2019 ) ) . ¶40 " [A] trial court should sustain a Batson objection only if the objecting party proves by a preponderance of the evidence that the striking party 's non-discriminatory reasons are sufficiently

2024Resolution of this question requires trial courts to apply "a substantial-motivating-factor test; that is, if the court determines that a peremptory strike was 'motivated in substantial part by discriminatory intent,' the court may conclude that the strike was purposefully discriminatory under Batson ." Madrid , ¶ 35, 526 P.3d at 194 (quoting Flowers v. Mississippi , 588 U.S. 284, 303 (2019)). 23 ¶40 "[A] trial court should sustain a Batson objection only if the objecting party proves by a preponderance of the evidence that the striking party's non-discriminatory reasons are sufficiently incre

2025Because defense counsel never argued that the 12 prosecution’s step-two explanation was pretextual or racially motivated, we don’t see what other facts or circumstances the court should’ve considered in rejecting his Batson challenge.4 See People v. Wilson, 2015 CO 54M, ¶ 14 (“Though the [district] court must evaluate all relevant facts, ‘the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’” (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995))); cf. People v. O’Shaughnessy, 275 P.3d 687, 695 (Colo. App. 2010) (explaining t

2014Valdez, 966 P.2d at 589 ; O'Shaughnessy, 275 P.3d at 690 . ¶ 10 To raise a Batson challenge, the defendant and the excused prospective juror need not be of the same cognizable racial group.

2004See People v. Burke, 937 P.2d 886 (Colo.App.1996)(if the party alleging discrimination does not establish a prima facie case, the court need not proceed any further with the Batson analysis).

2004See People v. Burke, 937 P.2d 886 (Colo.App.1996)(if the party alleging discrimination does not establish a prima facie case, the court need not proceed any further with the Batson analysis).

2014Hernandez v. New York, 500 U.S. 352 , 360, 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991) (plurality opinion); People v. Robinson, 187 P.3d 1166 , 1172 (Colo.App.2008). ¶ 15 If the prosecutor offers a race-neutral explanation for excusing a prospective juror, the trial court must then proceed to step three of the Batson analysis.

2014Hernandez v. New York, 500 U.S. 352 , 360, 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991) (plurality opinion); People v. Robinson, 187 P.3d 1166 , 1172 (Colo.App.2008). ¶ 15 If the prosecutor offers a race-neutral explanation for excusing a prospective juror, the trial court must then proceed to step three of the Batson analysis.

2012See id. at 343 , 123 S.Ct. 1029 (reversing for Batson violation where the "State's proffered race-neutral rationales for striking African-American jurors pertained just as well to some white jurors who were not challenged and who did serve on the jury"); Collins, 187 P.3d at 1183 ; Gabler, 958 P.2d at 508 .

2012See, e.g., Collins, 187 P.3d at 1184 ; Gabler, 958 P.2d at 509 . ¶ 22 However, the overwhelming majority of courts in other jurisdictions to consider the issue have held that a Batson violation constitutes structural error requiring automatic reversal.

2014See Hogan, 114 P.3d at 52 ; People v. Gardenhire, 903 P.2d 1165, 1170 (Colo.App.1995) (affirming trial court's denial of a Batson challenge at step one where the defendant did not present facts creating an inference of discrimination and pointed to no comments by the prosecutor that would support such an inference).

2014See Hogan, 114 P.3d at 52 ; People v. Gardenhire, 903 P.2d 1165, 1170 (Colo.App.1995) (affirming trial court's denial of a Batson challenge at step one where the defendant did not present facts creating an inference of discrimination and pointed to no comments by the prosecutor that would support such an inference).

2012Id. at 158 , 129 S.Ct. 1446 (quoting Spencer v. Texas, 385 U.S. 554 , 563-64, 87 S.Ct. 648 , 17 L.Ed.2d 606 (1967) ). ¶ 28 Accordingly, we conclude that the Batson violation here constitutes a structural error requiring automatic reversal. 2 Therefore, we reverse and remand the case for a new trial. ¶ 29 In the interest of judicial economy, we address those of Wilson's remaining contentions that are likely to recur on remand.

2012Id. at 158 , 129 S.Ct. 1446 (quoting Spencer v. Texas, 385 U.S. 554 , 563-64, 87 S.Ct. 648 , 17 L.Ed.2d 606 (1967) ). ¶ 28 Accordingly, we conclude that the Batson violation here constitutes a structural error requiring automatic reversal. 2 Therefore, we reverse and remand the case for a new trial. ¶ 29 In the interest of judicial economy, we address those of Wilson's remaining contentions that are likely to recur on remand.

2025Because defense counsel never argued that the 12 prosecution’s step-two explanation was pretextual or racially motivated, we don’t see what other facts or circumstances the court should’ve considered in rejecting his Batson challenge.4 See People v. Wilson, 2015 CO 54M, ¶ 14 (“Though the [district] court must evaluate all relevant facts, ‘the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’” (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995))); cf. People v. O’Shaughnessy, 275 P.3d 687, 695 (Colo. App. 2010) (explaining t

2008Cf. Rudas, 905 F.2d at 41 (where defense counsel did not indicate an intention to pursue Batson claim after prosecutor offered reasons for peremptory challenges, counsel appeared to acquiesce in those reasons); State v. King, 249 Conn. 645 , 735 A.2d 267, 281 (1999) (defendant's counsel's failure to attempt to rebut the prosecutor's reason may be regarded as acquiescence by the defendant in the validity of the prosecutor's explanation); State v. Johnson, 980 SW.2d 456 , 461 (Mo.Ct.App.1996) (defendant's counsel's failure to rebut the prosecutor's stated reasons failed to preserve any objection

2026Standard of Review ¶ 39 We review a court’s Batson analysis “de novo . . . at step one (regarding whether the objecting party made a prima facie showing that the challenged peremptory strike was race-based) and at step two (regarding whether the striking party gave a race-neutral reason for the strike).” People v. Romero, 2024 CO 62, ¶ 45 , 555 P.3d 582 , 16 595.

2026Standard of Review ¶ 39 We review a court’s Batson analysis “de novo . . . at step one (regarding whether the objecting party made a prima facie showing that the challenged peremptory strike was race-based) and at step two (regarding whether the striking party gave a race-neutral reason for the strike).” People v. Romero, 2024 CO 62, ¶ 45 , 555 P.3d 582 , 16 595.

1998Conversely, a different panel of the court of appeals in People v. Portley, 857 P.2d 459, 463 (Colo.App.1992), explicitly rejected the abuse of discretion standard of review as to the initial step of the Batson inquiry.

1998Conversely, a different panel of the court of appeals in People v. Portley, 857 P.2d 459, 463 (Colo.App.1992), explicitly rejected the abuse of discretion standard of review as to the initial step of the Batson inquiry.