Counsel for petitioner Hernandez at his New York trial objected
that the prosecutor had used four peremptory challenges to exclude
Latino potential jurors. Two of the jurors had brothers who had
been convicted of crimes, and petitioner no longer presses his
objection to exclusion of those individuals. The ethnicity of one
of the other two jurors was uncertain. Without waiting for a ruling
on whether Hernandez had established a
prima facie case of
discrimination under
Batson v. Kentucky, 476 U. S.
79, the prosecutor volunteered that he had struck these
two jurors, who were both bilingual, because he was uncertain that
they would be able to listen and follow the interpreter. He
explained that they had looked away from him and hesitated before
responding to his inquiry whether they would accept the translator
as the final arbiter of the witnesses' responses; that he did not
know which jurors were Latinos; and that he had no motive to
exclude Latinos from the jury, since the complainants and all of
his civilian witnesses were Latinos. The court rejected Hernandez's
claim, and its decision was affirmed by the state appellate
courts.
Held: The judgment is affirmed.
75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621, affirmed.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE SOUTER, announced the judgment of the Court, concluding
that the prosecutor did not use peremptory challenges in a manner
violating the Equal Protection Clause. Under
Batson's
three-step process for evaluating an objection to peremptory
challenges, (1) a defendant must make a
prima facie
showing that the prosecutor has exercised peremptory challenges on
the basis of race, (2) the burden then shifts to the prosecutor to
articulate a race-neutral explanation for striking the jurors in
question, and (3) the trial court must determine whether the
defendant has carried his burden of proving purposeful
discrimination. Pp.
500 U. S.
358-372.
(a) Since the prosecutor offered an explanation for the
peremptory challenges and the trial court ruled on the ultimate
question of intentional discrimination, the preliminary issue
whether Hernandez made a
prima facie showing of
discrimination is moot.
Cf. United States Postal Service Bd. of
Govs. v. Aikens, 460 U. S. 711,
460 U. S. 715.
P.
500 U. S.
359.
Page 500 U. S. 353
(b) The prosecutor offered a race-neutral basis for his
peremptory strikes. The issue here is the facial validity of the
prosecutor's explanation, which must be based on something other
than race. While the prosecutor's criterion for exclusion --
whether jurors might have difficulty in accepting the translator's
rendition of Spanish-language testimony -- might have resulted in
the disproportionate removal of prospective Latino jurors, it is
proof of racially discriminatory intent or purpose that is required
to show a violation of the Equal Protection Clause.
See
Arlington Heights v. Metropolitan Housing Development Corp.,
429 U. S. 252,
429 U. S.
264-265. This Court need not address Hernandez's
argument that Spanish-speaking ability bears such a close relation
to ethnicity that exercising a peremptory challenge on the former
ground violates equal protection, since the prosecutor explained
that the jurors' specific responses and demeanor, and not their
language proficiency alone, caused him to doubt their ability to
defer to the official translation. That a high percentage of
bilingual jurors might hesitate before answering questions like
those asked here and, thus, would be excluded under the
prosecutor's criterion would not cause the criterion to fail the
race neutrality test. The reason offered by the prosecutor need not
rise to the level of a challenge for cause, but the fact that it
corresponds to a valid for-cause challenge will demonstrate its
race-neutral character. Pp.
500 U. S.
359-363.
(c) The trial court did not commit clear error in determining
that the prosecutor did not discriminate on the basis of the Latino
jurors' ethnicity. A trial court should give appropriate weight to
the disparate impact of the prosecutor's criterion in determining
whether the prosecutor acted with a forbidden intent, even though
that factor is not conclusive in the preliminary race neutrality
inquiry. Here, the court chose to believe the prosecutor's
explanation and reject Hernandez's assertion that the reasons were
pretextual. That decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort
accorded great deference on appeal, regardless of whether it is a
state court decision and whether it relates to a constitutional
issue.
See, e.g., 324 Liquor Corp. v. Duffy, 479 U.
S. 335,
479 U. S. 351.
Deference makes particular sense in this context because the
finding will largely turn on an evaluation of credibility.
Hernandez's argument that there should be "independent" appellate
review of a state trial court's denial of a
Batson claim
is rejected.
Bose Corp. v. Consumers Union of United States,
Inc., 466 U. S. 485;
Miller v. Fenton, 474 U. S. 104;
Norris v. Alabama, 294 U. S. 587,
distinguished. Here, the court took a permissible view of the
evidence in crediting the prosecutor's explanation. Apart from the
prosecutor's demeanor, the court could have relied on the facts
that he defended his use of peremptory challenges without being
asked to do so by
Page 500 U. S. 354
the judge, that he did not know which jurors were Latinos, and
that ethnicity of the victims and the prosecution witnesses tended
to undercut any motive to exclude Latinos from the jury. Moreover,
the court could rely on the facts that only three of the challenged
jurors can with confidence be identified as Latinos, and that the
prosecutor had a verifiable and legitimate explanation for two of
those challenges. Pp.
500 U. S.
363-370.
(d) This decision does not imply that exclusion of bilinguals
from jury service is wise, or even constitutional in all cases. It
may be, for certain ethnic groups and in some communities, that
proficiency in a particular language, like skin color, should be
treated as a surrogate for race under an equal protection analysis.
Cf., e.g., Yu Cong Eng v. Trinidad, 271 U.
S. 500. And, a policy of striking all who speak a given
language, without regard to the trial's particular circumstances or
the jurors' individual responses, may be found by the trial judge
to be a pretext for racial discrimination. Pp.
500 U. S.
370-372.
JUSTICE O'CONNOR, joined by JUSTICE SCALIA, while agreeing that
the Court should review for clear error the trial court's finding
as to discriminatory intent, and that the finding of no
discriminatory intent was not clearly erroneous in this case,
concluded that JUSTICE KENNEDY's opinion goes further than
necessary in assessing the constitutionality of the prosecutor's
asserted justification for his peremptory strikes. If, as in this
case, the trial court believes the prosecutor's nonracial
justification, and that finding is not clearly erroneous, that is
the end of the inquiry.
Batson v. Kentucky, 476 U. S.
79, does not require that a prosecutor justify a jury
strike at the level of a for-cause challenge or that the
justification be unrelated to race.
Batson requires only
that the prosecutor's reason for striking a juror not
be
the juror's race. Pp.
500 U. S.
372-375.
KENNEDY, J., announced the judgment of the Court and delivered
an opinion, in which REHNQUIST, C.J., and WHITE and SOUTER, JJ.,
joined. O'CONNOR, J., filed an opinion concurring in the judgment,
in which SCALIA, J., joined,
post, p.
500 U. S. 372.
BLACKMUN, J., filed a dissenting opinion,
post, p.
500 U. S. 375.
STEVENS, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
500 U. S.
375.
Page 500 U. S. 355
JUSTICE KENNEDY announced the judgment of the Court and
delivered an opinion in which THE CHIEF JUSTICE, JUSTICE WHITE and
JUSTICE SOUTER join.
Petitioner Dionisio Hernandez asks us to review the New York
state courts' rejection of his claim that the prosecutor in his
criminal trial exercised peremptory challenges to exclude Latinos
from the jury by reason of their ethnicity. If true, the
prosecutor's discriminatory use of peremptory strikes would violate
the Equal Protection Clause as interpreted by our decision in
Batson v. Kentucky, 476 U. S. 79
(1986). We must determine whether the prosecutor offered a
race-neutral basis for challenging Latino potential jurors and, if
so, whether the state courts' decision to accept the prosecutor's
explanation should be sustained.
Petitioner and respondent both use the term "Latino" in their
briefs to this Court.
Amicus briefs on both sides employ,
instead, the term "Hispanic," and the parties referred to the
excluded jurors by that term in the trial court. Both words appear
in the state court opinions. No attempt has been made at a
distinction by the parties, and we make no attempt to distinguish
the terms in this opinion. We will refer to the excluded
venirepersons as Latinos in deference to the terminology preferred
by the parties before the Court.
I
The case comes to us on direct review of petitioner's
convictions on two counts of attempted murder and two counts of
criminal possession of a weapon. On a Brooklyn street, petitioner
fired several shots at Charlene Calloway and her mother, Ada
Saline. Calloway suffered three gunshot wounds. Petitioner missed
Saline, and instead hit two men in a nearby restaurant. The victims
survived the incident.
The trial was held in the New York Supreme Court, Kings County.
We concern ourselves here only with the jury selection process and
the proper application of
Batson, which had been handed
down before the trial took place. After 63 potential jurors had
been questioned and 9 had been empaneled,
Page 500 U. S. 356
defense counsel objected that the prosecutor had used four
peremptory challenges to exclude Latino potential jurors. Two of
the Latino venirepersons challenged by the prosecutor had brothers
who had been convicted of crimes, and the brother of one of those
potential jurors was being prosecuted by the same District
Attorney's office for a probation violation. Petitioner does not
press his
Batson claim with respect to those prospective
jurors, and we concentrate on the other two excluded
individuals.
After petitioner raised his
Batson objection, the
prosecutor did not wait for a ruling on whether petitioner had
established a
prima facie case of racial discrimination.
Instead, the prosecutor volunteered his reasons for striking the
jurors in question. He explained:
"Your honor, my reason for rejecting the -- these two jurors --
I'm not certain as to whether they're Hispanics. I didn't notice
how many Hispanics had been called to the panel, but my reason for
rejecting these two is I feel very uncertain that they would be
able to listen and follow the interpreter."
App. 3. After an interruption by defense counsel, the prosecutor
continued:
"We talked to them for a long time; the Court talked to them, I
talked to them. I believe that in their heart they will try to
follow it, but I felt there was a great deal of uncertainty as to
whether they could accept the interpreter as the final arbiter of
what was said by each of the witnesses, especially where there were
going to be Spanish-speaking witnesses, and I didn't feel, when I
asked them whether or not they could accept the interpreter's
translation of it, I didn't feel that they could. They each looked
away from me and said with some hesitancy that they would try, not
that they could, but that they would try to follow the interpreter,
and I feel that,
Page 500 U. S. 357
in a case where the interpreter will be for the main witnesses,
they would have an undue impact upon the jury."
Id. at 3-4. [
Footnote
1] Defense counsel moved for a mistrial "based on the conduct
of the District Attorney," and the prosecutor requested a chance to
call a supervisor to the courtroom before the judge's ruling.
Following a recess, defense counsel renewed his motion, which
the trial court denied. Discussion of the objection continued,
however, and the prosecutor explained that he would have no motive
to exclude Latinos from the jury:
"[T]his case, involves four complainants. Each of the
complainants is Hispanic. All my witnesses, that is, civilian
witnesses, are going to be Hispanic. I have absolutely no reason --
there's no reason for me to want to exclude Hispanics, because all
the parties involved are Hispanic, and I certainly would have no
reason to do that."
Id. at 6. [
Footnote
2]
Page 500 U. S. 358
After further interchange among the judge and attorneys, the
trial court again rejected petitioner's claim.
Id. at
12.
On appeal, the New York Supreme Court, Appellate Division, noted
that, though the ethnicity of one challenged bilingual juror
remained uncertain, the prosecutor had challenged the only three
prospective jurors with definite Hispanic surnames. The court ruled
that this fact made out a
prima facie showing of
discrimination. The court affirmed the trial court's rejection of
petitioner's
Batson claim, however, on the ground that the
prosecutor had offered race-neutral explanations for the peremptory
strikes sufficient to rebut petitioner's
prima facie
case.
The New York Court of Appeals also affirmed the judgment,
holding that the prosecutor had offered a legitimate basis for
challenging the individuals in question and deferring to the
factual findings of the lower New York courts. Two judges
dissented, concluding that, on this record, analyzed in the light
of standards they would adopt as a matter of state constitutional
law, the prosecutor's exclusion of the bilingual potential jurors
should not have been permitted. We granted certiorari, 498 U.S. 894
(1990), and now affirm.
II
In
Batson, we outlined a three-step process for
evaluating claims that a prosecutor has used peremptory challenges
in a manner violating the Equal Protection Clause. 476 U.S. at
476 U. S. 96-98.
The analysis set forth in
Batson permits prompt rulings on
objections to peremptory challenges without substantial disruption
of the jury selection process. First, the defendant must make a
prima facie showing that the prosecutor has exercised
peremptory challenges on the basis of race.
Id. at
476 U. S. 96-97.
Second, if the requisite showing has been made, the burden shifts
to the prosecutor to articulate a race-neutral
Page 500 U. S. 359
explanation for striking the jurors in question.
Id. at
476 U. S. 97-98.
Finally, the trial court must determine whether the defendant has
carried his burden of proving purposeful discrimination.
Id. at
476 U. S. 98.
This three-step inquiry delimits our consideration of the arguments
raised by petitioner.
A
The prosecutor defended his use of peremptory strikes without
any prompting or inquiry from the trial court. As a result, the
trial court had no occasion to rule that petitioner had or had not
made a
prima facie showing of intentional discrimination.
This departure from the normal course of proceeding need not
concern us. We explained in the context of employment
discrimination litigation under Title VII of the Civil Rights Act
of 1964 that
"[w]here the defendant has done everything that would be
required of him if the plaintiff had properly made out a
prima
facie case, whether the plaintiff really did so is no longer
relevant."
United States Postal Service Bd. of Govs. v. Aikens,
460 U. S. 711,
460 U. S. 715
(1983). The same principle applies under
Batson. Once a
prosecutor has offered a race-neutral explanation for the
peremptory challenges and the trial court has ruled on the ultimate
question of intentional discrimination, the preliminary issue of
whether the defendant had made a
prima facie showing
becomes moot.
B
Petitioner contends that the reasons given by the prosecutor for
challenging the two bilingual jurors were not race-neutral. In
evaluating the race-neutrality of an attorney's explanation, a
court must determine whether, assuming the proffered reasons for
the peremptory challenges are true, the challenges violate the
Equal Protection Clause as a matter of law. A court addressing this
issue must keep in mind the fundamental principle that "official
action will not be held unconstitutional solely because it results
in a racially disproportionate
Page 500 U. S. 360
impact. . . . Proof of racially discriminatory intent or purpose
is required to show a violation of the Equal Protection Clause."
Arlington Heights v. Metropolitan Housing Development
Corp., 429 U. S. 252,
429 U. S.
264-265 (1977);
see also Washington v. Davis,
426 U. S. 229,
426 U. S. 239
(1976).
"'Discriminatory purpose' . . . implies more than intent as
volition or intent as awareness of consequences. It implies that
the decisionmaker . . . selected . . . a particular course of
action at least in part 'because of,' not merely 'in spite of,' its
adverse effects upon an identifiable group."
Personnel Administrator of Massachusetts v. Feeney,
442 U. S. 256,
442 U. S. 279
(1979) (footnote and citation omitted);
see also McCleskey v.
Kemp, 481 U. S. 279,
481 U. S.
297-299 (1987).
A neutral explanation in the context of our analysis here means
an explanation based on something other than the race of the juror.
At this step of the inquiry, the issue is the facial validity of
the prosecutor's explanation. Unless a discriminatory intent is
inherent in the prosecutor's explanation, the reason offered will
be deemed race-neutral.
Petitioner argues that Spanish language ability bears a close
relation to ethnicity, and that, as a consequence, it violates the
Equal Protection Clause to exercise a peremptory challenge on the
ground that a Latino potential juror speaks Spanish. He points to
the high correlation between Spanish language ability and ethnicity
in New York, where the case was tried. We need not address that
argument here, for the prosecutor did not rely on language ability
without more, but explained that the specific responses and the
demeanor of the two individuals during
voir dire caused
him to doubt their ability to defer to the official translation of
Spanish language testimony. [
Footnote 3]
Page 500 U. S. 361
The prosecutor here offered a race-neutral basis for these
peremptory strikes. As explained by the prosecutor, the challenges
rested neither on the intention to exclude Latino or bilingual
jurors, nor on stereotypical assumptions about Latinos or
bilinguals. The prosecutor's articulated basis for these challenges
divided potential jurors into two classes: those whose conduct
during
voir dire would persuade him they might have
difficulty in accepting the translator's rendition of Spanish
language testimony and those potential jurors who gave no such
reason for doubt. Each category would include both Latinos and
non-Latinos. While the prosecutor's criterion might well result in
the disproportionate removal of prospective Latino jurors, that
disproportionate impact does not turn the prosecutor's actions into
a
per se violation of the Equal Protection Clause.
Petitioner contends that despite the prosecutor's focus on the
individual responses of these jurors, his reason for the peremptory
strikes has the effect of a pure, language-based
Page 500 U. S. 362
reason, because "[a]ny honest bilingual juror would have
answered the prosecutor in the exact same way." Brief for
Petitioner 14. Petitioner asserts that a bilingual juror would
hesitate in answering questions like those asked by the judge and
prosecutor due to the difficulty of ignoring the actual Spanish
language testimony. In his view, no more can be expected than a
commitment by a prospective juror to try to follow the
interpreter's translation.
But even if we knew that a high percentage of bilingual jurors
would hesitate in answering questions like these and, as a
consequence, would be excluded under the prosecutor's criterion,
that fact alone would not cause the criterion to fail the race
neutrality test. As will be discussed below, disparate impact
should be given appropriate weight in determining whether the
prosecutor acted with a forbidden intent, but it will not be
conclusive in the preliminary race neutrality step of the
Batson inquiry. An argument relating to the impact of a
classification does not alone show its purpose.
See Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. at
442 U. S. 279.
Equal protection analysis turns on the intended consequences of
government classifications. Unless the government actor adopted a
criterion with the intent of causing the impact asserted, that
impact itself does not violate the principle of race neutrality.
Nothing in the prosecutor's explanation shows that he chose to
exclude jurors who hesitated in answering questions about following
the interpreter
because he wanted to prevent bilingual
Latinos from serving on the jury.
If we deemed the prosecutor's reason for striking these jurors a
racial classification on its face, it would follow that a trial
judge could not excuse for cause a juror whose hesitation convinced
the judge of the juror's inability to accept the official
translation of foreign language testimony. If the explanation is
not race-neutral for the prosecutor, it is no more so for the trial
judge. While the reason offered by the prosecutor for a peremptory
strike need not rise to the level of a
Page 500 U. S. 363
challenge for cause,
Batson, 476 U.S. at
476 U. S. 97,
the fact that it corresponds to a valid for-cause challenge will
demonstrate its race-neutral character.
C
Once the prosecutor offers a race-neutral basis for his exercise
of peremptory challenges, "[t]he trial court then [has] the duty to
determine if the defendant has established purposeful
discrimination."
Batson, 476 U.S. at
476 U. S. 98.
While the disproportionate impact on Latinos resulting from the
prosecutor's criterion for excluding these jurors does not answer
the race neutrality inquiry, it does have relevance to the trial
court's decision on this question.
"[A]n invidious discriminatory purpose may often be inferred
from the totality of the relevant facts, including the fact, if it
is true, that the [classification] bears more heavily on one race
than another."
Washington v. Davis, 426 U.S. at
426 U. S. 242.
If a prosecutor articulates a basis for a peremptory challenge that
results in the disproportionate exclusion of members of a certain
race, the trial judge may consider that fact as evidence that the
prosecutor's stated reason constitutes a pretext for racial
discrimination.
In the context of this trial, the prosecutor's frank admission
that his ground for excusing these jurors related to their ability
to speak and understand Spanish raised a plausible, though not a
necessary, inference that language might be a pretext for what in
fact were race-based peremptory challenges. This was not a case
where, by some rare coincidence, a juror happened to speak the same
language as a key witness, in a community where few others spoke
that tongue. If it were, the explanation that the juror could have
undue influence on jury deliberations might be accepted without
concern that a racial generalization had come into play. But this
trial took place in a community with a substantial Latino
population, and petitioner and other interested parties were
members of that ethnic group. It would be common knowledge in the
locality that a significant percentage of the Latino
Page 500 U. S. 364
population speaks fluent Spanish, and that many consider it
their preferred language, the one chosen for personal
communication, the one selected for speaking with the most
precision and power, the one used to define the self.
The trial judge can consider these and other factors when
deciding whether a prosecutor intended to discriminate. For
example, though petitioner did not suggest the alternative to the
trial court here, Spanish-speaking jurors could be permitted to
advise the judge in a discreet way of any concerns with the
translation during the course of trial. A prosecutor's persistence
in the desire to exclude Spanish-speaking jurors despite this
measure could be taken into account in determining whether to
accept a race-neutral explanation for the challenge.
The trial judge in this case chose to believe the prosecutor's
race-neutral explanation for striking the two jurors in question,
rejecting petitioner's assertion that the reasons were pretextual.
In
Batson, we explained that the trial court's decision on
the ultimate question of discriminatory intent represents a finding
of fact of the sort accorded great deference on appeal:
"In a recent Title VII sex discrimination case, we stated that
'a finding of intentional discrimination is a finding of fact'
entitled to appropriate deference by a reviewing court.
Anderson v. Bessemer City, 470 U. S.
564,
470 U. S. 573 (1985). Since
the trial judge's findings in the context under consideration here
largely turn on evaluation of credibility, a reviewing court
ordinarily should give those findings great deference.
Id.
at
470 U. S. 575-576."
Batson, supra, 476 U.S. at
476 U. S. 98, n.
21.
Batson's treatment of intent to discriminate as a pure
issue of fact, subject to review under a deferential standard,
accords with our treatment of that issue in other equal protection
cases.
See Hunter v. Underwood, 471 U.
S. 222,
471 U. S. 229
(1985) (Court of Appeals correctly found that District Court
committed clear error in concluding state constitutional
provision
Page 500 U. S. 365
was not adopted out of racial animus);
Rogers v. Lodge,
458 U. S. 613,
458 U. S.
622-623 (1982) (clearly erroneous standard applies to
review of finding that at-large voting system was maintained for
discriminatory purposes);
Dayton Board of Education v.
Brinkman, 443 U. S. 526,
443 U. S. 534
(1979) (affirming Court of Appeals' conclusion that District
Court's failure to find the intentional operation of a dual school
system was clearly erroneous);
Akins v. Texas,
325 U. S. 398,
325 U. S.
401-402 (1945) (great respect accorded to findings of
state court in discriminatory jury selection case);
see also
Miller v. Fenton, 474 U. S. 104,
474 U. S. 113
(1985). As
Batson's citation to
Anderson
suggests, it also corresponds with our treatment of the intent
inquiry under Title VII.
See Pullman-Standard v. Swint,
456 U. S. 273,
456 U. S. 293
(1982).
Deference to trial court findings on the issue of discriminatory
intent makes particular sense in this context because, as we noted
in
Batson, the finding will "largely turn on evaluation of
credibility." 476 U.S. at
476 U. S. 98, n.
21. In the typical peremptory challenge inquiry, the decisive
question will be whether counsel's race-neutral explanation for a
peremptory challenge should be believed. There will seldom be much
evidence bearing on that issue, and the best evidence often will be
the demeanor of the attorney who exercises the challenge. 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."
Wainwright v. Witt, 469 U.
S. 412,
469 U. S. 428
(1985), citing
Patton v. Yount, 467 U.
S. 1025,
467 U. S.
1038 (1984).
The precise formula used for review of fact findings, of course,
depends on the context.
Anderson was a federal civil case,
and we there explained that a federal appellate court reviews the
finding of a district court on the question of intent to
discriminate under Federal Rule of Civil Procedure 52(a), which
permits factual findings to be set aside only if clearly erroneous.
While no comparable rule exists for federal criminal cases, we have
held that the same standard
Page 500 U. S. 366
should apply to review of findings in criminal cases on issues
other than guilt.
Maine v. Taylor, 477 U.
S. 131,
477 U. S. 145
(1986);
Campbell v. United States, 373 U.
S. 487,
373 U. S. 493
(1963); 2 C. Wright, Federal Practice and Procedure § 374 (2d
ed.1982 and Supp.1990). On federal habeas review of a state
conviction, 28 U.S.C. § 2254(d) requires the federal courts to
accord state court factual findings a presumption of
correctness.
This case comes to us on direct review of the state court
judgment. No statute or rule governs our review of facts found by
state courts in cases with this posture. The reasons justifying a
deferential standard of review in other contexts, however, apply
with equal force to our review of a state trial court's findings of
fact made in connection with a federal constitutional claim. Our
cases have indicated that, in the absence of exceptional
circumstances, we would defer to state court factual findings, even
when those findings relate to a constitutional issue.
See 324
Liquor Corp. v. Duffy, 479 U. S. 335,
479 U. S. 351
(1987);
California Liquor Dealers Assn. v. Midcal Aluminum,
Inc., 445 U. S. 97,
445 U. S.
111-112 (1980);
see also Time, Inc. v.
Firestone, 424 U. S. 448,
424 U. S. 463
(1976);
General Motors Corp. v. Washington, 377 U.
S. 436,
377 U. S.
441-442 (1964) (quoting
Norton Co. v. Department of
Revenue of Illinois, 340 U. S. 534,
340 U. S.
537-538 (1951));
Bantam Books, Inc. v.
Sullivan, 372 U. S. 58,
372 U. S. 68
(1963);
Lloyd A. Fry Roofing Co. v. Wood, 344 U.
S. 157,
344 U. S. 160
(1952). Moreover, "an issue does not lose its factual character
merely because its resolution is dispositive of the ultimate
constitutional question."
Miller v. Fenton, supra, 474
U.S. at
474 U. S. 113
(citing
Dayton Board of Education v. Brinkman, supra).
Petitioner advocates "independent" appellate review of a trial
court's rejection of a
Batson claim. We have difficulty
understanding the nature of the review petitioner would have us
conduct. Petitioner explains that
"[i]ndependent review requires the appellate court to accept the
findings of historical fact and credibility of the lower court
unless they are
Page 500 U. S. 367
clearly erroneous. Then, based on these facts, the appellate
court independently determines whether there has been
discrimination."
Reply Brief for Petitioner 17. But if an appellate court accepts
a trial court's finding that a prosecutor's race-neutral
explanation for his peremptory challenges should be believed, we
fail to see how the appellate court nevertheless could find
discrimination. The credibility of the prosecutor's explanation
goes to the heart of the equal protection analysis, and once that
has been settled, there seems nothing left to review.
Petitioner seeks support for his argument in
Bose Corp. v.
Consumers Union of United States, Inc., 466 U.
S. 485 (1984) and
Miller v. Fenton, supra.
Bose Corp. dealt with review of a trial court's finding of
"actual malice," a First Amendment precondition to liability in a
defamation case, holding that an appellate court "must exercise
independent judgment and determine whether the record establishes
actual malice with convincing clarity." 466 U.S. at
466 U. S. 514.
Miller accorded similar treatment to a finding that a
confession was voluntary. 474 U.S. at
474 U. S. 110.
Those cases have no relevance to the matter before us. They turn on
the Court's determination that findings of voluntariness or actual
malice involve legal, as well as factual, elements.
See Miller,
supra, at
474 U. S.
115-117;
Bose Corp., supra, 466 U.S. at
466 U. S.
501-502;
see also Harte-Hanks Communications, Inc.
v. Connaughton, 491 U. S. 657,
491 U. S. 685
(1989) ("The question whether the evidence in the record in a
defamation case is sufficient to support a finding of actual malice
is a question of law"). Whether a prosecutor intended to
discriminate on the basis of race in challenging potential jurors
is, as
Batson recognized, a question of historical
fact.
Petitioner also looks to a line of this Court's decisions
reviewing state court challenges to jury selection procedures. Many
of these cases, following
Norris v. Alabama, 294 U.
S. 587 (1935), have emphasized this Court's duty to
"analyze the facts in order that the appropriate enforcement of the
federal
Page 500 U. S. 368
right may be assured,"
id. at
294 U. S. 590,
or to "make independent inquiry and determination of the disputed
facts,"
Pierre v. Louisiana, 306 U.
S. 354,
306 U. S. 358
(1939).
See, e.g., Whitus v. Georgia, 385 U.
S. 545,
385 U. S. 550
(1967);
Avery v. Georgia, 345 U.
S. 559,
345 U. S. 561
(1953);
Patton v. Mississippi, 332 U.
S. 463,
332 U. S. 466
(1947);
Smith v. Texas, 311 U. S. 128,
311 U. S. 130
(1940). The review provided for in those cases, however, leaves
room for deference to state court factual determinations, in
particular on issues of credibility. For instance, in
Akins v.
Texas, 325 U. S. 398
(1945), we said:
"[T]he transcript of the evidence presents certain
inconsistencies and conflicts of testimony in regard to limiting
the number of Negroes on the grand jury. Therefore, the trier of
fact who heard the witnesses in full and observed their demeanor on
the stand has a better opportunity than a reviewing court to reach
a correct conclusion as to the existence of that type of
discrimination. While our duty, in reviewing a conviction upon a
complaint that the procedure through which it was obtained violates
due process and equal protection under the Fourteenth Amendment,
calls for our examination of evidence to determine for ourselves
whether a federal constitutional right has been denied, expressly
or in substance and effect,
Norris v. Alabama,
294 U. S.
587,
294 U. S. 589-90;
Smith
v. Texas, 311 U. S. 128,
311 U. S.
130, we accord in that examination great respect to the
conclusions of the state judiciary,
Pierre v. Louisiana,
306 U. S.
354,
306 U. S. 358. That respect
leads us to accept the conclusion of the trier on disputed issues
'unless it is so lacking in support in the evidence that to give it
effect would work that fundamental unfairness which is at war with
due process,'
Lisenba v. California, 314 U. S.
219,
314 U. S. 238 [(1941)], or
equal protection.
Cf. Ashcraft v. Tennessee, 322 U. S.
143,
322 U. S. 152,
322 U. S.
153;
Malinski v. New York, 324 U. S.
401,
324 U. S. 404."
Id. at
325 U. S.
401-402.
Page 500 U. S. 369
Other cases in the
Norris line also express our respect
for factual findings made by state courts.
See Whitus,
supra, 385 U.S. at
385 U. S. 550;
Pierre, supra, 306 U.S. at
306 U. S.
358.
In the case before us, we decline to overturn the state trial
court's finding on the issue of discriminatory intent unless
convinced that its determination was clearly erroneous. It "would
pervert the concept of federalism,"
Bose Corp., supra, 466
U.S. at
466 U. S. 499,
to conduct a more searching review of findings made in state trial
court than we conduct with respect to federal district court
findings. As a general matter, we think the
Norris line of
cases reconcilable with this clear error standard of review. In
those cases, the evidence was such that a "reviewing court, on the
entire evidence, [would be] left with the definite and firm
conviction that a mistake ha[d] been committed."
United States
v. United States Gypsum Co., 333 U. S. 364,
333 U. S. 395
(1948). For instance, in
Norris itself, uncontradicted
testimony showed that "no negro had served on any grand or petit
jury in [Jackson County, Alabama] within the memory of witnesses
who had lived there all their lives." 294 U.S. at
294 U. S. 591;
see also Avery v. Georgia, supra, 345 U.S. at
345 U. S.
560-561;
Patton v. Mississippi, supra, 332 U.S.
at
332 U. S. 466;
Smith v. Texas, supra, 311 U.S. at
311 U. S. 131.
In circumstances such as those, a finding of no discrimination was
simply too incredible to be accepted by this Court.
We discern no clear error in the state trial court's
determination that the prosecutor did not discriminate on the basis
of the ethnicity of Latino jurors. We have said that "[w]here there
are two permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous."
Anderson v. Bessemer
City, 470 U. S. 564,
470 U. S. 574
(1985). The trial court took a permissible view of the evidence in
crediting the prosecutor's explanation. Apart from the prosecutor's
demeanor, which of course we have no opportunity to review, the
court could have relied on the facts that the prosecutor defended
his use of peremptory challenges without being asked to do so by
the judge, that he did not know which
Page 500 U. S. 370
jurors were Latinos, and that the ethnicity of the victims and
prosecution witnesses tended to undercut any motive to exclude
Latinos from the jury. Any of these factors could be taken as
evidence of the prosecutor's sincerity. The trial court, moreover,
could rely on the fact that only three challenged jurors can with
confidence be identified as Latinos, and that the prosecutor had a
verifiable and legitimate explanation for two of those challenges.
Given these factors, that the prosecutor also excluded one or two
Latino venirepersons on the basis of a subjective criterion having
a disproportionate impact on Latinos does not leave us with a
"definite and firm conviction that a mistake has been committed."
United States v. United States Gypsum Co., supra, 333 U.S.
at
333 U. S.
395.
D
Language permits an individual to express both a personal
identity and membership in a community, and those who share a
common language may interact in ways more intimate than those
without this bond. Bilinguals, in a sense, inhabit two communities,
and serve to bring them closer. Indeed, some scholarly comment
suggests that people proficient in two languages may not at times
think in one language to the exclusion of the other. The analogy is
that of a high-hurdler, who combines the ability to sprint and to
jump to accomplish a third feat with characteristics of its own,
rather than two separate functions. Grosjean, The Bilingual as a
Competent but Specific Speaker-Hearer, 6 J. Multilingual &
Multicultural Development 467 (1985). This is not to say that the
cognitive processes and reactions of those who speak two languages
are susceptible of easy generalization, for even the term
"bilingual" does not describe a uniform category. It is a simple
word for a more complex phenomenon with many distinct categories
and subdivisions. Sanchez, Our Linguistic and Social Context, in
Spanish in the United States 9, 12 (J. Amastae & Elias-Olivares
1982); Dodson, Second Language Acquisition and Bilingual
Development:
Page 500 U. S. 371
A Theoretical Framework, 6 J. Multilingual & Multicultural
Development 325, 326-327 (1985).
Our decision today does not imply that exclusion of bilinguals
from jury service is wise, or even that it is constitutional in all
cases. It is a harsh paradox that one may become proficient enough
in English to participate in trial,
see, e.g., 28 U.S.C.
§§ 1865(b)(2), (3) (English language ability required for federal
jury service), only to encounter disqualification because he knows
a second language as well. As the Court observed in a somewhat
related context:
"Mere knowledge of [a foreign] language cannot reasonably be
regarded as harmful. Heretofore it has been commonly looked upon as
helpful and desirable."
Meyer v. Nebraska, 262 U. S. 390,
262 U. S. 400
(1923).
Just as shared language can serve to foster community, language
differences can be a source of division. Language elicits a
response from others, ranging from admiration and respect, to
distance and alienation, to ridicule and scorn. Reactions of the
latter type all too often result from or initiate racial hostility.
In holding that a race-neutral reason for a peremptory challenge
means a reason other than race, we do not resolve the more
difficult question of the breadth with which the concept of race
should be defined for equal protection purposes. We would face a
quite different case if the prosecutor had justified his peremptory
challenges with the explanation that he did not want
Spanish-speaking jurors. It may well be, for certain ethnic groups
and in some communities, that proficiency in a particular language,
like skin color, should be treated as a surrogate for race under an
equal protection analysis.
Cf. Yu Cong Eng v. Trinidad,
271 U. S. 500
(1926) (law prohibiting keeping business records in other than
specified languages violated equal protection rights of Chinese
businessmen);
Meyer v. Nebraska, supra, (striking down law
prohibiting grade schools from teaching languages other than
English). And, as we make clear, a policy of striking all who speak
a given language,
Page 500 U. S. 372
without regard to the particular circumstances of the trial or
the individual responses of the jurors, may be found by the trial
judge to be a pretext for racial discrimination. But that case is
not before us.
III
We find no error in the application by the New York courts of
the three-step
Batson analysis. The standard inquiry into
the objecting party's
prima facie case was unnecessary,
given the course of proceedings in the trial court. The state
courts came to the proper conclusion that the prosecutor offered a
race-neutral basis for his exercise of peremptory challenges. The
trial court did not commit clear error in choosing to believe the
reasons given by the prosecutor.
Affirmed.
[
Footnote 1]
The prosecutor later gave the same explanation for challenging
the bilingual potential jurors:
". . . I felt that, from their answers, they would be hard
pressed to accept what the interpreter said as the final thing on
what the record would be, and I even had to ask the Judge to
question them on that, and their answers were -- I thought they
both indicated that they would have trouble, although their final
answer was they could do it. I just felt from the hesitancy in
their answers and their lack of eye contact that they would not be
able to do it."
App. 6.
[
Footnote 2]
The trial judge appears to have accepted the prosecutor's
reasoning as to his motivation. In response to a charge by defense
counsel that the prosecutor excluded Latino jurors out of fear that
they would sympathize with the defendant, the judge stated:
"The victims are all Hispanics, he said, and, therefore, they
will be testifying for the People, so there could be sympathy for
them as well as for the defendant, so he said [it] would not seem
logical in this case he would look to throw off Hispanics, because
I don't think that his logic is wrong. They might feel sorry for a
guy who's had a bullet hole through him, he's Hispanic, so they may
relate to him more than they'll relate to the shooter."
Id. at 8.
[
Footnote 3]
Respondent cites
United States v. Perez, 658 F.2d 654
(CA9 1981), which illustrates the sort of problems that may arise
where a juror fails to accept the official translation of foreign
language testimony. In
Perez, the following interchange
occurred:
"DOROTHY KIM (JUROR No. 8): Your Honor, is it proper to ask the
interpreter a question? I'm uncertain about the word La Vado
[
sic]. You say that is a bar."
"THE COURT: The Court cannot permit jurors to ask questions
directly. If you want to phrase your question to me -- "
"DOROTHY KIM: I understood it to be a restroom. I could better
believe they would meet in a restroom rather than a public bar if
he is undercover."
"THE COURT: These are matters for you to consider. If you have
any misunderstanding of what the witness testified to, tell the
Court now what you didn't understand and we'll place the -- "
"DOROTHY KIM: I understand the word La Vado [
sic] -- I
thought it meant restroom. She translates it as bar."
"MS. IANZITI: In the first place, the jurors are not to listen
to the Spanish, but to the English. I am a certified court
interpreter."
"DOROTHY KIM: You're an idiot."
Id. at 662. Upon further questioning, "the witness
indicated that none of the conversations in issue occurred in the
restroom."
Id. at 663. The juror later explained that she
had said "
it's an idiom'" rather than "`you're an idiot,'" but
she was nevertheless dismissed from the jury.
Ibid.
JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, concurring in
the judgment.
I agree with the plurality that we review for clear error the
trial court's finding as to discriminatory intent, and agree with
its analysis of this issue. I agree also that the finding of no
discriminatory intent was not clearly erroneous in this case. I
write separately because I believe that the plurality opinion goes
farther than it needs to in assessing the constitutionality of the
prosecutor's asserted justification for his peremptory strikes.
Upon resolution of the factfinding questions, this case is
straightforward. Hernandez asserts an equal protection violation
under the rule of
Batson v. Kentucky, 476 U. S.
79 (1986). In order to demonstrate such a violation,
Hernandez must prove that the prosecutor intentionally
discriminated against Hispanic jurors on the basis of their race.
The trial court found that the prosecutor did not have such intent,
and that determination is not clearly erroneous. Hernandez has
failed to meet his burden.
An unwavering line of cases from this Court holds that a
violation of the Equal Protection Clause requires state action
Page 500 U. S. 373
motivated by discriminatory intent; the disproportionate effects
of state action are not sufficient to establish such a violation.
In
Washington v. Davis, 426 U. S. 229,
426 U. S. 239
(1976), we explained that
"our cases have not embraced the proposition that a law or other
official act, without regard to whether it reflects a racially
discriminatory purpose, is unconstitutional
solely because
it has a racially disproportionate impact."
"[A] defendant who alleges an equal protection violation has the
burden of proving
the existence of purposeful discrimination.'"
McCleskey v. Kemp, 481 U. S. 279,
481 U. S. 292
(1987). See also Arlington Heights v. Metropolitan Housing
Development Corp., 429 U. S. 252,
429 U. S.
264-265 (1977); Keyes v. School Dist. No. 1, Denver,
Colo., 413 U. S. 189,
413 U. S. 198
(1973); Wright v. Rockefeller, 376 U. S.
52, 376 U. S. 56-57
(1964).
We have recognized the discriminatory intent requirement
explicitly in the context of jury selection. Thus,
"[a] purpose to discriminate must be present which may be proven
by systematic exclusion of eligible jurymen of the proscribed race
or by unequal application of the law to such an extent as to show
intentional discrimination."
Akins v. Texas, 325 U. S. 398,
325 U. S.
403-404 (1945).
See also Alexander v.
Louisiana, 405 U. S. 625,
405 U. S.
628-629 (1972);
Whitus v. Georgia, 385 U.
S. 545,
385 U. S.
549-550 (1967);
Norris v. Alabama, 294 U.
S. 587,
294 U. S. 589
(1935);
Neal v. Delaware, 103 U.
S. 370,
103 U. S. 394
(1881). The point was made clearly in
Batson itself:
"As in any equal protection case, the 'burden is, of course,' on
the defendant who alleges discriminatory selection . . . 'to prove
the existence of purposeful discrimination.'"
476 U.S. at
476 U. S. 93,
quoting
Whitus, supra, 385 U.S. at
385 U. S.
550.
Consistent with our established equal protection jurisprudence,
a peremptory strike will constitute a
Batson violation
only if the prosecutor struck a juror
because of the juror's
race.
"[T]he Equal Protection Clause forbids the prosecutor to
challenge potential jurors
solely on account of their race
or on the assumption that
[Hispanic] jurors as a group
will be unable impartially to consider the State's case."
Batson,
Page 500 U. S. 374
476 U.S. at
476 U. S. 89
(emphasis added).
See also Powers v. Ohio, 499 U.S. (1991)
("the Equal Protection Clause prohibits a prosecutor from using the
State's peremptory challenges to exclude otherwise qualified and
unbiased persons from the petit jury solely by reason of their
race").
Batson's requirement of a race-neutral explanation
means an explanation other than race.
In
Washington v. Davis, supra, we outlined the dangers
of a rule that would allow an equal protection violation on a
finding of mere disproportionate effect. Such a rule would give
rise to an unending stream of constitutional challenges:
"A rule that [state action] designed to serve neutral ends is
nevertheless invalid, absent compelling justification, if in
practice it benefits or burdens one race more than another would be
far-reaching, and would raise serious questions about, and perhaps
invalidate, a whole range of tax, welfare, public service,
regulatory, and licensing statutes that may be more burdensome to
the poor and to the average black than to the more affluent
white."
Id. 426 U.S. at
426 U. S.
248.
In the same way, a rule that disproportionate effect might be
sufficient for an equal protection violation in the use of
peremptory strikes runs the serious risk of turning
voir
dire into a full-blown disparate impact trial, with
statistical evidence and expert testimony on the discriminatory
effect of any particular nonracial classification. In addition to
creating unacceptable delays in the trial process, such a practice
would be antithetical to the nature and purpose of the peremptory
challenge. Absent intentional discrimination violative of the Equal
Protection Clause, parties should be free to exercise their
peremptory strikes for any reason, or no reason at all. The
peremptory challenge is, "as Blackstone says, an arbitrary and
capricious right; and it must be exercised with full freedom, or it
fails of its full purpose."
Lewis v. United States,
146 U. S. 370,
146 U. S. 378
(1892) (internal quotations omitted).
Page 500 U. S. 375
In this case, the prosecutor's asserted justification for
striking certain Hispanic jurors was his uncertainty about the
jurors' ability to accept the official translation of trial
testimony. App. 3-4. If this truly was the purpose of the strikes,
they were not strikes because of race, and therefore did not
violate the Equal Protection Clause under
Batson. They may
have acted like strikes based on race, but they were not based on
race. No matter how closely tied or significantly correlated to
race the explanation for a peremptory strike may be, the strike
does not implicate the Equal Protection Clause unless it is based
on race. That is the distinction between disproportionate effect,
which is not sufficient to constitute an equal protection
violation, and intentional discrimination, which is.
Disproportionate effect may, of course, constitute evidence of
intentional discrimination. The trial court may, because of such
effect, disbelieve the prosecutor and find that the asserted
justification is merely a pretext for intentional race-based
discrimination.
See Batson, supra, 476 U.S. at
476 U. S. 93.
But if, as in this case, the trial court believes the prosecutor's
nonracial justification, and that finding is not clearly erroneous,
that is the end of the matter.
Batson does not require
that a prosecutor justify a jury strike at the level of a for-cause
challenge. It also does not require that the justification be
unrelated to race.
Batson requires only that the
prosecutor's reason for striking a juror not
be the
juror's race.
JUSTICE BLACKMUN, dissenting.
I dissent, essentially for the reasons stated by JUSTICE STEVENS
in Part II of his opinion,
post, at
500 U. S.
378-379.
JUSTICE STEVENS, with whom JUSTICE MARSHALL joins,
dissenting.
A violation of the Equal Protection Clause requires what our
cases characterize as proof of "discriminatory purpose." By
definition, however, a
prima facie case is one that is
established by the requisite proof of invidious intent. Unless
Page 500 U. S. 376
the prosecutor comes forward with an explanation for his
peremptories that is sufficient to rebut that
prima facie
case, no additional evidence of racial animus is required to
establish an equal protection violation. In my opinion, the Court
therefore errs when it concludes that a defendant's
Batson
challenge fails whenever the prosecutor advances a nonpretextual
justification that is not facially discriminatory.
I
In
Batson v. Kentucky, 476 U. S.
79 (1986), we held that "a
pattern' of strikes
against black jurors included in the particular venire might give
rise to an inference of discrimination" sufficient to satisfy the
defendant's burden of proving an equal protection violation.
Id. at 476 U. S. 97.
"Once the defendant makes a prima facie showing, the
burden shifts to the State to come forward with a neutral
explanation." Ibid. If the prosecutor offers no
explanation, the defendant has succeeded in establishing an equal
protection violation based on the evidence of invidious intent that
gave rise to the prima facie case. If the prosecutor seeks
to dispel the inference of discriminatory intent, in order to
succeed, his explanation "need not rise to the level justifying
exercise of a challenge for cause." Ibid. However, the
prosecutor's justification must identify "`legitimate reasons'"
that are "related to the particular case to be tried" and
sufficiently persuasive to "rebu[t] a defendant's prima
facie case." Batson, 476 U.S. at 476 U. S. 98,
and n. 20.
An avowed justification that has a significant disproportionate
impact will rarely qualify as a legitimate, race-neutral reason
sufficient to rebut the
prima facie case, because
disparate impact is itself evidence of discriminatory purpose.
See Arlington Heights v. Metropolitan Housing Development
Corp., 429 U. S. 252,
429 U. S.
265-266 (1977);
Washington v. Davis,
426 U. S. 229,
426 U. S. 242
(1976). An explanation based on a concern that can easily be
accommodated by means less drastic than excluding the challenged
venireperson from the petit jury will also generally not qualify as
a legitimate reason, because
Page 500 U. S. 377
it is not, in fact, "related to the particular case to be
tried."
Batson, 476 U.S. at
476 U. S. 98;
see Albermarle Paper Co. v. Moody, 422 U.
S. 405,
422 U. S. 425
(1975) (availability of nondiscriminatory alternative is evidence
of discriminatory motive).
Cf. also Richmond v. J.A. Croson
Co., 488 U. S. 469,
488 U. S. 507
(1989) (State cannot make race-based distinctions if there are
equally effective nondiscriminatory alternatives). And, as in any
other equal protection challenge to a government classification, a
justification that is frivolous or illegitimate should not suffice
to rebut the
prima facie case.
See, e.g., Cleburne v.
Cleburne Living Center, Inc., 473 U.
S. 432 (1985);
id. at
473 U. S. 452
(STEVENS, J., concurring);
Western & Southern Life
Insurance Co. v. State Board of Equalization of California,
451 U. S. 648,
451 U. S. 677
(1981) (STEVENS, J., dissenting).
If any explanation, no matter how insubstantial and no matter
how great its disparate impact, could rebut a
prima facie
inference of discrimination provided only that the explanation
itself was not facially discriminatory, "the Equal Protection
Clause
would be but a vain and illusory requirement.'"
Batson, 476 U.S. at 476 U. S. 98
(quoting Norris v. Alabama, 294 U.
S. 587, 294 U. S. 598
(1935)). The Court mistakenly believes that it is compelled to
reach this result because an equal protection violation requires
discriminatory purpose. See ante at 500 U. S.
359-360, 500 U. S. 364.
The Court overlooks, however, the fact that the "discriminatory
purpose" which characterizes violations of the Equal Protection
Clause can sometimes be established by objective evidence that is
consistent with a decisionmaker's honest belief that his motive was
entirely benign. "Frequently the most probative evidence of intent
will be objective evidence of what actually happened,"
Washington v. Davis, 426 U.S. at 426 U. S. 253
(STEVENS, J., concurring), including evidence of disparate impact.
See, e.g., Yick Wo v. Hopkins, 118 U.
S. 356 (1886); Gomillion v. Lightfoot,
364 U. S. 339
(1960); Sims v. Georgia, 389 U. S. 404,
389 U. S. 407
(1967); Turner v. Fouche, 396 U.
S. 346, 396 U. S. 359
(1970). The line between discriminatory purpose and discriminatory
impact is
Page 500 U. S. 378
neither as bright nor as critical as the Court appears to
believe. [
Footnote 2/1]
The Court therefore errs in focusing the entire inquiry on the
subjective state of mind of the prosecutor. In jury selection
challenges, the requisite invidious intent is established once the
defendant makes out a
prima facie case. No additional
evidence of this intent is necessary unless the explanation
provided by the prosecutor is sufficiently powerful to rebut the
prima facie proof of discriminatory purpose. By requiring
that the prosecutor's explanation itself provide additional, direct
evidence of discriminatory motive, the Court has imposed on the
defendant the added requirement that he generate evidence of the
prosecutor's actual subjective intent to discriminate. Neither
Batson nor our other equal protection holdings demand such
a heightened quantum of proof.
II
Applying the principles outlined above to the facts of this
case, I would reject the prosecutor's explanation without
Page 500 U. S. 379
reaching the question whether the explanation was pretextual.
Neither the Court nor respondent disputes that petitioner made out
a
prima facie case.
See ante at
500 U. S. 359.
Even assuming the prosecutor's explanation in rebuttal was advanced
in good faith, the justification proffered was insufficient to
dispel the existing inference of racial animus.
The prosecutor's explanation was insufficient for three reasons.
First, the justification would inevitably result in a
disproportionate disqualification of Spanish-speaking
venirepersons. An explanation that is "race-neutral" on its face is
nonetheless unacceptable if it is merely a proxy for a
discriminatory practice. Second, the prosecutor's concern could
easily have been accommodated by less drastic means. As is the
practice in many jurisdictions, the jury could have been instructed
that the official translation alone is evidence; bilingual jurors
could have been instructed to bring to the attention of the judge
any disagreements they might have with the translation, so that any
disputes could be resolved by the court.
See, e.g., United
States v. Perez, 658 F.2d 654, 662-663 (CA9 1981). [
Footnote 2/2] Third, if the prosecutor's
concern was valid and substantiated by the record, it would have
supported a challenge for cause. The fact that the prosecutor did
not make any such challenge,
see App. 9, should disqualify
him from advancing the concern as a justification for a peremptory
challenge.
Each of these reasons, considered alone, might not render
insufficient the prosecutor's facially neutral explanation. In
combination, however, they persuade me that his explanation should
have been rejected as a matter of law. Accordingly, I respectfully
dissent.
[
Footnote 2/1]
In
Washington v. Davis, 426 U.
S. 229 (1976) (concurring opinion), I noted that the
term "purposeful discrimination" has been used in many different
contexts.
"Although it may be proper to use the same language to describe
the constitutional claim in each of these contexts, the burden of
proving a
prima facie case may well involve differing
evidentiary considerations. The extent of deference that one pays
to the trial court's determination of the factual issue, and
indeed, the extent to which one characterizes the intent issue as a
question of fact or a question of law, will vary in different
contexts."
"Frequently the most probative evidence of intent will be
objective evidence of what actually happened, rather than evidence
describing the subjective state of mind of the actor. . . ."
"My point in making this observation is to suggest that the line
between discriminatory purpose and discriminatory impact is not
nearly as bright, and perhaps not quite as critical, as the reader
of the Court's opinion might assume. I agree, of course, that a
constitutional issue does not arise every time some
disproportionate impact is shown. On the other hand, when the
disproportion is as dramatic as in
Gomillion v. Lightfoot,
364 U. S.
339, or
Yick Wo v. Hopkins, 118 U. S.
356, it really does not matter whether the standard is
phrased in terms of purpose or effect."
Id. at
426 U. S.
253-254.
[
Footnote 2/2]
An even more effective solution would be to employ a translator,
who is the only person who hears the witness' words and who
simultaneously translates them into English, thus permitting the
jury to hear only the official translation.