Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

Jury Selection in the Criminal Trial—Protecting your Professional Integrity
Part Two of a Two Part Series: The Importance of a Good Record

Part One of this two part series discussed the interests at stake during jury selection in a criminal trial, including the professional integrity of the defense and the prosecution since both are prohibited from employing peremptory challenges based solely on group bias—otherwise known as a “Wheeler violation.”1 This type of misconduct by either party can result in judicially imposed monetary sanctions and a State Bar referral.  If a reviewing court finds that the trial court erroneously denied defendant’s Wheeler motion, the case will be reversed because “[t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude....” (People v. Silva (2001) 25 Cal.4th 345, 386 (Silva).)  In that event, the prosecutor may be referred to the State Bar.  In light of these potential consequences, an attorney accused of a Wheeler violation should insist the matter be carefully handled which includes making a good record.

When a party brings a “Wheeler motion” and accuses the other of exercising improper peremptory challenges, the following procedure applies: (1) the moving party carries the burden to make a prima facie case by showing that the facts give rise to an inference of discriminatory purpose; (2) the burden then shifts to the other party to explain the exclusion by offering permissible justifications for the juror’s removal; and (3) if an explanation is tendered, the trial court must decide whether the moving party has proved purposeful discrimination. (People v. Johnson (2005) 545 U.S. 162; People v. Cowan (2010) 50 Cal.4th 401.)  This procedure applies regardless of whether the motion is against the prosecution or the defense.  Even so, Wheeler and its progeny predominately deal with allegations against the prosecution, and the recent case of People v. Long (2010) 190 Cal.App.4th 826 illustrates the unfortunate outcome when a prosecutor and the court fail to make a good record during a Wheeler challenge.

In Long, the Vietnamese defendant asserted on appeal that the trial court erred in denying his Wheeler motion against the prosecutor who used three peremptory challenges to excuse jurors who “appeared Vietnamese.” (Id. at 839.)  The first of the three was the subject of the appeal.  At trial, the prosecutor had explained that the subject juror wasn’t participating in the voir dire discussion, did not make eye contact, and she was not comfortable with his body language or the way he expressed himself.  (Id. at 839-840.)  To these explanations the trial court responded, “...I am satisfied by the People’s explanation” that the reasons given were “legitimate” and not based on the individual’s national origins.  (Id. at 840.)  The court later attempted to perfect the record and stated, "...After hearing [the prosecutor’s] reasons, I reviewed my notes and observations and concluded that they were each removed for a nonrace-based reason...”  (Id. at 840-841; citations omitted.)   

A reviewing court will give great deference to the trial court as long as the “trial court has made a sincere and reasoned attempt to evaluate each stated reason as applies to each challenged juror....”  (Silva, supra, 25 Cal.4th at 385-386 [emphasis added].)  When the prosecutor's stated reasons are inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings.  If the prosecutor's reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a general finding that the reasons are sufficient.  (Ibid.)

The Long court refused to extend this deference to the trial court’s conclusory finding.  The prosecutor’s explanation was “virtually unverifiable and unverified” since it was based on an unrecorded aspect of the juror’s appearance and demeanor, neither of which the prosecutor or the court bothered to describe for the record.  In fact, the record contradicted the prosecutor’s explanation. (Long, supra, 190 Cal.App.4th at 825-826.)   

The Long decision recognizes that an adequate record is critical for meaningful review.  The attorneys and the trial court bear responsibility for creating the record.  Attorneys faced with a Wheeler challenge should compel the court to take a break in the action.  Attorneys should provide as complete an explanation as possible, which involves taking accurate notes, making sure that the record actually reflects their reasoning, and insisting that the court is making the appropriate fact based, specific findings for adequate appellate review.  A silent record that doesn’t corroborate the stated reasons and doesn’t show that the trial court conducted the proper analysis not only compromises the case, but jeopardizes an attorney’s professional integrity.

--Bryn Kirvin

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis.  Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**


1People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).)