United States v. Collins ( 2009 )

GRABER, Circuit Judge,

concurring:

I concur fully in the opinion. I write separately only to encourage prosecutors to state their reasons for peremptory strikes at the time of a Batson challenge.

As the opinion correctly holds, of course, if no prima facie case of discrimination has been made, a prosecutor is not required to give any explanation. The right to challenge a juror without cause is one that any litigant understandably wishes to guard. On the other hand, the burden of explaining the reasons for a challenge — in the alternative to arguing that no explanation is required — is minimal. Judicial economy would be well served. See, e.g., Paulino v. Harrison, 542 F.3d 692 (9th Cir.2008) (in a second appeal, upholding habeas relief in a Batson case when the prosecutor could not remember her reasons for exercising peremptory challenges at an evidentiary hearing held eight years after the trial). So would confidence in the fairness of a trial because, in fact, prosecutors usually have good and permissible reasons for their challenges; refusing to state them can create unnecessary suspicion, as well as unnecessary litigation.