to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner: Cynthia H. Coffman, Attorney
General Kevin E. McReynolds, Assistant Attorney General
Attorney for Respondent: Michelle Lee Lazar Denver, Colorado.
Attorneys for Amicus Curiae Colorado Criminal Defense Bar:
Colorado Criminal Defense Bar and University of Colorado
School of Law Margaret Ann England Scott Adam Moss Boulder,
This case concerns the third step of the analysis laid out in
Batson v. Kentucky, 476 U.S. 79 (1986), which
requires trial courts to determine whether a party raising a
Batson objection proved by a preponderance of the
evidence that opposing counsel exercised a peremptory
challenge to excuse a potential juror on the basis of race or
gender. Specifically, we consider whether the court of
appeals erred in its review of the trial court's
Batson ruling by: (1) remanding for specific
credibility findings of the prosecution's
non-demeanor-based reasons for its peremptory challenges, (2)
refusing to credit the prosecution's demeanor-based
reasons because the trial court did not expressly find them
to be credible, and (3) conducting flawed comparative juror
First, we hold that an appellate court conducting a clear
error review should defer to a trial court's ultimate
Batson ruling so long as the record reflects that
the trial court weighed all of the pertinent circumstances
and it supports the court's conclusion as to whether the
objecting party proved purposeful discrimination by a
preponderance of the evidence. Second, we hold that a trial
court's failure to make specific credibility findings
about demeanor-based reasons does not-on its own-prevent a
reviewing court from concluding that the trial court credited
those reasons. Third, we hold that appellate courts may
conduct comparative juror analyses despite an objecting
party's failure to argue a comparison to the trial court,
but only where the record facilitates a comparison of whether
the jurors are similarly situated. An empaneled juror is
similarly situated to a dismissed potential juror for the
purposes of an appellate court's comparative juror
analysis if the empaneled juror shares the same
characteristics for which the striking party dismissed the
We conclude that the trial court here did not commit clear
error in step three of its Batson analysis and that
remand is unnecessary. We therefore reverse the judgment of
the court of appeals.
Facts and Procedural History
The People charged Heather Beauvais with extortion and three
counts of stalking in connection with her repeated attempts
to contact a man whom she met on the internet. The matter
proceeded to a jury trial. To begin jury selection, the court
seated twenty-five potential jurors in the jury box and
placed the remainder of the venire in the back of the
courtroom in the order that they would be called to replace
jurors who were later excused. During jury selection,
potential jurors provided some basic information about their
families, occupations, prior jury service, and connections to
people working in law enforcement. The court informed the
venire of applicable legal concepts, inquired about any
hardships the jurors might suffer if selected to serve, and
asked the jurors about their willingness to take an oath to
follow the law. The parties then conducted voir dire of the
twenty-five jurors in the jury box. The parties agreed to
excuse six potential jurors-three women and three men-for
cause or hardship. As the court excused each person, the
potential juror from the back of the courtroom who was next
in order entered the jury box and assumed the excused
juror's seat. The trial court asked each of these
replacements to answer the initial background questions and
then allowed the parties to question them.
After both sides passed the jurors for cause, the trial court
gave each side the opportunity to exercise its peremptory
challenges. Each party had six available peremptory
challenges and, beginning with the prosecution, alternated as
they excused jurors one by one. The parties could only use a
peremptory challenge on the first thirteen jurors seated in
the box. When a party excused a potential juror using a
peremptory challenge from the first thirteen positions, the
next potential juror in line from the remaining jurors would
assume that juror's number and seat. As a result, the
parties knew who the replacement juror would be when they
exercised a peremptory challenge. As the parties exercised
each peremptory challenge, the court released the excused
potential jurors from jury duty and allowed them to leave the
The prosecution excused a total of five jurors, all of whom
were women, while Beauvais excused six jurors, all of whom
were men. The final jury consisted of nine male and three
female jurors, with a female alternate juror. The record
indicates that the last potential juror in the jury box, who
was not empaneled because the prosecution did not exercise
its final peremptory challenge, was also female.
Beauvais objected under Batson after the
prosecution's third, fourth, and fifth uses of its
peremptory challenges, arguing that the prosecution's
decision to excuse only women established a prima facie case
of discrimination. The trial court deferred ruling on the
objections until both sides finished using their peremptory
challenges. At that point, Beauvais highlighted that,
although thirteen of the thirty-one potential jurors in the
initial venire were women, only four would serve on the jury
because the court had excused three for cause or hardship,
the prosecution had peremptorily excused five, and one was
never empaneled because the prosecution had waived its final
challenge. Finally, Beauvais also argued that none of the
excused women had given responses that would indicate a
pro-defendant bias, while some had even given responses
traditionally considered favorable to the prosecution.
The prosecutor began his response by admitting that it had
been some time since he had encountered Batson and
that he had "never heard it [argued] in terms of
gender." He contended that, in any event, Beauvais had
failed to make a prima facie showing of discrimination that
would warrant a full Batson analysis because four
women (including the alternate) remained on the jury.
The trial court disagreed. Recognizing that the prosecution
had exercised all of its peremptory challenges to excuse
women, the court found that Beauvais had established a prima
facie case of discrimination and, proceeding to step two of
Batson, required the prosecution to provide
gender-neutral reasons for its challenges. In response, the
prosecutor offered several reasons for each peremptory
Juror [S.B.], looked
disinterested during the questioning. She offered no-
she never raised her hand for any issue. Never nodded when
another juror spoke and oftentimes was looking away from me
during my questioning looking at her watch. She appeared to
me to be young and had no kids.
Juror [L.G.], during the period when we were
waiting for the remainder of the jurors to come back[, ] she
was in the back of the courtroom and she was coughing
heavily. I don't know if she was sick. She never
indicated on the record that she was sick. But that was the
impression I got.
Her husband is in the legal field. She has two daughters. One
of which she said was stalked. I think it is inappropriate to
have someone whose family member so closely alleged to have
been a victim of the same crime that we're charging here.
Juror [K.G.], is in college. . . . Has no
kids. Appeared to be young. And it sounds as though she had a
relationship with a large amount of law enforcement officers
from the community from which she came to Denver.
Juror [A.B.], is also in college. Appeared
to me to be young. Does not have any kids and did not expand
on any of her comments when asked specifically about what we
had spoken with [sic] prior to her getting on the panel. She
seemed dead pan to me and gave no detailed explanations of
why she was saying yes or no.
Juror [J.T.], also currently in college. . .
. She also appeared young. Appeared disinterested. Did not
volunteer any answers to my questions, although I tried to
make eye contact with her to engage her in conversation. She
never raised her hand or volunteered any information.
The trial court then gave Beauvais an opportunity to respond
to the prosecution's reasons. Beauvais argued that many
of the prosecution's reasons were pretextual. As relevant
here, Beauvais first asserted that four men on the jury did
not have children, even though the prosecution partially
based its challenges to three female potential jurors on this
same trait. Second, as to the prosecution's reason that
four female jurors appeared young or were attending college,
Beauvais argued that three male jurors who were slated to
serve on the jury also appeared young and "college
age." Third, Beauvais stated that the prosecution
"did not inquire as to [L.G.'s] health" and
thus could not rely upon that reason for excusing her.
Finally, Beauvais asserted that the prosecution's
decision to waive its last peremptory challenge showed
purposeful discrimination because exercising that challenge
would have replaced a male juror with a female one. Beauvais
did not comment on the demeanor of any of the jurors or in
any way build a record as to juror demeanor.
The trial court asked if the prosecution wished to respond to
Beauvais's arguments comparing certain male jurors to the
dismissed female jurors. The prosecution noted that each of
its peremptory challenges stemmed from the combination of
several reasons, not just each reason individually:
"When you look at each individual juror and the
collection of reasons that each was stricken[, ] that puts
them in a different situation than any other particular juror
on the panel." The trial court indicated that it would
begin the orientation process for the jury and then take a
recess to consider Beauvais's Batson challenge
before making its step-three ruling. Beauvais did not address
the combination-of-factors argument the prosecution advanced,
nor did she take a final opportunity to make a record about
the excused jurors' demeanor.
After the orientation and a recess, the trial court called
the parties back into the courtroom and, outside the presence
of the jury, issued its Batson ruling.
"Ultimately, " it stated, "if either side were
systematically or intentionally or purposefully attempting to
discriminate against jurors because of race or religion or
gender[, ] that would be unacceptable in this courtroom and I
would take that very seriously." Addressing the
prosecution's peremptory challenges specifically, the
trial court noted that it seemed that all of the potential
jurors could be impartial and that the prosecution's
reasons for exercising its challenges were "not
strong." However, the court emphasized that the factors
for exercising peremptory challenges are "subtle, "
making it difficult to rule on a Batson challenge
and find purposeful discrimination. With these observations
in mind, the trial court overruled Beauvais's
Batson objection, stating that while it had
"concerns given the nature and the outcome and the
circumstances, " Beauvais "h[ad] not established
there was purposeful discrimination."
The jury ultimately found Beauvais guilty of one count of
felony stalking under section 18-3-602(1)(c), C.R.S. (2016),
and not guilty of the other charges. Beauvais appealed,
arguing that the trial court had erred in overruling her
The majority of a division of the court of appeals concluded
that the record was insufficient to facilitate review and
thus remanded the case to the trial court to make additional
findings under step three of Batson. People v.
Beauvais, 2014 COA 143, ¶¶ 3-9, ___ P.3d ___.
Specifically, the majority stated that it could not determine
whether it was clear error for the trial court to rely on the
female potential jurors' age, college attendance, or
apparent sickness because, while these characteristics were
"objectively verifiable and could potentially form the
basis of a legitimate peremptory challenge, " the trial
court had "made no findings regarding the potential
jurors' ages or health, and there is nothing in the
record to show whether the trial court believed that the
prosecutor sought to excuse any of them because they were
college students." Id. at ¶ 19. Therefore,
the court of appeals directed the trial court on remand to
make specific credibility findings about these three
justifications. Id. at ¶ 20.
The majority also concluded that the prosecution's other
gender-neutral reasons were incredible and raised an
inference of purposeful discrimination. Id. at
¶¶ 11-20. In doing so, the majority explained that
under Snyder v. Louisiana, 552 U.S. 472 (2008), it
could not "presume the trial court found [the
prosecution's demeanor-based reasons] to be
credible"-and therefore could not credit them on
appeal-because the trial court had not made express
credibility findings for each of those reasons. Id.
at ¶ 18 (citing Snyder, 552 U.S. at 485).
Additionally, the majority stated that "[s]ome of the
reasons the prosecutor offered for excusing female potential
jurors . . . applied equally to many male potential jurors in
the venire, " which suggested that the prosecutor's
reasons were pretextual. Id. at ¶ 12
(discussing male jurors who had prior experiences with
stalking, who were childless, or who had friends in law
In sum, the majority held that: (1) remand was necessary for
the trial court to explicitly find whether the gender-neutral
reasons of youth, college attendance, and apparent sickness
were credible; (2) it could not infer that the trial court
found the demeanor-based reasons credible given the lack of
specific findings; and (3) the non-demeanor-based reasons
that applied equally to male jurors were incredible and
raised an inference of purposeful discrimination.
The dissent disputed the majority's conclusions regarding
the necessity of remand and the inference of purposeful
discrimination. Id. at ¶ 26 (Bernard, J.,
concurring in part, specially concurring in part, and
dissenting in part). In the dissent's view, the majority
failed to accord the trial court proper deference when the
majority first rejected many of the prosecution's reasons
for excusing the female potential jurors and then concluded
the record was insufficient for lack of express credibility
findings. Id. at ¶¶ 26, 34-35. The dissent
acknowledged that the trial court could have made more
specific findings to explain why it had found the
prosecutor's gender-neutral explanations credible.
Id. at ¶ 40. However, the dissent reasoned that
the trial court's step-three analysis was sufficient
because its "unambiguous finding means only one thing .
. . in the context of this case: The trial court implicitly
chose to believe the prosecutor, which was a choice that was
'peculiarly within [its] province.'"
Id. at ¶¶ 40-44 (alteration in original)
(quoting Hernandez v. New York, 500 U.S. 352, 365
(1991) (plurality opinion)). For the dissent, it was
"obvious that the trial court took this issue seriously,
" id. at ¶ 37, and that the trial court
drew upon its personal observations of the process in making
"the call that it thought was right, " id.
at ¶ 48. The dissent concluded that the majority, and
other appellate courts, "should not second-guess that
call because we have not seen what the trial court saw, or
heard what the trial court heard." Id. at
We granted certiorari and now reverse the court of appeals.
We begin our analysis by outlining Batson's
three-step analysis for determining whether a party's use
of peremptory challenges was motivated by purposeful
discrimination. We then discuss a trial court's role in
ruling on a Batson objection and the deference that
a reviewing court owes to that ruling. Next, we address this
trial court's failure to make express credibility
findings as to the prosecution's non-demeanor-based
reasons, the same failure as to the prosecution's
demeanor-based reasons, and the adequacy of the court of
appeals' comparative juror analysis. Ultimately, we
conclude that the trial court here did not err in overruling
Beauvais's Batson objection and that remand is
Three-Step Batson Framework
The Equal Protection Clause of the Fourteenth Amendment
"forbids striking even a single prospective juror for a
discriminatory purpose." Foster v. Chatman, 136
S.Ct. 1737, 1747 (2016) (quoting Snyder, 552 U.S. at
478). Accordingly, Batson and its progeny forbid
parties in civil and criminal cases from exercising
peremptory challenges to excuse potential jurors on the basis
of race or gender. Batson, 476 U.S. at 89 (race);
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129
In Batson, the U.S. Supreme Court laid out a
three-step analysis for trial courts to use in determining
whether the striking party excused a potential juror on a
discriminatory basis. Foster, 136 S.Ct. at 1747.
First, the objecting party must make a prima facie showing
that the striking party exercised a peremptory challenge on
the basis of race or gender. Id. Second, if the
objecting party makes out a prima facie case, then the
striking party must offer a non-discriminatory reason for
striking each potential juror in question. Id.
Finally, "in light of the parties' submissions, the
trial court must determine whether the [objecting party] has
shown purposeful discrimination" by a preponderance of
the evidence. Id. (quoting Snyder, 552 U.S.
at 476-77); accord Madison v. Comm'r, Ala. Dep't
of Corr., 761 F.3d 1240, 1250 (11th Cir. 2014),
cert. denied sub nom Madison v. Thomas, 135 S.Ct.
1562 (2015) (specifying the preponderance of the evidence
standard) (citing Johnson v. California, 545 U.S.
162, 170 (2005)). The trial court's finding at step three
as to whether the objecting party has shown purposeful
discrimination is a "determination of credibility and
demeanor" that lies "peculiarly within a trial
judge's province." Snyder, 552 U.S. at 477
(quoting Hernandez, 500 U.S. at 365). Only the third
step of the analysis is at issue here.
Standard of Review
"[A] trial court's step-three determination as to
the existence of [purposeful] discrimination is an issue of
fact to which an appellate court should defer . . . ."
People v. Rodriguez, 2015 CO 55, ¶ 13, 351 P.3d
423, 429. We set aside a trial court's factual findings
only when they are so clearly erroneous as to find no support
in the record. Downey v. People, 25 P.3d 1200, 1206
(Colo. 2001). A clear error review of a Batson
ruling must examine all circumstances bearing upon whether
intentional discrimination motivated the challenges.
Foster, 136 S.Ct. at 1748. Given this deferential
standard, reversal is only proper under "exceptional
circumstances." Snyder, 552 U.S. at 477
(quoting Hernandez, 500 U.S. at 366).
Three of Batson
The trial court's task at step three of a Batson
analysis is to determine whether the objecting party proved
that the striking party exercised peremptory challenges with
a discriminatory animus. Rodriguez, ¶ 12, 351
P.3d at 429. One important tool that courts use to make this
determination is an assessment of the striking party's
credibility and the plausibility of its non-discriminatory
explanations. Id. This credibility evaluation is
challenging because the exercise of peremptory challenges is
often a matter of instinct, and even articulating the reason
for a challenge can be difficult. Miller-El v.
Dretke, 545 U.S. 231, 252 (2005); see also JEB, 511 U.S.
at 148 (O'Connor, J, concurring) ("Indeed, often a
reason for [striking a juror] cannot be stated, for a trial
lawyer's judgments about a juror's sympathies are
sometimes based on experienced hunches and educated guesses .
. . ."). Thus, a trial court must consider "all of
the circumstances that bear upon the issue of"
purposeful discrimination. Snyder, 552 U.S. at 478;
accord People v. Cerrone, 854 P.2d 178, 191 (Colo.
1993). These circumstances include, among others, the
striking party's demeanor, the plausibility of the
explanations, and "whether the proffered rationale has
some basis in accepted trial strategy." Miller-El v.
Cockrell, 537 U.S. 322, 339 (2003). Indeed, "the
best evidence [of discriminatory intent] often will be the
demeanor of the attorney who exercises the challenge."
Snyder, 552 U.S. at 477 (alterations in original)
(quoting Hernandez, 500 U.S. at 365).
"Though the trial court must evaluate all relevant
facts, 'the ultimate burden of persuasion regarding
[discriminatory] motivation rests with, and never shifts
from, the [objecting party].'" People v.
Wilson, 2015 CO 54M, ¶ 14, 351 P.3d 1126, 1132
(quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)
(per curiam)). Hence, 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 ("[I]mplausible or fantastic
justifications may (and probably will) be found to be
pretexts for purposeful discrimination.").
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); accord Wilson,
¶¶ 13-14, 351 P.3d at 1131-32. The trial court is
in the best position to evaluate the striking party's
demeanor and the credibility of its justifications because
the "trial judge is the judicial officer who watches and
listens as voir dire unfolds, and who can discern the
presence or absence of discriminatory intent."
Wilson, ¶ 23, 351 P.3d at 1134 (quoting
Valdez, 966 P.2d at 599 (Kourlis, J., dissenting));
accord Rodriguez, ¶ 18, 351 P.3d at 430-31. The
trial judge is also in the best position to evaluate a
potential juror's demeanor-and that of the striking
party-when parties predicate peremptory strikes on the
potential juror's demeanor. See Snyder, 552 U.S.
at 479. It is for these reasons that appellate courts afford
trial courts great deference and will only reverse under
"exceptional circumstances." Id. at 477
(quoting Hernandez, 500 U.S. at 366).
Analysis and Application
The People contend that the court of appeals erred in three
ways: (1) by remanding for specific credibility findings on
some of the prosecution's non-demeanor-based reasons for
its peremptory challenges, (2) by refusing to credit the
prosecution's demeanor-based reasons because the trial
court did not expressly find them credible, and (3) by
conducting a flawed comparative juror analysis. We address
each of these contentions in turn.
Express Credibility Findings on Non-Demeanor-Based
The People assert that the court of appeals erred when it
remanded the case and ordered the trial court to make express
credibility findings as to the prosecution's claim that
it excused several female potential jurors in part because
they were young, childless, in college, or apparently sick.
The People assert that express credibility findings as to
each of the striking party's non-demeanor reasons are not
necessary to satisfy step three of Batson. Rather,
according to the People, a trial court's ultimate
decision to overrule a Batson objection can, under
certain circumstances, be taken as an implicit crediting of
the prosecution's reasons and thus survive clear error
review. We agree.
In framing this issue, we emphasize that the purpose of the
Batson analysis is to determine whether the party
making the Batson objection has proven by a
preponderance of the evidence that the striking party excused
jurors with discriminatory intent. Assessing the striking
party's credibility is an important component of that
determination, but it is not the ultimate inquiry. Rather,
the trial court's obligation at step three is to