State v. Valdez

1 In Batson v. Kentucky, the United States Supreme Court
held that a prosecutor’s use of racially motivated peremptory
challenges violates the Equal Protection Clause of the Fourteenth
Amendment. 476 U.S. 79, 89 (1986). The Supreme Court has since
extended the reasoning of Batson to the use of peremptory
(continued...)
2006 UT 39
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20040633
Plaintiff and Petitioner,
v.
F I L E D
Anthony James Valdez,
Defendant and Respondent. July 21, 2006
---
Third District, Salt Lake
The Honorable Judith S. Atherton
No. 02190756
Attorneys: Mark L. Shurtleff, Att’y Gen., Christine Soltis,
Asst. Att’y Gen., Byron F. Burmester, Salt Lake City,
for petitioner
John D. O’Connell, Jr., Lori Seppi, Salt Lake City,
for respondent
---
On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
¶1 In this opinion, we clarify an important procedural
rule that has apparently caused some confusion in Utah’s lower
courts. The issues in this case arise from the State’s use of
its peremptory challenges to exclude female potential jurors from
the jury at the trial of Anthony James Valdez. Valdez objected,
arguing that the State’s use of its peremptory challenges was
unconstitutional under Batson v. Kentucky, 476 U.S. 79 (1986).1

1 (...continued)
challenges to exclude jurors solely on the basis of gender. See
J.E.B. v. Alabama, 511 U.S. 127, 146 (1994) (“[T]he Equal
Protection Clause prohibits discrimination in jury selection on
the basis of gender . . . .”). Thus, Valdez’s challenge to the
State’s allegedly improper use of its peremptory challenges
technically falls under J.E.B. However, in light of the Supreme
Court’s increasing jurisprudence in this area, an objection to an
opponent’s use of peremptory challenges brought under the Equal
Protection Clause is now generally referred to as a “Batson
challenge.” See, e.g., State v. Parrish, 2005 MT 112, ¶ 13, 327
Mont. 88, ¶ 13, 111 P.3d 671, ¶ 13 (referring to a defendant’s
objection to the prosecutor’s use of peremptory challenges to
exclude men from the jury as a “Batson challenge”). Therefore,
we refer to Valdez’s challenge as a Batson challenge.
2 We granted certiorari in this case on two issues:
(1) whether a Batson challenge may be deemed timely if the jury
has been sworn and the remainder of the venire excused; and
(2) whether the court of appeals applied the correct criteria for
a Batson analysis and the correct standard of review on appeal.
Because our holding on the first issue is dispositive, we do not
reach the second.
No. 20040633 2
However, Valdez did not raise his Batson challenge until after
the trial jury had been empaneled and sworn in and the remainder
of the venire dismissed. We accepted certiorari to consider
whether Valdez’s Batson challenge was timely under these
circumstances.2
¶2 We hold that a Batson challenge is only timely if
raised both before the jury is sworn and before the remainder of
the venire is excused. Under firmly established Utah law, a
Batson challenge is only timely if it is raised before the jury
is sworn. We take the opportunity provided by this case to
clarify that a Batson objection must also be raised before the
venire is dismissed. Accordingly, we reverse the court of
appeals and remand for further proceedings consistent with this
opinion.
BACKGROUND
¶3 Valdez was prosecuted in district court on five
charges: aggravated burglary, aggravated assault, child abuse,
possession of a dangerous weapon by a restricted person, and
criminal mischief. On October 29, 2002, jury selection for
Valdez’s trial began. The initial jury venire summoned to the
district court consisted of eleven men and fourteen women. The

3 The district court’s ruling corresponds to the
requirements set forth in Batson, 476 U.S. at 97-99, and
recognized by this court in State v. Cantu, 778 P.2d 517, 518
(Utah 1989).
3 No. 20040633
district court removed three men and two women for cause on its
own motion and without objection from Valdez or the State. A
third woman was excused for cause by Valdez over the State’s
objection. The State then used all four of its peremptory
challenges to remove women from the jury panel; Valdez used all
four of his peremptory challenges against men. The jury selected
to try the case consisted of four men and four women. Valdez did
not object to the State’s use of its peremptory strikes at any
point during the jury selection process.
¶4 After the trial jury had been empaneled, the remainder
of the venire was excused from service. The district court judge
then swore the jury in, read the information to them, and gave
them preliminary instructions. The court then dismissed the jury
for lunch, and counsel remained in the courtroom to converse with
the judge. After discussing potential jury instructions with
counsel, the judge asked whether counsel wanted to address
anything else before the court recessed. At that point, Valdez’s
counsel raised a Batson challenge, arguing that the State’s use
of its peremptory challenges discriminated on the basis of
gender.
¶5 In support of his Batson challenge, Valdez argued that
a prima facie pattern of discrimination could be found in the
State’s use of its peremptory challenges to exclude only female
jurors from the trial jury. In response, the State argued that
Valdez’s Batson challenge was untimely because the jury had
already been seated and sworn. The district court did not
explicitly rule on the timeliness of Valdez’s Batson challenge,
but stated “notwithstanding that, can you give me a basis to
rebut [a] Batson type challenge?” The State then provided
gender-neutral explanations for each of its four peremptory
challenges. Valdez offered no further argument. The district
court ruled that the State’s peremptory challenges were gender
neutral, related to the case, specific, and legitimate.3
Accordingly, the district court rejected Valdez’s Batson
challenge.
¶6 Valdez’s trial proceeded, and he was convicted of
aggravated burglary, possession of a dangerous weapon by a
restricted person, and criminal mischief. Valdez subsequently
appealed the district court’s denial of his Batson challenge to
the Utah Court of Appeals. On appeal, Valdez also challenged the

4 The court of appeals mistakenly cited State v. Harrison,
805 P.2d 769 (Utah Ct. App. 1991), as an opinion of the Utah
Supreme Court. See State v. Valdez, 2004 UT 214, ¶ 9, 95 P.3d
291 (“In State v. Harrison, the Utah Supreme Court applied rule
18’s good cause provision to review an untimely Batson
challenge.”). We clarify that Harrison was an opinion of the
Utah Court of Appeals, not of this court.
No. 20040633 4
State’s use of evidence regarding Battered Woman Syndrome in his
trial on the ground that it was prejudicial.
¶7 A panel of the Utah Court of Appeals reversed the
district court. The court of appeals noted that a Batson
challenge must be timely raised and that standards for timeliness
are established by local procedures. State v. Valdez, 2004 UT
App 214, ¶ 7, 95 P.3d 291. In determining whether Valdez’s
Batson challenge was timely under Utah law, the court relied
primarily on two of its prior opinions: Salt Lake County v.
Carlston, 776 P.2d 653, 655 (Utah Ct. App. 1989), and State v.
Harrison, 805 P.2d 769, 775-76 (Utah Ct. App. 1991).4 Valdez,
2004 UT App 214, ¶¶ 7-10. While the court of appeals recognized
that Carlston had favorably cited other jurisdictions’ timeliness
rules that bar Batson challenges after the jury has been sworn
and the venire dismissed, Valdez, 2004 UT App 214, ¶ 8 (citing
Carlston, 776 P.2d at 655-56), it chose to decide the present
case under Harrison, id., ¶¶ 9-10. The court cited Harrison for
the proposition that the timeliness of a Batson challenge is
governed by rule 18(c)(2) of the Utah Rules of Criminal
Procedure. Id. ¶ 9 (citing Harrison, 805 P.2d at 776). The
court of appeals stated that a district court may consider a
Batson challenge that is not raised until after the jury is sworn
and the venire dismissed if it finds “good cause” under Rule
18(c)(2). Id. ¶¶ 10-11 (citing Harrison, 805 P.2d at 776). The
court also stated that if a district court allows counsel to
proceed with a Batson argument following a timeliness objection,
it “impliedly finds good cause under rule 18.” Id. (citing
Harrison, 805 P.2d at 776).
¶8 Based on this legal framework, the court of appeals
held that the district court had impliedly found good cause to
allow Valdez’s Batson challenge to proceed because it had not
explicitly ruled on the State’s timeliness objection and had
asked the State to rebut Valdez’s argument. Id. The court also
stated that it could not adopt the rule proposed by the
State–that a Batson challenge must be brought before the jury has
been sworn and the remainder of the venire dismissed–because the
rule was not “‘firmly established and regularly followed.’” Id.
¶¶ 8, 11 (quoting Ford v. Georgia, 498 U.S. 411, 423 (1991)).

5 The court of appeals noted that “[t]his issue would best
be addressed by an amendment to the Utah Rules of Criminal
Procedure.” Valdez, 2004 UT App 214, ¶ 11 n.1.
5 No. 20040633
According to the court of appeals, “in the absence of any firmer
and more established authority on the subject, we could not
prevent appellate review of Valdez’s constitutional claim due to
lack of timeliness.”5 Id. ¶ 11.
¶9 After ruling on the timeliness issue, the court of
appeals proceeded to address the merits of Valdez’s Batson
challenge. Id. ¶¶ 12-30. Applying an abuse of discretion
standard of review, id. ¶ 17, the court held that most of the
proffered justifications for the State’s strikes were not clear
and specific and lacked a relationship to the case being tried,
id. ¶¶ 26-28. The court of appeals therefore ruled that the
district court had abused its discretion by rejecting Valdez’s
Batson challenge and reversed and remanded for a new trial. Id.
¶¶ 30-31. Because the court found the denial of Valdez’s Batson
challenge dispositive, it did not reach Valdez’s arguments
regarding the admissibility of the Battered Woman Syndrome
evidence introduced by the State at trial. Id. ¶ 17 n.2.
¶10 The State petitioned this court for certiorari to
review the decision of the court of appeals. We granted
certiorari and have jurisdiction pursuant to Utah Code section
78-2-2(3)(a) (2002).
STANDARD OF REVIEW
¶11 On certiorari, “we review the decision of the court of
appeals, and not that of the district court.” State v. Hansen,
2002 UT 125, ¶ 25, 63 P.3d 650 (citation omitted). Whether
Valdez’s Batson challenge was timely raised is a question of law.
We review questions of law for correctness, granting no deference
to the legal conclusions of the court of appeals. Thomas v.
Color Country Mgmt., 2004 UT 12, ¶ 9, 84 P.3d 1201.
ANALYSIS
¶12 We granted certiorari on two issues: (1) whether a
Batson challenge may be deemed timely if the jury has been sworn
and the remainder of the venire excused; and (2) whether the
court of appeals applied the correct criteria for a Batson
analysis and the correct standard of review on appeal. Because
we hold that Valdez’s Batson challenge was not timely, we do not
reach the second issue, and therefore express no views on the

6 Our decision should not be read either as an endorsement
or as a rejection of the court of appeals’ approach regarding the
second issue. We suggest that parties raising Batson challenges
continue to follow the framework established by the United States
Supreme Court and our prior Batson jurisprudence. See, e.g.,
Johnson v. California, 125 S. Ct. 2410, 2416-19 (2005)
(addressing the criteria for a Batson analysis); State v.
Colwell, 2004 UT 8, ¶¶ 14-23, 994 P.2d 177 (same); State v.
Higginbotham, 917 P.2d 545, 546-49 (Utah 1996) (same).
7 It should be noted that the evidence offered by the
defendant in Swain-that the prosecutors in his case had used
their peremptory challenges to exclude African Americans from the
petit jury–was deemed insufficient to establish a prima facie
case of systematic purposeful discrimination. Swain v. Alabama,
380 U.S. 202, 224-28 (1965).
No. 20040633 6
criteria and standard of review applied by the court of appeals
for Batson challenges.6 Accordingly, our analysis is confined to
a discussion of when a Batson challenge must be raised in order
to be considered timely under Utah law.
A BATSON CHALLENGE MUST BE RAISED BEFORE THE JURY IS SWORN
AND BEFORE THE REMAINDER OF THE VENIRE IS DISMISSED
IN ORDER TO BE TIMELY UNDER UTAH LAW
¶13 Before addressing Utah law regarding the timeliness of
Batson challenges, we discuss the history of Batson challenges in
order to provide context for our holding. The United States
Supreme Court has long held that the Equal Protection Clause of
the Fourteenth Amendment prohibits purposeful racial
discrimination in the selection of jurors. See Strauder v. West
Virginia, 100 U.S. 303, 309 (1880); Martin v. Texas, 200 U.S.
316, 319 (1906). The Court first applied this principle in the
context of peremptory challenges in Swain v. Alabama, 380 U.S.
202 (1965). In Swain, the Court held that it was a violation of
the Equal Protection Clause for a prosecutor to purposefully use
peremptory challenges to exclude African American jurors from the
petit jury when the defendant is also African American. Id. at
222-24. However, the case set an exceedingly high evidentiary
burden for defendants. The Swain Court noted that a black
defendant could only establish a prima facie case of purposeful
discrimination by demonstrating that the prosecutor had
continuously and systematically used peremptory challenges to
strike African Americans from the jury venire “in case after
case, whatever the circumstances.”7 Id. at 223. Following
Swain, most lower courts applying its reasoning required African
American defendants who challenged a prosecutor’s use of

8 The Batson Court discussed this three-part test in the
context of an African American defendant objecting to a
prosecutor’s use of peremptory challenges to exclude African
American jurors from the petit jury. Batson, 476 U.S. at 97-98.
However, the Court’s subsequent cases have expanded the
applicability of the Batson test to the point that it now
generally applies to all objections to an opponent’s use of
peremptory challenges that are based on the Equal Protection
Clause. See, e.g., Johnson, 125 S. Ct. at 2416 (noting that the
Batson steps “together guide trial courts’ constitutional review
of peremptory strikes”). Accordingly, the Batson test will be
set forth here in general terms, based on its present
applicability.
7 No. 20040633
peremptory strikes on equal protection grounds to demonstrate
that the prosecutor had exercised peremptory strikes in a
discriminatory fashion over a number of cases. See Batson v.
Kentucky, 476 U.S. 79, 92-93 & n.16 (1986).
¶14 In Batson, the Court rejected Swain’s “crippling burden
of proof,” noting that under Swain “prosecutors’ peremptory
challenges [had become] largely immune from constitutional
scrutiny.” Id. at 92-93; see also Christopher J. Petrini, Batson
v. Kentucky: A Promise Unfulfilled, 58 UMKC L. Rev. 361, 365
(1990) (noting that in the twenty-one years between Swain and
Batson, only two defendants were able to establish a case of
purposeful discrimination under Swain). The Batson Court thus
replaced the Swain test with an evidentiary framework similar to
that of Title VII of the 1964 Civil Rights Act, which allows the
opponent of a peremptory challenge to establish a violation of
the Equal Protection Clause based “solely on evidence concerning
the prosecutor’s exercise of peremptory challenges at the
defendant’s trial.” Batson, 476 U.S. at 96; see also Johnson v.
California, 125 S. Ct. 2410, 2418 n.7 (2005) (discussing
similarity of Batson framework to “the burden-shifting framework
in cases arising under Title VII of the Civil Rights Act of
1964”).
¶15 The Batson Court established a three-step analytical
framework to be applied by a court considering whether a
litigant’s use of peremptory challenges violates the Equal
Protection Clause.8 Batson, 476 U.S. at 93-97. First, the
opponent of the peremptory challenges must establish a prima
facie case of purposeful discrimination in the selection of the
petit jury. Id.; see also Purkett v. Elem, 514 U.S. 765, 767
(1995) (discussing the three-part Batson test); State v. Colwell,
2000 UT 8, ¶¶ 17-18, 994 P.2d 177 (same). In other words, the
challenging party must “produc[e] evidence sufficient to permit

9 The Supreme Court has consistently declined to specify
what type of evidence the challenging party must offer to
establish a prima facie case, and instead has relied on trial
judges to determine whether “all relevant circumstances. . . .
give rise to an inference of discrimination.” Batson, 476 U.S.
at 96-97; see also Johnson, 125 S. Ct. at 2416 (“[A] prima facie
case of discrimination can be made out by offering a wide variety
of evidence, so long as the sum of the proffered facts gives
‘rise to an inference of discriminatory purpose.’” (quoting
Batson, 476 U.S. at 94)).
10 This is because the ultimate burden of persuasion in a
Batson challenge rests with the opponent of the peremptory
challenges. Johnson, 125 S. Ct. at 2417-18. “The first two
Batson steps govern the production of evidence that allows the
trial court to determine the persuasiveness of the defendant’s
constitutional claim.” Id. at 2418. In the third step, the
court weighs the evidence obtained in the first two steps and
determines whether the opponent of the peremptory challenges has
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No. 20040633 8
the trial judge to draw an inference that discrimination has
occurred.”9 Johnson, 125 S. Ct. at 2417; see also Batson, 476
U.S. at 96 (noting that the challenging party must demonstrate
that the facts and circumstances raise an inference that a juror
was excluded from the petit jury on account of race); Colwell,
2000 UT 8, ¶ 18 (“The challenging party must first make out the
prima facie case by presenting facts adequate to raise an
inference of improper discrimination.”). Second, once the
opponent has established a prima facie case, the burden shifts to
the proponent of the peremptory challenges to rebut the prima
facie case by offering neutral, nondiscriminatory justifications
for the peremptory challenges. See Batson, 476 U.S. at 97;
Johnson, 125 S. Ct. at 2416; Colwell, 2000 UT 8, ¶ 19. A
proponent cannot meet this burden by simply denying a
discriminatory motive or professing good faith. Batson, 476 U.S.
at 98. Rather, a proponent must proffer justifications that are:
(1) neutral; (2) related to the particular case to be tried;
(3) reasonably specific and clear; and (4) legitimate. See id.
at 98 n.20 (“[T]he prosecutor must give a ‘clear and reasonably
specific’ explanation of his ‘legitimate reasons’ for exercising
the challenges.” (quoting Texas Dep’t Of Cmty. Affairs v.
Burdine, 450 U.S. 248, 258 (1981)); State v. Higginbotham, 917
P.2d 545, 548 (Utah 1996) (listing the four factors discussed
above) (citations omitted). Finally, if the proponent provides a
sufficient explanation for the peremptory challenges, the trial
court must determine whether the opponent of the peremptory
challenges has proven purposeful discrimination.10 Purkett, 514

10 (...continued)
carried his burden to prove purposeful discrimination. Id.
11 Unconstitutional discrimination in jury selection denies
the litigant “the protection that a trial by jury is intended to
secure[:]” trial by a jury of peers. Batson, 476 U.S. at 86; see
also J.E.B., 511 U.S. at 140 (“The litigants are harmed by the
risk that the prejudice that motivated the discriminatory
selection of the jury will infect the entire proceedings.”).
12 Because of the importance of this right and the
difficulties that wrongfully excluded jurors face in remedying a
(continued...)
9 No. 20040633
U.S. at 767; Johnson, 125 S. Ct. at 2416; Higginbotham, 917 P.2d
at 548.
¶16 Since deciding Batson, the Supreme Court has
continually increased the scope of the Batson test. See Powers
v. Ohio, 499 U.S. 400, 409-10 (1991) (holding that Batson applies
to a prosecutor’s use of peremptory challenges regardless of
whether the stricken juror is of the same race as the defendant);
Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630 (1991)
(extending the Batson rule to the use of peremptory challenges by
private litigants in civil cases); Georgia v. McCollum, 505 U.S.
42, 59 (1992) (applying Batson to criminal defendants’ use of
peremptory challenges); J.E.B. v. Alabama, 511 U.S. 127, 146
(1994) (holding that the Equal Protection Clause also prohibits
discrimination in jury selection on the basis of gender).
¶17 Throughout its Batson jurisprudence, the Court has
stated that the equal protection right the Batson test is
designed to protect is premised on on several important
constitutional interests. First, the litigants are
constitutionally entitled to have their case tried by a jury that
is selected by fair and nondiscriminatory methods.11 See
Strauder, 100 U.S. at 307-08; Batson, 476 U.S. at 85-86; see also
J.E.B., 511 U.S. at 128 (stating that litigants in criminal and
civil trials “have an equal protection right to jury selection
procedures that are free from state-sponsored group stereotypes
rooted in, and reflective of, historical prejudice”). Second,
the “individual jurors themselves have a right to
nondiscriminatory jury selection procedures.” J.E.B., 511 U.S.
at 140-41; see also McCollum, 505 U.S. at 48 (“[D]enying a person
participation in jury service on account of his race
unconstitutionally discriminates against the excluded juror.”).
This right is premised on the importance of the jury system in
American democracy.12 See, e.g., Powers, 499 U.S. at 407 (“[F]or

12 (...continued)
violation of this right themselves, the Supreme Court has granted
litigants third-party standing to assert the rights of wrongfully
struck jurors on their behalf. See Powers v. Ohio, 499 U.S. 400,
413-15 (1991); Edmonson v. Leesville Concrete Co., 500 U.S. 614,
629 (1991); Georgia v. McCollum, 505 U.S. 42, 55-56 (1992).
No. 20040633 10
most citizens the honor and privilege of jury duty is their most
significant opportunity to participate in the democratic
process.”); J.E.B., 511 U.S. at 141-42 (“All persons, when
granted the opportunity to serve on a jury, have the right not to
be excluded summarily because of discriminatory and stereotypical
presumptions . . . .”). Finally, the entire community has an
interest in fair jury selection procedures. See Batson, 476 U.S.
at 87. When jurors are excluded pursuant to discriminatory
selection criteria, “public confidence in the fairness of our
system of justice” is undermined. Id. Accordingly, courts must
ensure that jury selection procedures are fair and
nondiscriminatory, for if a court allows a juror to be wrongfully
excluded it becomes a “willing participant in a scheme that could
only undermine the very foundation of our system of justice.”
McCollum, 505 U.S. at 49 (citations and internal quotation marks
omitted).
¶18 While the Supreme Court has been very explicit
regarding the applicability of and basis for the Batson test, it
has consistently declined to formulate procedural rules–such as
timeliness standards–governing Batson challenges. In Batson, the
defendant had challenged the prosecutor’s use of peremptory
strikes by moving to discharge the jury before it was sworn. 476
U.S. at 83. Though the Court noted that this was “a timely
objection,” id. at 100, it specifically declined to establish
“particular procedures” to be followed by courts applying Batson,
id. at 99. Instead, the Court stated that it was up to state
courts, with their “variety of jury selection practices,” to
establish procedural guidelines. Id. at 99 & n.24.
¶19 The Court expanded on this reasoning in Ford v.
Georgia, 498 U.S. 411 (1991). Under Ford, “local rules [provide]
the law governing the timeliness of a [Batson] claim.” Id. at
423. Thus, the Court stated that “a state court may adopt a
general rule that a Batson claim is untimely if it is raised for
the first time on appeal, or after the jury is sworn, or before
its members are selected.” Id. While the Court did not set
forth any specific guidelines regarding timeliness, it noted that
“[t]he requirement that any Batson claim be raised not only
before trial, but in the period between the selection of jurors
and the administration of their oaths, is a sensible rule.” Id.

11 No. 20040633
at 422-23. However, the Court also held that “only a firmly
established and regularly followed state practice may be
interposed by a State to prevent subsequent review . . . of a
federal constitutional claim.” Id. at 423-24 (internal quotation
marks and citations omitted). Accordingly, under Batson and
Ford, state procedural rules govern the timeliness of a Batson
objection, but those rules must be firmly established and
regularly followed in order to bar appellate consideration of the
merits of a Batson challenge on timeliness grounds. While the
Court has not expanded on its reasoning from Ford, it recently
noted that the Batson test is meant to “encourage[] prompt
rulings on objections to peremptory challenges without
substantial disruption of the jury selection process.” Johnson,
125 S. Ct. at 2418 (internal quotation marks and citation
omitted).
¶20 As the resolution of the case before us turns on
whether Valdez’s Batson challenge-raised after the jury had been
sworn and the remainder of the venire dismissed–was timely, we
must determine what the established procedures are under Utah law
regarding the timeliness of Batson challenges. We begin our
discussion with a review of the decision of the court of appeals.
¶21 In State v. Valdez, 2004 UT App 214, 95 P.3d 291, the
Utah Court of Appeals held that Valdez’s Batson challenge was
timely on two separate grounds. First, the court of appeals
held, based on its prior decision in State v. Harrison, 805 P.2d
769, 776 (Utah Ct. App. 1991), that Valdez’s Batson challenge was
timely under rule 18(c)(2) of the Utah Rules of Criminal
Procedure. Valdez, 2004 UT App 214, ¶¶ 9-10. Second, the court
of appeals held that it could not deem Valdez’s Batson challenge
untimely because the rule proposed by the State–that a Batson
challenge must be raised before the jury is sworn and the venire
dismissed–“has not heretofore been a firmly established and
regularly followed state [procedure].” Id., 2004 UT 214, ¶ 11
(citing Ford, 498 U.S. at 424) (alteration in original) (internal
quotation marks omitted). For the reasons discussed below, the
court of appeals was incorrect as a matter of law with regard to
both of its determinations.
A. A Batson Challenge Must be Raised Before the Jury
is Sworn to be Timely Under Utah Law
¶22 In ruling that Valdez’s Batson challenge was timely
under rule 18(c)(2), the court of appeals relied heavily on its
decision in Harrison. See State v. Valdez, 2004 UT App 214,
¶¶ 9-10, 95 P.3d 291 (citing State v. Harrison, 805 P.2d 769,
775-76 (Utah Ct. App. 1991)). In Harrison, the Utah Court of

13 This determination runs counter to the court of appeals’
decision three years earlier in Salt Lake County v. Carlston, 776
P.2d 653 (Utah Ct. App. 1989). In Carlston, the defendant had
waited to raise her Batson challenge until after the trial had
concluded. Id. at 654. The court of appeals held that a Batson
challenge must be timely raised or it is waived. Id. at 655-56.
It then proceeded to discuss timeliness standards for Batson
challenges at length. Id. In its discussion, the court of
appeals cited our pre-Batson decision in State v. Bankhead, 727
P.2d 216 (Utah 1986), for the proposition that a challenge to the
jury panel must be raised before the jury is sworn in. Carlston,
776 P.2d at 655-56 n.5 (citing Bankhead, 727 P.2d at 217).
14 In doing so, the court of appeals in Valdez implicitly
overruled the standards for timely Batson challenges it had
adopted in Carlston. While the court of appeals in Carlston
noted that a Batson challenge must be raised before the jury is
(continued...)
No. 20040633 12
Appeals considered the timeliness of a Batson challenge raised
immediately after the jury was sworn but before the venire was
dismissed. 805 P.2d at 776. Although the parties did not brief
or argue the applicability of rule 18, the court determined sua
sponte that rule 18(c)(2) governs the timeliness of a Batson
objection in Utah.13 Id. The relevant language of that rule,
which has not changed since Harrison was decided, provides as
follows:
A challenge to an individual juror may be
either peremptory or for cause. A challenge
to an individual juror may be made only
before the jury is sworn to try the action,
except the court may, for good cause, permit
it to be made after the juror is sworn but
before any of the evidence is presented.
Utah R. Crim. P. 18(c)(2). Thus, in Harrison, the court of
appeals held that a Batson challenge is timely under rule
18(c)(2) even when it is raised after the jury is sworn if the
trial court finds good cause to permit it. 805 P.2d at 776. The
court of appeals also held that a trial court implicitly finds
good cause under rule 18(c)(2) “by allowing counsel to proceed
with their [Batson] arguments.” Id.
¶23 In Valdez, the Utah Court of Appeals dramatically
expanded the scope of Harrison by ruling that “a district court
may consider a defendant’s Batson challenge beyond the dismissal
of the venire.”14 Valdez, 2004 UT App 214, ¶ 10 (emphasis

14 (...continued)
sworn, see Carlston, 776 P.2d at 655-56 n.5 (citing Bankhead, 727
P.2d at 217), it went on to consider other timeliness concerns.
The court stated that “the Batson court envisioned a prompt
motion to strike the jury panel, ‘probably before the venire was
dismissed.’” Id. at 656 (quoting United States v. Erwin, 793
F.2d 656, 667 (5th Cir. 1986)). In support of this rule, the
court of appeals favorably cited opinions from several other
jurisdictions and then stated that the rule was based on “two
justifications:” (1) “prevent[ing] defendants from ‘sandbagging’
the prosecution by waiting until trial has concluded
unsatisfactorily before insisting on an explanation for jury
strikes[;]” and (2) remedying “prosecutorial misconduct . . .
prior to commencement of trial simply by seating the wrongfully
struck venireperson.” Id. (quoting United States v. Forbes, 816
F.2d 1006, 1011 (5th Cir. 1987)). While the Valdez Court
characterized the rules laid out in Carlston as dicta, 2004 UT
App 214, ¶ 8 a close reading of Carlston demonstrates that the
court of appeals meant to adopt these rules. See Carlston, 776
P.2d at 656 (“We believe they apply with equal force in the civil
litigation context.” (emphasis added)).
13 No. 20040633
added). Relying on Harrison, the court of appeals stated, “So
long as it ‘allows counsel to proceed with their [Batson]
arguments,’ the district court impliedly finds good cause under
rule 18 to consider the constitutional claim.” Id. ¶ 10 (quoting
Harrison, 805 P.2d at 776) (alterations in original). Because
the district court requested that the State respond to Valdez’s
Batson challenge despite the State’s timeliness objection, the
court of appeals held that the district court had impliedly found
good cause to allow the Batson challenge under rule 18(c)(2).
Id.
¶24 The court of appeals erred as a matter of law in
holding that Valdez’s Batson challenge was timely under rule
18(c)(2) because rule 18(c)(2) is inapplicable on its face to
Batson challenges. By its terms, rule 18(c)(2) provides
procedural guidelines for a litigant’s peremptory or for cause
“challenge to an individual juror.” Utah R. Crim. P. 18(c)(2)
(emphasis added). In other words, rule 18(c)(2) provides a time-
frame in which a litigant may choose to exercise a peremptory or
for cause challenge to remove an individual juror from the
venire. Id. Under rule 18(c)(2), a litigant who wishes to
remove a juror with either a peremptory or for cause challenge
may only do so before the jury is sworn unless the trial court
finds good cause to allow a challenge afterward. Id. In any
event, a litigant may not remove a juror with a peremptory or for
cause challenge once evidence has been presented. Id.

15 Thus, a trial court cannot impliedly find good faith to
allow a Batson challenge after the jury has been sworn under rule
18(c)(2) because rule 18(c)(2) does not apply to Batson
challenges. We note that an equally plausible explanation for
the trial court’s request that the State explain its use of
peremptory challenges notwithstanding the timeliness of Valdez’s
Batson challenge is that the trial court simply wanted to ensure
that an adequate contemporaneous record was made.
No. 20040633 14
¶25 The procedural framework contained in rule 18(c)(2)
does not govern Batson challenges. A peremptory challenge is a
common law procedural device designed to assist litigants in
selecting an impartial jury. See Edmonson v. Leesville Concrete
Co., 500 U.S. 614, 620 (1991). In contrast, a Batson challenge
is not itself a peremptory challenge, but rather an objection to
an opposing litigant’s improper use of peremptory challenges.
See Batson v. Kentucky, 476 U.S. 79, 96 (1986) (noting that the
Batson test is designed to prevent the use of peremptory
challenges to purposefully discriminate “in the empaneling of the
petit jury”). A litigant who raises a Batson challenge is
objecting that the “jury was improperly constituted due to an
equal protection violation.” Powers v. Ohio, 499 U.S. 400, 414
(1991); see also Batson, 476 U.S. at 85-86 (“[T]he defendant
[has] the right to be tried by a jury whose members are selected
pursuant to non-discriminatory criteria.”). In other words, a
Batson challenge amounts to a statement that the opposing
litigant’s use of peremptory challenges violates the Fourteenth
Amendment, and as a result the empaneled jury is improperly
composed. See, e.g., Powers, 499 U.S. at 412-13 (noting that a
Batson challenge is a challenge to the “composition of the trier
of fact”); Ford v. Georgia, 498 U.S. 411, 420 n.5 (1991) (noting
that a Batson challenge is an objection to “the selection of an
objecting defendant’s own jury”). Rule 18(c)(2) has no
applicability to an objection made to the composition of the
empaneled jury, and thus does not govern Batson challenges.
Therefore, the Utah Court of Appeals erred in relying on it as
the standard for determining whether a Batson objection is timely
under Utah law.15
¶26 The court of appeals also erred as a matter of law in
its determination that a rule that “would prohibit Batson
challenges after the venire has been dismissed and the jury has
been sworn, [is] not . . . a ‘firmly established and regularly
followed state [procedure].’” Valdez, 2004 UT 214, ¶ 11 (quoting
Ford, 498 U.S. at 423) (alteration in original). According to
the court of appeals, “At best, this rule could be gleaned by
analogy and implication from Harrison and rule 18[(c)(2)].” Id.

15 No. 20040633
As discussed above, rule 18(c)(2) is inapplicable in any event.
Furthermore, a survey of Utah law indicates that it is a well
established principle that Batson challenges must be raised both
before the jury is sworn and before the remainder of the venire
is dismissed in order to be deemed timely.
¶27 In State v. Bankhead, 727 P.2d 216 (Utah 1986), a case
decided by this court prior to Batson, we considered the
timeliness of a challenge to the composition of the jury. The
defendant, who was African American, argued that her
constitutional rights had been violated because the jury selected
to try her case did not include any members of her race. Id. at
217. She moved to quash the jury panel, but not until all of the
evidence had already been admitted. Id. Citing section 78-46-
16(1) of the Utah Code, we held that the defendant’s objection
was waived because “any challenge to the jury must be lodged
before the jury is sworn.” Bankhead, 727 P.2d at 217 (emphasis
added). We also cited the United States Supreme Court’s decision
in Taylor v. Louisiana, 419 U.S. 522 (1975), noting that under
Taylor a litigant does not have a Sixth Amendment right to a jury
that is a perfect cross section of the community but is entitled
to a jury selected from a venire that represents a cross section
of the community. Bankhead, 727 P.2d at 217 (citing Taylor, 419
U.S. at 538).
¶28 Taylor is generally representative of the Supreme
Court’s pre-Batson jurisprudence regarding the composition of
juries, which was “concerned largely with discrimination during
selection of the venire.” Batson, 476 U.S. at 88. This trend
began with Strauder v. West Virginia, 100 U.S. 303 (1880) where
the Court held that it is a violation of the Equal Protection
Clause to exclude members of the defendant’s race from the jury
venire solely on account of race. Id. at 307-09. Over time,
Strauder came to stand for the principle that under the Equal
Protection Clause the jury venire must be selected pursuant to
nondiscriminatory criteria, see Martin v. Texas, 200 U.S. 316,
319-21 (1906), and must be representatively drawn from the
community, Duncan v. Louisiana, 391 U.S. 145, 156 (1968).
However, the Court consistently held that the Equal Protection
Clause does not guarantee a litigant a jury of a certain
composition. See Akins v. Texas, 325 U.S. 398, 403 (1945). In
Taylor, the Court applied these same rules under the Sixth
Amendment, holding that although the Sixth Amendment does not
guarantee that a petit jury will “mirror the community,” it does
guarantee that the petit jury will be selected from a venire that
is representative of the community. 419 U.S. at 538.

16 In fact, the Court relied on its cases dealing with the
composition of the jury venire to overrule Swain, noting that
“since the decision in Swain, this Court has recognized that a
defendant may make a prima facie showing of purposeful racial
discrimination in selection of the venire by relying solely on
the facts concerning its selection in his case.” Batson, 476
U.S. at 95. Moreover, the three-step burden-shifting evidentiary
framework established in Batson is the exact same evidentiary
inquiry the Court had devised in its pre-Batson cases dealing
with the composition of the venire. Id. at 93-96.
No. 20040633 16
¶29 In Batson, the Court extended the principles
established in its previous cases regarding the composition of
the venire to the composition of the petit jury.16 476 U.S. at
88. The Court noted that the Fourteenth Amendment principles
that prevented purposeful discrimination in the selection of the
jury venire were indistinguishable from the principles animating
concern over purposeful discrimination in the selection of the
petit jury. See id. (“[T]he State may not draw up its jury lists
pursuant to neutral procedures but then resort to discrimination
at ‘other stages in the selection process.’” (citations
omitted)). Thus, the Supreme Court’s jurisprudence regarding the
selection of the venire and its jurisprudence regarding the
selection of the petit jury are complementary.
¶30 The relationship in Utah law between challenges to the
venire and challenges to the petit jury is also complementary,
particularly with regard to procedural rules. Beginning with
Bankhead, this court has consistently held that challenges to the
jury, both to the composition of the venire and the composition
of the petit jury, must be raised before the jury is sworn or
they are untimely. In Bankhead, we relied on the procedural
guidelines contained in the Jury and Witness Act, Utah Code Ann.
§§ 78-46-1 to -41 (1953), in holding that the defendant’s
objection to the composition of her petit jury was untimely.
Bankhead, 727 P.2d at 217. Two portions of that Act are relevant
to our discussion. First, section 78-46-3 states, “A citizen
shall not be excluded or exempt from jury service on account of
race, color, religion, sex, national origin, age, occupation,
disability, or economic status.” Utah Code Ann. § 78-46-3
(2002). Second, section 78-46-16 provides that a party seeking
relief based on a “failure to comply with this act in selecting a
. . . trial jury” must move for relief “before the trial jury is
sworn.” Id. § 78-46-16(1) (2002) (emphasis added). That section
also states that this procedure is “the exclusive means by which
a [litigant] . . . may challenge a jury on the ground that the
jury was not selected in conformity with this act.” Id. § 78-46-
16(3) (emphasis added).

17 In Harrison, the Utah Court of Appeals made much of this
court’s decision in State v. Tillman, 750 P.2d 546 (1987).
Relying on Tillman, the court of appeals in Harrison rejected the
argument that the defendant’s Batson challenge–not raised until
after the jury was sworn–was untimely under the prior version of
the Jury and Witness Act. Harrison, 805 P.2d at 776 (citing the
Jury Selection and Service Act, Utah Code Ann. § 78-46-16(1)
(Supp. 1990)). The court of appeals noted that the defendant’s
Batson challenge was a constitutional objection, not an objection
made under the Act. Id. The court thus concluded that the
timeliness standards contained within section 78-46-16(1) did not
apply to the defendant’s Batson challenge, and proceeded to apply
the timeliness standards contained within Rule 18(c)(2) of the
Utah Rules of Criminal Procedure. Id. (citing Tillman, 750 P.2d
546, 574 n.115). However, even following Tillman, this court has
consistently applied timeliness standards to constitutional
challenges to the jury selection process that mirror those
contained within section 78-46-16. See infra ¶¶ 32-35.
18 Indeed, it would make for strange procedure to apply
different timeliness standards for challenges raised pursuant to
the Jury and Witness Act–which protects a broader range of
(continued...)
17 No. 20040633
¶31 We note that the Jury and Witness Act purports to
impose procedural rules on Utah’s courts and therefore may be in
tension with article VIII, section 4 of the Utah Constitution.
As we recently noted in Burns v. Boyden, 2006 UT 14, 133 P.3d
370, this provision of the Utah Constitution vests the Utah
Supreme Court with the authority to adopt rules of procedure to
be used in Utah’s courts, id., 2006 UT 14, ¶ 15 n.3 (quoting Utah
Const. art. VIII, § 4), and the legislature with power to alter
the procedural rules adopted by this court “upon a vote of two-
thirds of all members of both houses of the Legislature,” Utah
Const. art. VIII, § 4. However, the status of the procedural
rules contained within the Jury and Witness Act is not before us.
In addition, this court has previously stated on one occasion
that the Act does not govern constitutional challenges to the
jury selection process.17 State v. Tillman, 750 P.2d 546, 574
n.115 (1987). Accordingly, the procedural rules contained within
the Act could not conflict with any procedural rules relevant to
our determination of this case, nor do they. A careful review of
our case law demonstrates that the timeliness standards applied
by this court to constitutional challenges to the jury selection
process, including Batson challenges, continued to mirror those
contained in section 78-46-16 following our decision in
Tillman.18

18 (...continued)
classifications from discrimination in the jury selection
process, see Utah Code Ann. § 78-46-3,–from those applied to
constitutional challenges. As with a Batson challenge, a
violation of the Jury and Witness Act can only be fully remedied
by an objection brought both before the jury is sworn and before
the venire is dismissed. See infra ¶¶ 42-45.
19 We note that this procedure, whereby an objection was
(continued...)
No. 20040633 18
¶32 In State v. Cantu, 750 P.2d 591 (Utah 1988), the first
case decided by this court under the Batson framework, the
timeliness of the defendant’s Batson challenge was not at issue
because the defendant had moved to quash the entire jury panel on
fair cross-section grounds before the prosecution’s peremptory
challenges were even exercised, and he apparently renewed the
objection immediately after the prosecution exercised a
peremptory strike to remove a minority jury member. Id. at 592-
93, 596.
¶33 However, in Redd v. Negley, 785 P.2d 1098 (Utah 1989),
the timeliness of a challenge to the composition of the jury was
squarely before the court. There, the plaintiff apparently
raised the issue of the composition of the selected jury off the
record before the jury was sworn. Id. at 1099. After the jury
was sworn and dismissed for lunch, the plaintiff made a vague
objection on the record regarding the number of minority jurors
on the petit jury. Id. at 1099-1100. The trial court denied the
plaintiff’s objection under section 78-46-16, ruling that the
objection had not been raised before the jury was sworn. Id. at
1100. On appeal, this court disagreed as to the proper way to
view the plaintiff’s vague objection. The majority believed the
plaintiff’s objection amounted only to an objection that there
was not a proportionate number of minority jurors on the petit
jury. Id. at 1100-01. In contrast, the dissent stated that the
plaintiff’s objection could also be characterized as an objection
to the composition of the jury venire or to the defense’s use of
peremptory challenges to remove the only two minority members
from the selected panel–in other words, a Batson challenge. Id.
at 1103-04 (Durham, J., dissenting). However, the court drew no
distinction between these characterizations in its treatment of
the plaintiff’s objection. Rather, the court noted that the
record indicated “that plaintiff objected to the jury selection
prior to the swearing of the jury and that the jury was passed
for cause only with the reservation that plaintiff’s challenge
could be later made.”19 Id. at 1100. The court held that

19 (...continued)
made prior to the swearing of the jury but not addressed by the
court until after the jury was sworn in and dismissed, will
generally not meet the standard we set forth today. A Batson
challenge must be raised both before the jury is sworn and before
the venire is dismissed in order to allow the trial court to
adequately remedy a Batson violation if one has occurred. See
infra ¶¶ 42-45. Obviously, if the grounds for the Batson
challenge are not articulated until after the jury has been sworn
and the remainder of the venire is dismissed, the trial court
cannot cure a Batson violation. Id.
19 No. 20040633
because the challenge was raised before the jury was sworn in,
the trial court had erred in denying the challenge on timeliness
grounds, citing both section 78-46-16 and Bankhead. Id.
¶34 In State v. Span, 819 P.2d 329 (Utah 1991), this court
again addressed the timeliness of a Batson challenge. There, the
defendant alleged that the prosecutor had used a racially
motivated peremptory challenge to remove the only minority juror
from the jury venire. Id. at 336. The defendant raised his
Batson challenge by moving to quash the jury panel before the
jury was sworn. Id. The trial court allowed the prosecutor to
explain the reasons for the peremptory challenge, then denied the
motion on timeliness grounds. Id. at 336-37. On appeal, the
State conceded that the trial court had erred in denying the
Batson challenge on timeliness grounds. Id. at 337. This court
agreed, noting that the defendant’s Batson challenge had been
raised immediately after the peremptory challenges were completed
and before the jury was sworn. Id. The court also cited section
78-46-16 and Bankhead in support of the position that the motion
had been timely made. Id.
¶35 In all of this court’s decisions since Span, we have
never deviated from the rule that a challenge to the composition
of the jury must be raised before the jury is sworn in. See
State v. Young, 853 P.2d 327, 338 (1993) (defendant objected to
composition of the jury on fair cross section grounds before the
jury was sworn in); State v. Alvarez, 872 P.2d 450, 456 (Utah
1994) (defendant raised Batson challenge “[p]rior to the swearing
of the jury”); State v. Higginbotham, 917 P.2d 545, 546 (Utah
1996) (Batson challenge raised as soon as prosecutor used
peremptory challenge to remove only minority juror from panel of
prospective jurors); State v. Colwell, 2000 UT 8, ¶ 14, 994 P.2d
177 (Batson challenge raised as soon as prosecutor used
peremptory challenge to remove only African American juror from
panel of prospective jurors). Even the Utah Court of Appeals’
decision in Salt Lake County v. Carlston, 776 P.2d 653 (Utah Ct.

No. 20040633 20
App. 1989), which properly cited Bankhead, followed this rule,
see id. at 656 n.5. The sole aberration prior to the court of
appeals’ decision in this case is Harrison, in which the court of
appeals erroneously applied rule 18(c)(2) of the Utah Rules of
Criminal Procedure to Batson challenges. Harrison, 805 P.2d at
775-76. However, our decision in Span, which followed Harrison,
clearly indicates that this court continued to rely on the
standard established in Bankhead. Span, 819 P.2d at 337. It has
therefore long been the law in Utah that constitutional
challenges to the composition of the jury–both the venire and to
the selected jury–must be raised before the jury is sworn.
¶36 Our decision is bolstered by the fact that the only
rule of criminal procedure that applies to the composition of
juries requires that a challenge be brought before the jury is
sworn. In contrast with rule 18(c)(2), which does not apply to
challenges to the jury as a panel, rule 18(c)(1) governs
challenges to “[t]he panel . . . of jurors called to serve at a
particular court or for the trial of a particular action.” Utah
R. Crim. P. 18(c)(1). Under this rule, a party may challenge the
panel based “on a material departure from the procedure
prescribed with respect to the selection, drawing, summoning and
return of the panel.” Utah. R. Crim. P. 18(c)(1)(i). In other
words, this rule governs challenges to the composition of the
entire venire. Under this rule, all challenges to the jury panel
must “be taken before the jury is sworn.” Utah R. Crim. P.
18(c)(1)(ii) (emphasis added). As discussed above, supra ¶¶ ,
Batson challenges are based on Fourteenth Amendment concerns
identical to those implicated by discrimination in the selection
of the entire venire. Batson, 476 U.S. at 88. Moreover, Utah
procedural law does not distinguish between challenges to the
venire and challenges to the petit jury. Therefore, while rule
18(c)(1) does not explicitly apply to Batson challenges, which
are challenges to the composition of the selected jury, it
contains the same timeliness rule that applies to Batson
challenges. We also note that the annotations for rule 18 cross-
reference the Jury and Witness Act, which we have relied on for
our Batson timeliness standards. Utah R. Crim. P. 18 cross
references.
¶37 We agree with the court of appeals that Utah’s
procedural standards with respect to Batson challenges “would
best be addressed by an amendment to the Utah Rules of Criminal
Procedure.” Valdez, 2004 UT App 214, ¶ 11 n.1. The Rules of
Criminal Procedure should clearly reflect our case law with
respect to this important procedural requirement, and we will
request the assistance of our Advisory Committee in drafting such
a rule. It is nonetheless clear under Utah law that a

20 Even if the rule that a Batson challenge must be brought
before the remainder of the venire is dismissed is not “a firmly
established and regularly followed state practice,” we note that
we are not “interpos[ing] . . . [it] to prevent subsequent
review” in this case. Ford v. Georgia, 498 U.S. 411, 423-24
(1991) (citations and internal quotation marks omitted). The
rule that a Batson challenge must be brought before the jury is
sworn is firmly established in Utah, and thus it is that rule
which bars subsequent review in this case.
21 No. 20040633
constitutional challenge to the jury selection process–whether it
be to the entire venire or to the jury selected to try the
case–must be brought before the jury is sworn. This rule has
long been a “firmly established and regularly followed state
practice” in Utah, as required by Ford. 498 U.S. at 423
(citations and internal quotation marks omitted). Therefore, we
hold that Valdez’s Batson challenge, which was not brought until
after the jury was sworn, was untimely.
¶38 While our holding is dispositive of this case, it does
not end our analysis. We hold that a Batson challenge must be
raised not only before the jury is sworn, but also before the
remainder of the venire is dismissed in order to be deemed timely
under Utah law. While we believe that the second part of this
rule is established state law, even if it is not “firmly
established and regularly followed,” id., we hold that it is a
procedural requisite to a Batson challenge from this point
forward.20 We first address the origins of this rule in Utah
law, and then the justifications for it.
B. A Batson Challenge Must be Raised Before the Venire is
Dismissed to be Timely Under Utah Law
¶39 While this court has not explicitly considered the
implications of a Batson challenge raised after the remainder of
the venire has been dismissed, the Utah Court of Appeals has. In
Salt Lake County v. Carlston, the court of appeals stated that a
Batson challenge, like other objections, must be “timely
presented to the trial court in a manner sufficient to obtain a
ruling thereon.” 776 P.2d 653, 655 (Utah Ct. App. 1989). In
addressing timeliness standards, the court of appeals stated that
a Batson challenge must be raised before the jury is sworn but
also seemed to adopt a rule that a Batson challenge must be
raised before the venire is dismissed. Id. at 655-56. The court
stated that “the Batson court envisioned a prompt motion to
strike the jury panel, ‘probably before the venire was
dismissed.’” Id. at 656 (quoting United States v. Erwin, 793 F.2d
656, 667 (5th Cir. 1986)). The court of appeals noted that this

No. 20040633 22
rule was based on “two justifications:” (1) “prevent[ing]
defendants from ‘sandbagging’ the prosecution by waiting until
trial has concluded unsatisfactorily before insisting on an
explanation for jury strikes[;]” and (2) remedying “prosecutorial
misconduct prior to commencement of trial simply by seating the
wrongfully struck venireperson.” Id. (quoting United States v.
Forbes, 816 F.2d 1006, 1011 (5th Cir. 1987)).
¶40 In State v. Harrison, the court of appeals considered a
Batson challenge raised after the jury was sworn but before the
venire was dismissed. 805 P.2d 769, 773 (Utah Ct. App. 1991).
The court cited Carlston to support its position that the
defendant had raised his Batson challenge in a manner sufficient
to obtain a ruling from the trial court. Id. at 776. While the
court of appeals mistakenly applied the timeliness standards of
rule 18(c)(2) of the Utah Rules of Criminal Procedure to the
Batson challenge, it never contradicted its position in Carlston
that a Batson challenge must be raised before the venire is
dismissed. See id. Obviously, if a Batson violation is to be
remedied by seating the wrongfully struck juror, as implied by
Carlston, 776 P.2d at 656, a Batson challenge must be raised
before the venire is dismissed if the trial court is to properly
rule on it, id. at 655. Thus, the only logical reading of
Harrison is that the court of appeals left intact the Carlston
rule that a Batson challenge must be raised before the venire is
dismissed.
¶41 Until the court of appeals’ decision in State v.
Valdez, 2004 UT App 214, ¶ 10, 95 P.3d 291, no Utah court had
ever allowed a Batson challenge to proceed as timely after the
venire had been dismissed. We hold that the court of appeals in
Valdez erred by reading Harrison to mean that a Batson challenge
can be raised after the dismissal of the venire. Rather, the
rule established in Carlston that a Batson challenge must be
raised before the venire is dismissed existed undisturbed until
the court of appeals implicitly overruled it in Valdez. Id.
Even if this were not the case, we would be compelled to adopt
and apply this rule prospectively, for this rule logically flows
from the rationale underlying a Batson challenge.
¶42 In Carlston, the Utah Court of Appeals correctly noted
that “the process mandated by Batson . . . rests on the premise
that the trial court will hear the objection and make a factual
finding of whether the [proponent] has used peremptory challenges
in a discriminatory manner.” Carlston, 776 P.2d at 656. The
court noted that an untimely Batson objection impedes the ability
of the trial judge to make a proper factual finding on the
evidence presented and also deprives the proponent “of the

21 This is not to say that a party who raises a Batson
challenge before peremptory challenges are even used has raised a
timely Batson challenge. Obviously, a party cannot properly
raise a Batson challenge until that party is able to make out a
prima facie case of purposeful discrimination, which in most
cases will not be possible until peremptory challenges are
exercised.
23 No. 20040633
opportunity to present evidence of any constitutionally
permissible reasons for challenges to the venire members.” Id.
Indeed, the three-step process of Batson would be severely
impeded were a Batson challenge to be allowed after the jury
selection process is complete. The burden-shifting framework of
Batson is best implemented if it is litigated while the
peremptory strikes are fresh in the minds of both the court and
the litigants. See McCrory v. Henderson, 82 F.3d 1243, 1247-48
(2d Cir. 1996) (citing numerous decisions holding that the
“subjective” nature of the peremptory challenge “mandates that
any objection to its use be raised and ruled upon promptly”).
¶43 First, the party raising the Batson challenge will be
better able to make out a prima facie case if he can discuss the
proponent’s use of peremptory strikes in relation to the
characteristics of the individual jurors stricken as well any
relevant voir dire. In other words, the opponent will be more
equipped to demonstrate that the Batson challenge has merit if he
raises it sooner rather than later.21 See State v. Alvarez, 872
P.2d 450, 455 (Utah 1994) (noting that the purpose of the prima
facie requirement is to “separate meritless claims of
discrimination from those that may have merit” (citation and
internal quotation marks omitted)). Second, the proponent of the
peremptory strikes is more capable of presenting evidence to
rebut a Batson challenge if the Batson challenge is promptly
raised because both voir dire and the stricken jurors will be
fresh in his mind. Finally, the trial judge must be able to
weigh the evidence presented to determine whether the Batson
standard has been met. This necessarily requires that the trial
judge weigh the arguments and credibility of both litigants in
light of the individual jurors’ behavior, mannerisms, and
responses to voir dire. This duty is likewise accomplished more
effectively if a Batson challenge is promptly raised. “The
Batson framework is designed to produce actual answers to
suspicions and inferences that discrimination may have infected
the jury selection process.” Johnson v. California, 125 S. Ct.
2410, 2418 (2005). In order to ensure that this framework
produces actual answers, it is necessary that Batson challenges
are promptly raised and that courts timely rule upon them. Id.
The rule we set forth, which requires that a Batson challenge be

22 In McCrory v. Henderson, 82 F.3d 1243 (2d Cir. 1996), the
court observed:
If . . . a Batson objection may be raised
after the jury has been sworn and trial has
begun, there can be no remedy short of
aborting the trial. This would permit the
defendant to manipulate the system to the
extreme prejudice of the prosecution and give
the defendant a strong inducement to delay
raising the objection until trial is
underway. As the trial judge is unlikely for
reasons of judicial economy to abort the
trial, the defendant may have the opportunity
to test his fortunes with the first jury,
preserving the opportunity for a mistrial and
a second round in the event of a conviction.
See United States v. Dobynes, 905 F.2d 1192,
1196-97 (8th Cir.) (holding that Batson
challenge raised for the first time after
trial was untimely in part because only
remedy after trial is vacating the
conviction), cert. denied, 498 U.S. 877, 112
L. Ed. 2d 167, 111 S. Ct. 206 (1990); United
States v. Forbes, 816 F.2d 1006, 1011 (5th
Cir. 1987)(“The ‘timely objection’ rule is
(continued...)
No. 20040633 24
raised both before the jury is sworn and before the venire is
dismissed, efficiently allows the trial court to determine the
issues the Batson test is designed to resolve.
¶44 In addition, a Batson challenge must be raised in such
a manner that the trial court is able to fashion a remedy in the
event a Batson violation has occurred. As the Johnson Court
noted, the Batson test “encourages prompt rulings on objections
to peremptory challenges without substantial disruption of the
jury selection process.” Id. (citations and internal quotation
marks omitted). A Batson violation can only be remedied without
substantially disrupting the jury selection process if it is
brought before the venire is dismissed. If a Batson violation is
found before the venire is dismissed, the violation can be
remedied simply by reinstating the stricken juror. Once the
venire has been dismissed, however, a sustained Batson challenge
will require the trial judge to, at minimum, call additional
jurors, and may require the judge to call an entirely new venire
from which to select a new jury. Also, if a Batson violation is
found after the jury has been sworn and the venire excused, the
only available remedy is a mistrial.22 See McCrory, 82 F.3d at

22 (...continued)
designed to prevent defendants from
‘sandbagging’ the prosecution by waiting
until trial has concluded unsatisfactorily
before insisting on an explanation for jury
strikes that by then the prosecutor may
largely have forgotten.”).
Id. at 1247.
25 No. 20040633
1247. We see no legitimate reason to sanction such an
inefficient use of judicial time and resources, or to allow such
a burden to be imposed on the parties. Moreover, to allow a
Batson challenge to proceed after the venire has been dismissed
is only to sanction abuse. If such a result were allowed, a
party would be able to delay raising a Batson challenge until it
determined whether it approved of the selected jury. Such
sandbagging is antithetical to notions of judicial economy and
procedural fairness.
¶45 Finally, the rights that the Batson challenge is
designed to protect cannot be fully vindicated if a Batson
challenge is allowed after the dismissal of the venire. A Batson
challenge is designed to remedy “harm to the litigants, the
community, and the individual jurors who are wrongfully excluded”
that occurs when discriminatory jury selection criteria are
tolerated. J.E.B. v. Alabama, 511 U.S. 127, 140 (1994). While
the Court has held that individual jurors who are wrongfully
excluded may bring suit, it has also noted that “[a]s a practical
matter . . . these challenges are rare.” Powers v. Ohio, 499
U.S. 400, 414 (1991). This is because “[p]otential jurors are
not parties . . . and have no opportunity to be heard at the time
of their exclusion.” Id. Moreover, a wrongfully stricken juror
cannot “easily obtain declaratory or injunctive relief when
discrimination occurs.” Id. Therefore, in the vast majority of
cases in which an individual juror is wrongfully excluded, the
discrimination against the juror goes unredressed if he remains
excluded from jury service. The only logical way to ensure the
possibility of redress is to require that a Batson objection be
raised before the venire is dismissed. Under this rule, if a
Batson challenge is found, the improperly excluded juror can then
be reinstated.
¶46 In summary, we hold that a Batson challenge must be
raised both before the jury is sworn and before the venire is
dismissed in order to be timely under Utah law. We note that
this rule is similar to the rule that was sanctioned by the
Supreme Court in Ford v. Georgia. See 498 U.S. 411, 422 (1991)
(“The requirement that any Batson claim be raised not only before

23 Valdez cites to only one other case in which a court
allowed a Batson challenge to proceed after the jury had been
sworn. See Lewis v. Commonwealth, 492 S.E.2d 492, 493 (Va. Ct.
App. 1997). While it is true that in Lewis the Virginia Court of
Appeals interpreted its state’s statutes to allow a Batson
challenge to proceed after the jury was sworn “with leave of
court”, the court declined to extend its holding to a situation
in which the jury had been sworn and the remainder of the venire
excused. Id. at 494. The court reasoned that:
A trial court’s exercise of discretion may be
improperly cabined, however, if the challenge
is made after the jury is sworn and the
remaining venirepersons are discharged. At
that point, the court cannot reseat a juror
improperly stricken, and discharging the
venire and beginning the process of jury
selection anew may be compelled under the
circumstances. Such a result will generally
serve neither the public policy Batson seeks
to advance, nor the fair administration of
justice.
Id.
No. 20040633 26
trial, but in the period between the selection of the jurors and
the administration of their oaths, is a sensible rule.”). We
also note that the fact that the rule we adopt is widely followed
by other jurisdictions–both federal and state–that have
considered this issue. See, e.g., Morning v. Zapata Protein
(USA), Inc., 128 F.3d 213, 216 (4th Cir. 1997) (noting that most
of the federal circuits have taken the cue from Ford and
“requir[ed] Batson challenges to be raised, at the latest, before
the venire is excused”); McCrory, 82 F.3d at 1247 (“The Court’s
discussion in Batson, however, makes clear that it envisioned an
objection raised during the jury selection process.” (emphasis
added)); State v. Ford, 2001 MT 230, ¶ 30, 39 P.3d 108 (holding
that a Batson challenge is not timely if the jury has been sworn
and the venire dismissed, and observing that “[s]everal
jurisdictions have closely analyzed Batson’s language and
concluded that the U.S. Supreme Court envisioned that a Batson
challenge must be made before the jury is sworn,” while citing
numerous state decisions barring Batson objections after the jury
is sworn and the venire is dismissed). We are aware of no case
in any jurisdiction, aside from the court of appeals’ decision in
this case below, in which a court found a Batson challenge to be
timely after both the jury was sworn and the remainder of the
venire was dismissed–in other words, after the jury selection
process was wholly complete.23 Accordingly, we hold that

27 No. 20040633
Valdez’s Batson challenge–raised after the jury was sworn and the
venire dismissed–was untimely under Utah law.
CONCLUSION
¶47 We hold that a Batson challenge must be raised before
the jury is sworn and before the remainder of the venire has been
excused in order to be timely under Utah law. Because we hold
that Valdez’s Batson challenge was not timely, we reverse the
court of appeals and remand this case to that court for
consideration of the other issues raised by Valdez below.
---
¶48 Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.