# Hernandez v. New York
## Concurring Opinion

    O'Connor

## Dissenting Opinions

    Blackmun
    Stevens
United States Supreme Court
500 U.S. 352
Hernandez v. New York
No. 89-7645 Argued: Feb. 25, 1991. --- Decided: May 28, 1991
Syllabus
Counsel for petitioner Hernandez at his New York trial objected that the prosecutor had used four peremptory challenges to exclude Latino potential jurors. Two of the jurors had brothers who had been convicted of crimes, and petitioner no longer presses his objection to exclusion of those individuals. The ethnicity of one of the other two jurors was uncertain. Without waiting for a ruling on whether Hernandez had established a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 the prosecutor volunteered that he had struck these two jurors, who were both bilingual, because he was uncertain that they would be able to listen and follow the interpreter. He explained that they had looked away from him and hesitated before responding to his inquiry whether they would accept the translator as the final arbiter of the witnesses' responses; that he did not know which jurors were Latinos; and that he had no motive to exclude Latinos from the jury, since the complainants and all of his civilian witnesses were Latinos. The court rejected Hernandez's claim, and its decision was affirmed by the state appellate courts.
Held: The judgment is affirmed.
75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621, affirmed.
Justice KENNEDY, joined by THE CHIEF JUSTICE, Justice WHITE, and Justice SOUTER, announced the judgment of the Court, concluding that the prosecutor did not use peremptory challenges in a manner violating the Equal Protection Clause. Under Batson § three-step process for evaluating an objection to peremptory challenges, (1) a defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race, (2) the burden then shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question, and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Pp. 358-372.
(a) Since the prosecutor offered an explanation for the peremptory challenges and the trial court ruled on the ultimate question of intentional discrimination, the preliminary issue whether Hernandez made a prima facie showing of discrimination is moot. Cf. United States Postal Service Bd. of Govs. v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403. P. 359.
(b) The prosecutor offered a race-neutral basis for his peremptory strikes. The issue here is the facial validity of the prosecutor's explanation, which must be based on something other than race. While the prosecutor's criterion for exclusion-whether jurors might have difficulty in accepting the translator's rendition of Spanish-language testimony-might have resulted in the disproportionate removal of prospective Latino jurors, it is proof of racially discriminatory intent or purpose that is required to show a violation of the Equal Protection Clause. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265, 97 S.Ct. 555, 562-563, 50 L.Ed.2d 450. This Court need not address Hernandez's argument that Spanish-speaking ability bears such a close relation to ethnicity that exercising a peremptory challenge on the former ground violates equal protection, since the prosecutor explained that the jurors' specific responses and demeanor, and not their language proficiency alone, caused him to doubt their ability to defer to the official translation. That a high percentage of bilingual jurors might hesitate before answering questions like those asked here and, thus, would be excluded under the prosecutor's criterion would not cause the criterion to fail the race-neutrality test. The reason offered by the prosecutor need not rise to the level of a challenge for cause, but the fact that it corresponds to a valid for-cause challenge will demonstrate its race-neutral character. Pp. 359-363.
(c) The trial court did not commit clear error in determining that the prosecutor did not discriminate on the basis of the Latino jurors' ethnicity. A trial court should give appropriate weight to the disparate impact of the prosecutor's criterion in determining whether the prosecutor acted with a forbidden intent, even though that factor is not conclusive in the preliminary race-neutrality inquiry. Here, the court chose to believe the prosecutor's explanation and reject Hernandez's assertion that the reasons were pretextual. That decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal, regardless of whether it is a state-court decision and whether it relates to a constitutional issue. See, e.g., 324 Liquor Corp. v. Duffy, 479 U.S. 335, 351, 107 S.Ct. 720, 729, 93 L.Ed.2d 667. Deference makes particular sense in this context because the finding will largely turn on an evaluation of credibility. Hernandez's argument that there should be "independent" appellate review of a state trial court's denial of a Batson claim is rejected. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502; Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405; Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074, distinguished. Here, the court took a permissible view of the evidence in crediting the prosecutor's explanation. Apart from the prosecutor's demeanor, the court could have relied on the facts that he defended his use of peremptory challenges without being asked to do so by the judge, that he did not know which jurors were Latinos, and that ethnicity of the victims and the prosecution witnesses tended to undercut any motive to exclude Latinos from the jury. Moreover, the court could rely on the facts that only three of the challenged jurors can with confidence be identified as Latinos, and that the prosecutor had a verifiable and legitimate explanation for two of those challenges. Pp. 363-370.
(d) This decision does not imply that exclusion of bilinguals from jury service is wise, or even constitutional in all cases. It may be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis. Cf., e.g., Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S.Ct. 619, 70 L.Ed. 1059. And, a policy of striking all who speak a given language, without regard to the trial's particular circumstances or the jurors' individual responses, may be found by the trial judge to be a pretext for racial discrimination. Pp. 370-372.
Justice O'CONNOR, joined by Justice SCALIA, while agreeing that the Court should review for clear error the trial court's finding as to discriminatory intent, and that the finding of no discriminatory intent was not clearly erroneous in this case, concluded that Justice KENNEDY's opinion goes further than necessary in assessing the constitutionality of the prosecutor's asserted justification for his peremptory strikes. If, as in this case, the trial court believes the prosecutor's nonracial justification, and that finding is not clearly erroneous, that is the end of the inquiry. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, does not require that a prosecutor justify a jury strike at the level of a for-cause challenge or that the justification be unrelated to race. Batson requires only that the prosecutor's reason for striking a juror not be the juror's race. Pp. 372-375.
KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., and WHITE and SOUTER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. BLACKMUN, J., filed a dissenting opinion. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined.
Kenneth Kimerling, New York City, for petitioner.
Jay M. Cohen, New York City, for respondent.
Justice KENNEDY announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, Justice WHITE and Justice SOUTER join.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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