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Mississippi Senate Bill SB2773

Mississippi 2025 Regular Session

Mississippi Senate Bill SB2773 Compare Versions

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11 MISSISSIPPI LEGISLATURE 2025 Regular Session To: Judiciary, Division A By: Senator(s) Simmons (12th) Senate Bill 2773 AN ACT TO PROHIBIT A PARTY FROM USING A PEREMPTORY CHALLENGE TO REMOVE A PROSPECTIVE JUROR ON THE BASIS OF THE PROSPECTIVE JUROR'S RACE, ETHNICITY, GENDER, GENDER IDENTITY, SEXUAL ORIENTATION, NATIONAL ORIGIN, OR RELIGIOUS AFFILIATION, OR THE PERCEIVED MEMBERSHIP OF THE PROSPECTIVE JUROR IN ANY OF THOSE GROUPS; TO AUTHORIZE A PARTY, OR THE TRIAL COURT ON ITS OWN MOTION, TO OBJECT TO THE USE OF A PEREMPTORY CHALLENGE BASED ON THESE CRITERIA; TO REQUIRE THE PARTY EXERCISING THE CHALLENGE, UPON OBJECTION, TO STATE THE REASONS THE PEREMPTORY CHALLENGE HAS BEEN EXERCISED; TO REQUIRE THE COURT TO EVALUATE THE REASONS GIVEN AND, IF THE COURT GRANTS THE OBJECTION, AUTHORIZE THE COURT TO TAKE CERTAIN ACTIONS, INCLUDING, BUT NOT LIMITED TO, STARTING A NEW JURY SELECTION, DECLARING A MISTRIAL AT THE REQUEST OF THE OBJECTING PARTY, SEATING THE CHALLENGED JUROR, OR PROVIDING ANOTHER REMEDY AS THE COURT DEEMS APPROPRIATE; TO PROVIDE FOR A DE NOVO STANDARD OF REVIEW BY AN APPELLATE COURT REVIEWING THE DENIAL OF AN OBJECTION; TO PROVIDE THAT THE ACT APPLIES TO CRIMINAL JURY TRIALS IN WHICH JURY SELECTION BEGINS ON OR AFTER JANUARY 1, 2025; TO PROVIDE THAT THE ACT APPLIES TO CIVIL JURY TRIALS IN WHICH JURY SELECTION BEGINS ON OR AFTER JANUARY 1, 2027; AND FOR RELATED PURPOSES. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI: SECTION 1. (1) The Legislature finds: (a) That peremptory challenges are frequently used in criminal cases to exclude potential jurors from serving based on their race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that exclusion from jury service has disproportionately harmed African Americans, Latinos, and other people of color; (b) That the existing procedure for determining whether a peremptory challenge was exercised on the basis of a legally impermissible reason has failed to eliminate that discrimination; and (c) That requiring proof of intentional bias renders the procedure ineffective and that many of the reasons routinely advanced to justify the exclusion of jurors from protected groups are in fact associated with stereotypes about those groups or otherwise based on unlawful discrimination. (2) The intent of the Legislature is: (a) To put into place an effective procedure for eliminating the unfair exclusion of potential jurors based on race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, through the exercise of peremptory challenges; (b) That this act be broadly construed to further the purpose of eliminating the use of group stereotypes and discrimination, whether based on conscious or unconscious bias, in the exercise of peremptory challenges; and (c) That this act shall not, in purpose or effect, lower the standard for judging challenges for cause or expand use of challenges for cause. (3) Therefore, this act designates several justifications as presumptively invalid and provides a remedy for both conscious and unconscious bias in the use of peremptory challenges. SECTION 2. (1) A party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups. (2) A party, or the trial court on its own motion, may object to the improper use of a peremptory challenge under subsection (1) of this section. After the objection is made, any further discussion shall be conducted outside the presence of the panel. The objection shall be made before the jury is impaneled, unless information becomes known that could not have reasonably been known before the jury was impaneled. (3) Upon objection to the exercise of a peremptory challenge pursuant to this section, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised. (4) (a) The court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. The court shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge. If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. The court need not find purposeful discrimination to sustain the objection. The court shall explain the reasons for its ruling on the record. A motion brought under this section shall also be deemed a sufficient presentation of claims asserting the discriminatory exclusion of jurors in violation of the United States and Mississippi Constitutions; (b) (i) For purposes of this section, an objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, has resulted in the unfair exclusion of potential jurors in the State of Mississippi; (ii) For purposes of this section, a "substantial likelihood" means more than a mere possibility but less than a standard of more likely than not; and (iii) For purposes of this act, "unconscious bias" includes implicit and institutional biases; and (c) In making its determination, the circumstances the court may consider include, but are not limited to, any of the following: (i) Whether any of the following circumstances exist: 1. The objecting party is a member of the same perceived cognizable group as the challenged juror; 2. The alleged victim is not a member of that perceived cognizable group; and 3. Witnesses or the parties are not members of that perceived cognizable group; (ii) Whether race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, bear on the facts of the case to be tried; (iii) The number and types of questions posed to the prospective juror, including, but not limited to, any the following: 1. Consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the concerns later stated by the party as the reason for the peremptory challenge pursuant to subsection (3) of this section; 2. Whether the party exercising the peremptory challenge engaged in cursory questioning of the challenged potential juror; and 3. Whether the party exercising the peremptory challenge asked different questions of the potential juror against whom the peremptory challenge was used in contrast to questions asked of other jurors from different perceived cognizable groups about the same topic or whether the party phrased those questions differently; (iv) Whether other prospective jurors, who are not members of the same cognizable group as the challenged prospective juror, provided similar, but not necessarily identical, answers but were not the subject of a peremptory challenge by that party; (v) Whether a reason might be disproportionately associated with a race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups; (vi) Whether the reason given by the party exercising the peremptory challenge was contrary to or unsupported by the record; and (vii) Whether the counsel or counsel's office exercising the challenge has used peremptory challenges disproportionately against a given race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, in the present case or in past cases, including whether the counsel or counsel's office who made the challenge has a history of prior violations under Batson v. Kentucky (1986) 476 U.S. 79, People v. Wheeler (1978) 22 Cal.3d 258, Section 231.5, or this section. (5) A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror's ability to be fair and impartial in the case: (a) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system; (b) Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner; (c) Having a close relationship with people who have been stopped, arrested or convicted of a crime; (d) A prospective juror's neighborhood; (e) Having a child outside of marriage; (f) Receiving state benefits; (g) Not being a native English speaker; (h) The ability to speak another language; (i) Dress, attire or personal appearance; (j) Employment in a field that is disproportionately occupied by members listed in subsection (1) of this section or that serves a population disproportionately comprised of members of a group or groups listed in subsection (1) of this section; (k) Lack of employment or underemployment of the prospective juror or prospective juror's family member; (l) A prospective juror's apparent friendliness with another prospective juror of the same group as listed in subsection (1) of this section; or (m) Any justification that is similarly applicable to a questioned prospective juror or jurors, who are not members of the same cognizable group as the challenged prospective juror, but were not the subject of a peremptory challenge by that party. The unchallenged prospective juror or jurors need not share any other characteristics with the challenged prospective juror for peremptory challenge relying on this justification to be considered presumptively invalid. (6) For purposes of subsection (5) of this section, the term "clear and convincing" refers to the degree of certainty the factfinder must have in determining whether the reasons given for the exercise of a peremptory challenge are unrelated to the prospective juror's cognizable group membership, bearing in mind conscious and unconscious bias. To determine that a presumption of invalidity has been overcome, the factfinder shall determine that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror's ability to be fair and impartial in the case. (7) (a) The following reasons for peremptory challenges have historically been associated with improper discrimination in jury selection: (i) The prospective juror was inattentive, or staring or failing to make eye contact; (ii) The prospective juror exhibited either a lack of rapport or problematic attitude, body language or demeanor; and (iii) The prospective juror provided unintelligent or confused answers. (b) The reasons set forth in this paragraph (a) of this subsection are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court's own observations or the observations of counsel for the objecting party. Even with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior or manner in which the prospective juror answered questions matters to the case to be tried. (8) Upon a court granting an objection to the improper exercise of a peremptory challenge, the court shall do one or more of the following: (a) Quash the jury venire and start jury selection anew. This remedy shall be provided if requested by the objecting party; (b) If the motion is granted after the jury has been impaneled, declare a mistrial and select a new jury if requested by the defendant; (c) Seat the challenged juror; (d) Provide the objecting party additional challenges; and (e) Provide another remedy as the court deems appropriate; (9) (a) This section applies in all criminal jury trials in which jury selection begins on or after January 1, 2025. (b) This section applies in all civil jury trials in which jury selection begins on or after January 1, 2027. (10) The denial of an objection made under this section shall be reviewed by the appellate court de novo, with the trial court's express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror's demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under subsection (3) of this section and shall not speculate as to or consider reasons that were not given to explain either the party's use of the peremptory challenge or the party's failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial. (11) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. SECTION 3. This act shall take effect and be in force from and after July 1, 2025.
22
33 MISSISSIPPI LEGISLATURE
44
55 2025 Regular Session
66
77 To: Judiciary, Division A
88
99 By: Senator(s) Simmons (12th)
1010
1111 # Senate Bill 2773
1212
1313 AN ACT TO PROHIBIT A PARTY FROM USING A PEREMPTORY CHALLENGE TO REMOVE A PROSPECTIVE JUROR ON THE BASIS OF THE PROSPECTIVE JUROR'S RACE, ETHNICITY, GENDER, GENDER IDENTITY, SEXUAL ORIENTATION, NATIONAL ORIGIN, OR RELIGIOUS AFFILIATION, OR THE PERCEIVED MEMBERSHIP OF THE PROSPECTIVE JUROR IN ANY OF THOSE GROUPS; TO AUTHORIZE A PARTY, OR THE TRIAL COURT ON ITS OWN MOTION, TO OBJECT TO THE USE OF A PEREMPTORY CHALLENGE BASED ON THESE CRITERIA; TO REQUIRE THE PARTY EXERCISING THE CHALLENGE, UPON OBJECTION, TO STATE THE REASONS THE PEREMPTORY CHALLENGE HAS BEEN EXERCISED; TO REQUIRE THE COURT TO EVALUATE THE REASONS GIVEN AND, IF THE COURT GRANTS THE OBJECTION, AUTHORIZE THE COURT TO TAKE CERTAIN ACTIONS, INCLUDING, BUT NOT LIMITED TO, STARTING A NEW JURY SELECTION, DECLARING A MISTRIAL AT THE REQUEST OF THE OBJECTING PARTY, SEATING THE CHALLENGED JUROR, OR PROVIDING ANOTHER REMEDY AS THE COURT DEEMS APPROPRIATE; TO PROVIDE FOR A DE NOVO STANDARD OF REVIEW BY AN APPELLATE COURT REVIEWING THE DENIAL OF AN OBJECTION; TO PROVIDE THAT THE ACT APPLIES TO CRIMINAL JURY TRIALS IN WHICH JURY SELECTION BEGINS ON OR AFTER JANUARY 1, 2025; TO PROVIDE THAT THE ACT APPLIES TO CIVIL JURY TRIALS IN WHICH JURY SELECTION BEGINS ON OR AFTER JANUARY 1, 2027; AND FOR RELATED PURPOSES.
1414
1515 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
1616
1717 SECTION 1. (1) The Legislature finds:
1818
1919 (a) That peremptory challenges are frequently used in criminal cases to exclude potential jurors from serving based on their race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that exclusion from jury service has disproportionately harmed African Americans, Latinos, and other people of color;
2020
2121 (b) That the existing procedure for determining whether a peremptory challenge was exercised on the basis of a legally impermissible reason has failed to eliminate that discrimination; and
2222
2323 (c) That requiring proof of intentional bias renders the procedure ineffective and that many of the reasons routinely advanced to justify the exclusion of jurors from protected groups are in fact associated with stereotypes about those groups or otherwise based on unlawful discrimination.
2424
2525 (2) The intent of the Legislature is:
2626
2727 (a) To put into place an effective procedure for eliminating the unfair exclusion of potential jurors based on race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, through the exercise of peremptory challenges;
2828
2929 (b) That this act be broadly construed to further the purpose of eliminating the use of group stereotypes and discrimination, whether based on conscious or unconscious bias, in the exercise of peremptory challenges; and
3030
3131 (c) That this act shall not, in purpose or effect, lower the standard for judging challenges for cause or expand use of challenges for cause.
3232
3333 (3) Therefore, this act designates several justifications as presumptively invalid and provides a remedy for both conscious and unconscious bias in the use of peremptory challenges.
3434
3535 SECTION 2. (1) A party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.
3636
3737 (2) A party, or the trial court on its own motion, may object to the improper use of a peremptory challenge under subsection (1) of this section. After the objection is made, any further discussion shall be conducted outside the presence of the panel. The objection shall be made before the jury is impaneled, unless information becomes known that could not have reasonably been known before the jury was impaneled.
3838
3939 (3) Upon objection to the exercise of a peremptory challenge pursuant to this section, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised.
4040
4141 (4) (a) The court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. The court shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge. If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. The court need not find purposeful discrimination to sustain the objection. The court shall explain the reasons for its ruling on the record. A motion brought under this section shall also be deemed a sufficient presentation of claims asserting the discriminatory exclusion of jurors in violation of the United States and Mississippi Constitutions;
4242
4343 (b) (i) For purposes of this section, an objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, has resulted in the unfair exclusion of potential jurors in the State of Mississippi;
4444
4545 (ii) For purposes of this section, a "substantial likelihood" means more than a mere possibility but less than a standard of more likely than not; and
4646
4747 (iii) For purposes of this act, "unconscious bias" includes implicit and institutional biases; and
4848
4949 (c) In making its determination, the circumstances the court may consider include, but are not limited to, any of the following:
5050
5151 (i) Whether any of the following circumstances exist:
5252
5353 1. The objecting party is a member of the same perceived cognizable group as the challenged juror;
5454
5555 2. The alleged victim is not a member of that perceived cognizable group; and
5656
5757 3. Witnesses or the parties are not members of that perceived cognizable group;
5858
5959 (ii) Whether race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, bear on the facts of the case to be tried;
6060
6161 (iii) The number and types of questions posed to the prospective juror, including, but not limited to, any the following:
6262
6363 1. Consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the concerns later stated by the party as the reason for the peremptory challenge pursuant to subsection (3) of this section;
6464
6565 2. Whether the party exercising the peremptory challenge engaged in cursory questioning of the challenged potential juror; and
6666
6767 3. Whether the party exercising the peremptory challenge asked different questions of the potential juror against whom the peremptory challenge was used in contrast to questions asked of other jurors from different perceived cognizable groups about the same topic or whether the party phrased those questions differently;
6868
6969 (iv) Whether other prospective jurors, who are not members of the same cognizable group as the challenged prospective juror, provided similar, but not necessarily identical, answers but were not the subject of a peremptory challenge by that party;
7070
7171 (v) Whether a reason might be disproportionately associated with a race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups;
7272
7373 (vi) Whether the reason given by the party exercising the peremptory challenge was contrary to or unsupported by the record; and
7474
7575 (vii) Whether the counsel or counsel's office exercising the challenge has used peremptory challenges disproportionately against a given race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, in the present case or in past cases, including whether the counsel or counsel's office who made the challenge has a history of prior violations under Batson v. Kentucky (1986) 476 U.S. 79, People v. Wheeler (1978) 22 Cal.3d 258, Section 231.5, or this section.
7676
7777 (5) A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror's ability to be fair and impartial in the case:
7878
7979 (a) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system;
8080
8181 (b) Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner;
8282
8383 (c) Having a close relationship with people who have been stopped, arrested or convicted of a crime;
8484
8585 (d) A prospective juror's neighborhood;
8686
8787 (e) Having a child outside of marriage;
8888
8989 (f) Receiving state benefits;
9090
9191 (g) Not being a native English speaker;
9292
9393 (h) The ability to speak another language;
9494
9595 (i) Dress, attire or personal appearance;
9696
9797 (j) Employment in a field that is disproportionately occupied by members listed in subsection (1) of this section or that serves a population disproportionately comprised of members of a group or groups listed in subsection (1) of this section;
9898
9999 (k) Lack of employment or underemployment of the prospective juror or prospective juror's family member;
100100
101101 (l) A prospective juror's apparent friendliness with another prospective juror of the same group as listed in subsection (1) of this section; or
102102
103103 (m) Any justification that is similarly applicable to a questioned prospective juror or jurors, who are not members of the same cognizable group as the challenged prospective juror, but were not the subject of a peremptory challenge by that party. The unchallenged prospective juror or jurors need not share any other characteristics with the challenged prospective juror for peremptory challenge relying on this justification to be considered presumptively invalid.
104104
105105 (6) For purposes of subsection (5) of this section, the term "clear and convincing" refers to the degree of certainty the factfinder must have in determining whether the reasons given for the exercise of a peremptory challenge are unrelated to the prospective juror's cognizable group membership, bearing in mind conscious and unconscious bias. To determine that a presumption of invalidity has been overcome, the factfinder shall determine that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror's ability to be fair and impartial in the case.
106106
107107 (7) (a) The following reasons for peremptory challenges have historically been associated with improper discrimination in jury selection:
108108
109109 (i) The prospective juror was inattentive, or staring or failing to make eye contact;
110110
111111 (ii) The prospective juror exhibited either a lack of rapport or problematic attitude, body language or demeanor; and
112112
113113 (iii) The prospective juror provided unintelligent or confused answers.
114114
115115 (b) The reasons set forth in this paragraph (a) of this subsection are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court's own observations or the observations of counsel for the objecting party. Even with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior or manner in which the prospective juror answered questions matters to the case to be tried.
116116
117117 (8) Upon a court granting an objection to the improper exercise of a peremptory challenge, the court shall do one or more of the following:
118118
119119 (a) Quash the jury venire and start jury selection anew. This remedy shall be provided if requested by the objecting party;
120120
121121 (b) If the motion is granted after the jury has been impaneled, declare a mistrial and select a new jury if requested by the defendant;
122122
123123 (c) Seat the challenged juror;
124124
125125 (d) Provide the objecting party additional challenges; and
126126
127127 (e) Provide another remedy as the court deems appropriate;
128128
129129 (9) (a) This section applies in all criminal jury trials in which jury selection begins on or after January 1, 2025.
130130
131131 (b) This section applies in all civil jury trials in which jury selection begins on or after January 1, 2027.
132132
133133 (10) The denial of an objection made under this section shall be reviewed by the appellate court de novo, with the trial court's express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror's demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under subsection (3) of this section and shall not speculate as to or consider reasons that were not given to explain either the party's use of the peremptory challenge or the party's failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.
134134
135135 (11) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
136136
137137 SECTION 3. This act shall take effect and be in force from and after July 1, 2025.