What is the test for a defense attorney to argue that a prospective juror's demeanor is a factor in the prosecution's argument for a peremptory challenge?

California, United States of America


The following excerpt is from The PEOPLE V. ENGELBREKTSON, A123906, No. 050809467 (Cal. App. 2010):

Of particular significance under the circumstances of this case, where "the explanation for a peremptory challenge is based on a prospective juror's demeanor, the judge should take into account, among other things, any observations of the juror that the judge was able to make during voir dire." (Thaler v. Haynes (2010) 130 S.Ct. 1171, 1174-1175.) However, this does not mean that, in the absence of a personal recollection of the challenged juror's demeanor, the judge must reject the prosecution's demeanorbased explanation. Rather, in such a situation, "the best evidence of the intent of the attorney exercising a strike is often that attorney's demeanor." (Id. at p. 1175, citing Snyder v. Louisiana (2008) 552 U.S. 472, 477.)

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