Can prosecutors use gender assumptions about protective order violations in jury selection? State v. Jensen Explained

The Utah Court of Appeals addressed whether prosecutors can strike jurors based on gender assumptions about protective order cases in State v. Jensen, providing important guidance on equal protection violations in jury selection.

Background and Facts

Jensen was charged with violating a protective order. During jury selection, the prosecutor used all three peremptory challenges on male jurors. When challenged, she explained that she assumed men involved in protective orders “usually would be on defendant’s side, since more likely than not men are the respondents to protective orders, [rather] than women.” The trial court accepted this explanation as non-discriminatory.

Key Legal Issues

The court examined whether the prosecutor’s explanation violated equal protection under the Batson framework and whether proper service of the protective order was sufficiently proven. Jensen argued that page five of the protective order document was inadmissible and that without it, the prosecution failed to prove proper service as required by Utah Code section 76-5-108.

Court’s Analysis and Holding

The court found that the prosecutor’s explanation was “unavoidably linked to the jurors’ gender” and violated equal protection. The court rejected the State’s argument that statistical evidence showing 95% of domestic violence perpetrators are male justified the gender-based assumptions, citing J.E.B. v. Alabama that “even when some statistical support can be conjured up for the generalization,” gender-based jury selection remains prohibited. Regarding proper service, the court held that Jensen’s signature accepting service on page five, combined with evidence of his presence at the hearing, sufficiently proved proper service under Utah Rules of Evidence 902.

Practice Implications

This decision reinforces that prosecutors cannot rely on gender stereotypes in jury selection, even when supported by statistics. The court’s rejection of “dual motivation” analysis means that offering both discriminatory and non-discriminatory explanations will not cure an equal protection violation. Practitioners should focus on whether explanations rely on gender-based assumptions rather than truly neutral factors when challenging peremptory strikes.