Must Batson challenges be resolved before the jury is sworn? State v. Harris Explained

In State v. Harris, the Utah Supreme Court reinforced the strict timing requirements for Batson challenges, holding that defense counsel’s failure to demand immediate resolution before the jury was sworn constituted waiver, even when the trial court suggested delaying the matter.

Background and Facts

During jury selection in Harris’s assault trial, the prosecution used a peremptory strike to remove the only minority juror. Defense counsel raised a Batson challenge during sidebar, but when the court suggested putting the matter “on the record during the break,” counsel acquiesced with “Okay, I just wanted to inform [the court] of that.” The court then read the selected juror names, asked if counsel accepted the jury, and dismissed the remaining venire before addressing the Batson challenge during a subsequent recess.

Key Legal Issues

The central issue was whether Harris’s Batson challenge was timely preserved when defense counsel failed to press for immediate resolution before the jury was sworn and venire dismissed. Harris argued his challenge was properly raised and erroneously rejected, while also claiming ineffective assistance of counsel and seeking plain error review.

Court’s Analysis and Holding

The Court applied its precedent from State v. Rosa-Re, emphasizing that trial counsel has an “absolute obligation” to notify the court that resolution is needed before the jury is sworn and venire dismissed. The Court found that Harris waived his challenge by acquiescing to the court’s suggestion to delay and by affirmatively accepting the jury when asked. The Court rejected both the plain error and ineffective assistance arguments, noting that any alleged error was not obvious to the trial court and that the underlying Batson challenge lacked merit.

Practice Implications

This decision establishes an unforgiving standard for Batson challenge preservation. Defense counsel cannot rely on trial courts’ suggestions to delay resolution and must actively insist on immediate rulings. The Court’s concern about “sandbagging”—allowing counsel to wait and see if they like the jury outcome—reinforces that preservation requirements serve important efficiency and fairness interests in jury selection.