The standard for doing so isn’t high and requires the objecting party to present evidence sufficient to raise only an inference of discrimination rather than proof by a preponderance of the evidence that discrimination occurred. Valdez, 966 P.2d at 590; accord People v. Madrid, 2023 CO 12, ¶ 32, 526 P.3d 185, 193. [9, 10] ¶19 If the objecting party meets this standard, the burden shifts to the striking party to offer a race- or gender-neutral reason for the strike.
At this final step, the objecting party may present evidence or argument to rebut the striking party’s stated reason for excusing the prospective juror in question. People v. Madrid, 2023 CO 12, ¶ 34, 526 P.3d 185, 193. The trial court must then consider the "persuasiveness" of the striking party’s reason for the peremptory strike in light of any rebuttal offered.
[7, 8] ¶8 Under Batson, the opposing party must make a prima facie showing that the strike was made with a discriminatory purpose. See Johnson II, ¶ 18; People v. Madrid, 2023 CO 12, ¶ 32, 526 P.3d 185, 193. The striking party can then rebut the inference of discrimination by providing a facially race- or gender-neutral reason for the strike.
¶22 This court has long distinguished between questions of law, which we review de novo, and questions of fact, which trigger deference to the trial court's judgment. People v. Madrid, 2023 CO 12, ¶ 37, 526 P.3d 185, 194. We review de novo questions of law concerning the correct construction and application of CORA and the CCJRA.
Accordingly, the district court's error is structural and, in my opinion, entitles Clark to a new trial. See People v. Madrid, 2023 CO 12, ¶ 60, 526 P.3d 185, 198. Thus, I respectfully dissent.
See § 16-12-102(1), C.R.S. 2024; People v. Madrid, 2023 CO 12, ¶ 37.