Salt Lake County v. Carlston
In Salt Lake County v. Carlston, 776 P.2d 653, 655 (Utah Ct. App. 1989) the court of appeals stated that a Batson challenge, like other objections, must be "timely presented to the trial court in a manner sufficient to obtain a ruling thereon."
In addressing timeliness standards, the court of appeals stated that a Batson challenge must be raised before the jury is sworn but also seemed to adopt a rule that a Batson challenge must be raised before the venire is dismissed. Id. at 655-56.
The court stated that "the Batson court envisioned a prompt motion to strike the jury panel, 'probably before the venire was dismissed.'" Id. at 656.
The court of appeals noted that this rule was based on "two justifications:"
(1) "preventing defendants from 'sandbagging' the prosecution by waiting until trial has concluded unsatisfactorily before insisting on an explanation for jury strikes;" and (2) remedying "prosecutorial misconduct prior to commencement of trial simply by seating the wrongfully struck venireperson." Id.
In Carlston, the Utah Court of Appeals correctly noted that "the process mandated by Batson . . . rests on the premise that the trial court will hear the objection and make a factual finding of whether the proponent has used peremptory challenges in a discriminatory manner." Carlston, 776 P.2d at 656.
The court noted that an untimely Batson objection impedes the ability of the trial judge to make a proper factual finding on the evidence presented and also deprives the proponent "of the opportunity to present evidence of any constitutionally permissible reasons for challenges to the venire members." Id.