State v. Harrison
In State v. Harrison, 805 P.2d 769, 775-76 (Utah Ct. App. 1991), the Utah Court of Appeals considered the timeliness of a Batson challenge raised immediately after the jury was sworn but before the venire was dismissed. 805 P.2d at 776.
Although the parties did not brief or argue the applicability of rule 18, the court determined sua sponte that rule 18(c)(2) governs the timeliness of a Batson objection in Utah. Id.
The relevant language of that rule, which has not changed since Harrison was decided, provides as follows:
"A challenge to an individual juror may be either peremptory or for cause. A challenge to an individual juror may be made only before the jury is sworn to try the action, except the court may, for good cause, permit it to be made after the juror is sworn but before any of the evidence is presented." Utah R. Crim. P. 18(c)(2).
Thus, in Harrison, the court of appeals held that a Batson challenge is timely under rule 18(c)(2) even when it is raised after the jury is sworn if the trial court finds good cause to permit it. 805 P.2d at 776.
The court of appeals also held that a trial court implicitly finds good cause under rule 18(c)(2) "by allowing counsel to proceed with their Batson arguments." Id.