This Article explores the ramifications of linguistically motivated peremptory challenges against multilingual prospective jurors in California in the twenty years since such challenges were legitimatized under Hernandez v. New York. An examination of state and federal case law reveals that the pretext analysis for reviewing Hernandez-based peremptory challenges remains both an arbitrary and a flawed tool that California courts have, nevertheless, been reluctant to second-guess. This problem is particularly acute in California because it is home to the largest multilingual population in the United States, with 43% of Californians speaking a language other than English. California, therefore, provides an exemplary context for a case study of these issues and its impact on multilingual prospective jurors. However, it is important to recognize that the issues raised by language-based peremptory challenges arise in many other jurisdictions, and potentially affect a large number of Americans throughout the country.
The Article discusses the manner in which Hernandez-based peremptory challenges, deference to lower court decisions allowing these challenges, and discriminatory and ineffective state laws are interdependent, mutually reinforcing, and combine to render multilingual individuals proportionately underrepresented in jury service. The Article suggests that this problem signals a need to develop and institute measures to protect multilinguals’ exercise of their right to jury participation. Among the recommendations offered are the embellishment and refinement of strategies available to parties objecting to linguistically based peremptory challenges. These changes would help make California’s framework for responding to Hernandez more concrete, more effective, and less discriminatory. The Article also proposes changes that the California legislature, judges, courts, and litigating parties can make to reduce Hernandez’s discriminatory impact and promote greater jury participation for multilinguals.