People v. Beauvais ( 2017 )


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    5
    6                                                               ADVANCE SHEET HEADNOTE
    7                                                                            April 24, 2017
    8
    9                                             
    2017 CO 34
    0
    1   No. 14SC938, People v. Beauvais—Juries and Jury Selection—Peremptory
    2   Challenges—Batson Challenges.
    3
    4          The supreme court considers whether a trial court must make express findings about
    5   the credibility of a party’s reasons for exercising a peremptory challenge when the other
    6   party has challenged that strike under Batson v. Kentucky, 
    476 U.S. 79
     (1986). The supreme
    7   court also considers when two or more jurors are similarly situated for comparison under
    8   Batson such that the dismissal of one but not the other indicates impermissible
    9   discrimination. The supreme court holds that although express credibility findings
    0   significantly aid appellate review, they are not strictly necessary if the trial court’s ultimate
    1   Batson ruling is otherwise reviewable on the record. The supreme court also holds that
    2   appellate courts may rely on comparative juror analyses in reviewing Batson rulings, but
    3   only where the record facilitates comparison of the jurors in all respects that reportedly
    4   motivated the peremptory strike. The supreme court concludes that the record here
    5   supports the trial court’s Batson ruling and that the trial court did not clearly err in denying
    6   defendant’s Batson challenges. The supreme court reverses the judgment of the court of
    7   appeals in its entirety.
    1
    2
    3                       The Supreme Court of the State of Colorado
    4                         2 East 14th Avenue • Denver, Colorado 80203
    5                                          
    2017 CO 34
    6                            Supreme Court Case No. 14SC938
    7                          Certiorari to the Colorado Court of Appeals
    8                            Court of Appeals Case No. 13CA665
    9
    0                                          Petitioner:
    1                              The People of the State of Colorado,
    2                                               v.
    3                                         Respondent:
    4                                      Heather Beauvais.
    5
    6                                     Judgment Reversed
    7                                           en banc
    8                                         April 24, 2017
    9
    0
    1   Attorneys for Petitioner:
    2   Cynthia H. Coffman, Attorney General
    3   Kevin E. McReynolds, Assistant Attorney General
    4    Denver, Colorado
    5
    6   Attorney for Respondent:
    7   Michelle Lee Lazar
    8    Denver, Colorado
    9
    0   Attorneys for Amicus Curiae Colorado Criminal Defense Bar:
    1   Colorado Criminal Defense Bar and University of Colorado School of Law
    2   Margaret Ann England
    3   Scott Adam Moss
    4     Boulder, Colorado
    5
    6
    7
    8   JUSTICE BOATRIGHT delivered the Opinion of the Court.
    9   JUSTICE MÁRQUEZ dissents.
    ¶1       This case concerns the third step of the analysis laid out in Batson v. Kentucky,
    
    476 U.S. 79
     (1986), which requires trial courts to determine whether a party raising a Batson
    objection proved by a preponderance of the evidence that opposing counsel exercised a
    peremptory challenge to excuse a potential juror on the basis of race or gender.
    Specifically, we consider whether the court of appeals erred in its review of the trial court’s
    Batson ruling by: (1) remanding for specific credibility findings of the prosecution’s
    non-demeanor-based reasons for its peremptory challenges, (2) refusing to credit the
    prosecution’s demeanor-based reasons because the trial court did not expressly find them
    to be credible, and (3) conducting flawed comparative juror analyses.1
    ¶2       First, we hold that an appellate court conducting a clear error review should defer to
    a trial court’s ultimate Batson ruling so long as the record reflects that the trial court
    weighed all of the pertinent circumstances and it supports the court’s conclusion as to
    whether the objecting party proved purposeful discrimination by a preponderance of the
    1   We granted certiorari to review the following three issues:
    1. Whether the court of appeals erred in applying Batson v. Kentucky,
    
    476 U.S. 79
     (1986), by remanding for additional findings where the trial
    court did not make express rulings on the credibility of the prosecution’s
    proffered gender-neutral explanations for its peremptory challenges.
    2. Whether the court of appeals erred by holding that, under Snyder v.
    Louisiana, 
    552 U.S. 472
     (2008), a reviewing court cannot credit a
    demeanor-based explanation for a peremptory strike where the trial court
    did not expressly find the explanation to be credible.
    3. Whether the court of appeals erred by applying comparative juror analysis
    to jurors dismissed by the defense before the prosecution accepted the
    panel, by comparing traits that defense counsel did not challenge, and by
    focusing on specific traits instead of consideration of all proffered reasons
    for striking each juror.
    2
    evidence. Second, we hold that a trial court’s failure to make specific credibility findings
    about demeanor-based reasons does not—on its own—prevent a reviewing court from
    concluding that the trial court credited those reasons. Third, we hold that appellate courts
    may conduct comparative juror analyses despite an objecting party’s failure to argue a
    comparison to the trial court, but only where the record facilitates a comparison of whether
    the jurors are similarly situated. An empaneled juror is similarly situated to a dismissed
    potential juror for the purposes of an appellate court’s comparative juror analysis if the
    empaneled juror shares the same characteristics for which the striking party dismissed the
    potential juror.
    ¶3     We conclude that the trial court here did not commit clear error in step three of its
    Batson analysis and that remand is unnecessary. We therefore reverse the judgment of the
    court of appeals.
    I. Facts and Procedural History
    ¶4     The People charged Heather Beauvais with extortion and three counts of stalking in
    connection with her repeated attempts to contact a man whom she met on the internet. The
    matter proceeded to a jury trial. To begin jury selection, the court seated twenty-five
    potential jurors in the jury box and placed the remainder of the venire in the back of the
    courtroom in the order that they would be called to replace jurors who were later excused.
    During jury selection, potential jurors provided some basic information about their
    families, occupations, prior jury service, and connections to people working in law
    enforcement. The court informed the venire of applicable legal concepts, inquired about
    any hardships the jurors might suffer if selected to serve, and asked the jurors about their
    3
    willingness to take an oath to follow the law. The parties then conducted voir dire of the
    twenty-five jurors in the jury box. The parties agreed to excuse six potential jurors—three
    women and three men—for cause or hardship. As the court excused each person, the
    potential juror from the back of the courtroom who was next in order entered the jury box
    and assumed the excused juror’s seat. The trial court asked each of these replacements to
    answer the initial background questions and then allowed the parties to question them.
    ¶5     After both sides passed the jurors for cause, the trial court gave each side the
    opportunity to exercise its peremptory challenges.           Each party had six available
    peremptory challenges and, beginning with the prosecution, alternated as they excused
    jurors one by one.2 The parties could only use a peremptory challenge on the first thirteen
    jurors seated in the box. When a party excused a potential juror using a peremptory
    challenge from the first thirteen positions, the next potential juror in line from the
    remaining jurors would assume that juror’s number and seat. As a result, the parties knew
    who the replacement juror would be when they exercised a peremptory challenge. As the
    parties exercised each peremptory challenge, the court released the excused potential jurors
    from jury duty and allowed them to leave the courtroom.
    ¶6     The prosecution excused a total of five jurors, all of whom were women, while
    Beauvais excused six jurors, all of whom were men. The final jury consisted of nine male
    and three female jurors, with a female alternate juror. The record indicates that the last
    2 Because the final jury was to consist of twelve jurors and a thirteenth alternate juror, each
    side was allowed the typical five peremptory challenges plus an extra, sixth challenge to
    achieve the desired number of jurors.
    4
    potential juror in the jury box, who was not empaneled because the prosecution did not
    exercise its final peremptory challenge, was also female.
    ¶7     Beauvais objected under Batson after the prosecution’s third, fourth, and fifth uses of
    its peremptory challenges, arguing that the prosecution’s decision to excuse only women
    established a prima facie case of discrimination. The trial court deferred ruling on the
    objections until both sides finished using their peremptory challenges. At that point,
    Beauvais highlighted that, although thirteen of the thirty-one potential jurors in the initial
    venire were women, only four would serve on the jury because the court had excused three
    for cause or hardship, the prosecution had peremptorily excused five, and one was never
    empaneled because the prosecution had waived its final challenge. Finally, Beauvais also
    argued that none of the excused women had given responses that would indicate a
    pro-defendant bias, while some had even given responses traditionally considered
    favorable to the prosecution.
    ¶8     The prosecutor began his response by admitting that it had been some time since he
    had encountered Batson and that he had “never heard it [argued] in terms of gender.” He
    contended that, in any event, Beauvais had failed to make a prima facie showing of
    discrimination that would warrant a full Batson analysis because four women (including
    the alternate) remained on the jury.
    ¶9     The trial court disagreed. Recognizing that the prosecution had exercised all of its
    peremptory challenges to excuse women, the court found that Beauvais had established a
    prima facie case of discrimination and, proceeding to step two of Batson, required the
    5
    prosecution to provide gender-neutral reasons for its challenges.          In response, the
    prosecutor offered several reasons for each peremptory challenge:
    Juror [S.B.], looked disinterested[3] during the questioning. She offered no—
    she never raised her hand for any issue. Never nodded when another juror
    spoke and oftentimes was looking away from me during my questioning
    looking at her watch. She appeared to me to be young and had no kids.
    Juror [L.G.], during the period when we were waiting for the remainder of
    the jurors to come back[,] she was in the back of the courtroom and she was
    coughing heavily. I don’t know if she was sick. She never indicated on the
    record that she was sick. But that was the impression I got.
    Her husband is in the legal field. She has two daughters. One of which she
    said was stalked. I think it is inappropriate to have someone whose family
    member so closely alleged to have been a victim of the same crime that we’re
    charging here.
    Juror [K.G.], is in college. . . . Has no kids. Appeared to be young. And it
    sounds as though she had a relationship with a large amount of law
    enforcement officers from the community from which she came to Denver.
    Juror [A.B.], is also in college. Appeared to me to be young. Does not have
    any kids and did not expand on any of her comments when asked
    specifically about what we had spoken with [sic] prior to her getting on the
    panel. She seemed dead pan to me and gave no detailed explanations of why
    she was saying yes or no.
    Juror [J.T.], also currently in college. . . . She also appeared young.
    Appeared disinterested. Did not volunteer any answers to my questions,
    although I tried to make eye contact with her to engage her in conversation.
    She never raised her hand or volunteered any information.
    ¶10    The trial court then gave Beauvais an opportunity to respond to the prosecution’s
    reasons. Beauvais argued that many of the prosecution’s reasons were pretextual. As
    3 We assume from the context of the transcript that the prosecution used the term
    “disinterested” to mean lacking attention or care for the proceedings, i.e., apathetic, rather
    than lacking a personal motive or stake in the proceedings, i.e., unbiased. See
    Disinterested, Webster’s Third New International Dictionary (unabr. ed. 2002) (defining
    “disinterested” to include both of these meanings).
    6
    relevant here, Beauvais first asserted that four men on the jury did not have children, even
    though the prosecution partially based its challenges to three female potential jurors on this
    same trait. Second, as to the prosecution’s reason that four female jurors appeared young
    or were attending college, Beauvais argued that three male jurors who were slated to serve
    on the jury also appeared young and “college age.” Third, Beauvais stated that the
    prosecution “did not inquire as to [L.G.’s] health” and thus could not rely upon that reason
    for excusing her. Finally, Beauvais asserted that the prosecution’s decision to waive its last
    peremptory challenge showed purposeful discrimination because exercising that challenge
    would have replaced a male juror with a female one. Beauvais did not comment on the
    demeanor of any of the jurors or in any way build a record as to juror demeanor.
    ¶11    The trial court asked if the prosecution wished to respond to Beauvais’s arguments
    comparing certain male jurors to the dismissed female jurors. The prosecution noted that
    each of its peremptory challenges stemmed from the combination of several reasons, not
    just each reason individually: “When you look at each individual juror and the collection
    of reasons that each was stricken[,] that puts them in a different situation than any other
    particular juror on the panel.” The trial court indicated that it would begin the orientation
    process for the jury and then take a recess to consider Beauvais’s Batson challenge before
    making its step-three ruling.     Beauvais did not address the combination-of-factors
    argument the prosecution advanced, nor did she take a final opportunity to make a record
    about the excused jurors’ demeanor.
    ¶12    After the orientation and a recess, the trial court called the parties back into the
    courtroom and, outside the presence of the jury, issued its Batson ruling. “Ultimately,” it
    7
    stated, “if either side were systematically or intentionally or purposefully attempting to
    discriminate against jurors because of race or religion or gender[,] that would be
    unacceptable in this courtroom and I would take that very seriously.” Addressing the
    prosecution’s peremptory challenges specifically, the trial court noted that it seemed that
    all of the potential jurors could be impartial and that the prosecution’s reasons for
    exercising its challenges were “not strong.” However, the court emphasized that the
    factors for exercising peremptory challenges are “subtle,” making it difficult to rule on a
    Batson challenge and find purposeful discrimination. With these observations in mind, the
    trial court overruled Beauvais’s Batson objection, stating that while it had “concerns given
    the nature and the outcome and the circumstances,” Beauvais “h[ad] not established there
    was purposeful discrimination.”
    ¶13    The jury ultimately found Beauvais guilty of one count of felony stalking under
    section 18-3-602(1)(c), C.R.S. (2016), and not guilty of the other charges. Beauvais appealed,
    arguing that the trial court had erred in overruling her Batson objections.
    ¶14    The majority of a division of the court of appeals concluded that the record was
    insufficient to facilitate review and thus remanded the case to the trial court to make
    additional findings under step three of Batson. People v. Beauvais, 
    2014 COA 143
    , ¶¶ 3–9,
    __ P.3d __. Specifically, the majority stated that it could not determine whether it was clear
    error for the trial court to rely on the female potential jurors’ age, college attendance, or
    apparent sickness because, while these characteristics were “objectively verifiable and
    could potentially form the basis of a legitimate peremptory challenge,” the trial court had
    “made no findings regarding the potential jurors’ ages or health, and there is nothing in the
    8
    record to show whether the trial court believed that the prosecutor sought to excuse any of
    them because they were college students.” Id. at ¶ 19. Therefore, the court of appeals
    directed the trial court on remand to make specific credibility findings about these three
    justifications. Id. at ¶ 20.
    ¶15    The majority also concluded that the prosecution’s other gender-neutral reasons
    were incredible and raised an inference of purposeful discrimination. Id. at ¶¶ 11–20. In
    doing so, the majority explained that under Snyder v. Louisiana, 
    552 U.S. 472
     (2008), it
    could not “presume the trial court found [the prosecution’s demeanor-based reasons] to be
    credible”—and therefore could not credit them on appeal—because the trial court had not
    made express credibility findings for each of those reasons. 
    Id.
     at ¶ 18 (citing Snyder, 
    552 U.S. at 485
    ). Additionally, the majority stated that “[s]ome of the reasons the prosecutor
    offered for excusing female potential jurors . . . applied equally to many male potential
    jurors in the venire,” which suggested that the prosecutor’s reasons were pretextual. Id. at
    ¶ 12 (discussing male jurors who had prior experiences with stalking, who were childless,
    or who had friends in law enforcement).
    ¶16    In sum, the majority held that: (1) remand was necessary for the trial court to
    explicitly find whether the gender-neutral reasons of youth, college attendance, and
    apparent sickness were credible; (2) it could not infer that the trial court found the
    demeanor-based reasons credible given the lack of specific findings; and (3) the
    non-demeanor-based reasons that applied equally to male jurors were incredible and
    raised an inference of purposeful discrimination.
    9
    ¶17    The dissent disputed the majority’s conclusions regarding the necessity of remand
    and the inference of purposeful discrimination. Id. at ¶ 26 (Bernard, J., concurring in part,
    specially concurring in part, and dissenting in part). In the dissent’s view, the majority
    failed to accord the trial court proper deference when the majority first rejected many of the
    prosecution’s reasons for excusing the female potential jurors and then concluded the
    record was insufficient for lack of express credibility findings. Id. at ¶¶ 26, 34–35. The
    dissent acknowledged that the trial court could have made more specific findings to
    explain why it had found the prosecutor’s gender-neutral explanations credible. Id. at ¶ 40.
    However, the dissent reasoned that the trial court’s step-three analysis was sufficient
    because its “unambiguous finding means only one thing . . . in the context of this case: The
    trial court implicitly chose to believe the prosecutor, which was a choice that was
    ‘peculiarly within [its] province.’”    Id. at ¶¶ 40–44 (alteration in original) (quoting
    Hernandez v. New York, 
    500 U.S. 352
    , 365 (1991) (plurality opinion)). For the dissent, it
    was “obvious that the trial court took this issue seriously,” id. at ¶ 37, and that the trial
    court drew upon its personal observations of the process in making “the call that it thought
    was right,” id. at ¶ 48. The dissent concluded that the majority, and other appellate courts,
    “should not second-guess that call because we have not seen what the trial court saw, or
    heard what the trial court heard.” Id. at ¶¶ 46–48.
    ¶18    We granted certiorari and now reverse the court of appeals.
    II. Law
    ¶19    We begin our analysis by outlining Batson’s three-step analysis for determining
    whether a party’s use of peremptory challenges was motivated by purposeful
    10
    discrimination. We then discuss a trial court’s role in ruling on a Batson objection and the
    deference that a reviewing court owes to that ruling. Next, we address this trial court’s
    failure to make express credibility findings as to the prosecution’s non-demeanor-based
    reasons, the same failure as to the prosecution’s demeanor-based reasons, and the
    adequacy of the court of appeals’ comparative juror analysis. Ultimately, we conclude that
    the trial court here did not err in overruling Beauvais’s Batson objection and that remand is
    therefore unnecessary.
    A. The Three-Step Batson Framework
    ¶20    The Equal Protection Clause of the Fourteenth Amendment “forbids striking even a
    single prospective juror for a discriminatory purpose.” Foster v. Chatman, 
    136 S. Ct. 1737
    ,
    1747 (2016) (quoting Snyder, 
    552 U.S. at 478
    ). Accordingly, Batson and its progeny forbid
    parties in civil and criminal cases from exercising peremptory challenges to excuse
    potential jurors on the basis of race or gender. Batson, 
    476 U.S. at 89
     (race); J.E.B. v.
    Alabama ex rel. T.B., 
    511 U.S. 127
    , 129 (1994) (gender).
    ¶21    In Batson, the U.S. Supreme Court laid out a three-step analysis for trial courts to use
    in determining whether the striking party excused a potential juror on a discriminatory
    basis. Foster, 136 S. Ct. at 1747. First, the objecting party must make a prima facie showing
    that the striking party exercised a peremptory challenge on the basis of race or gender. Id.
    Second, if the objecting party makes out a prima facie case, then the striking party must
    offer a non-discriminatory reason for striking each potential juror in question. Id. Finally,
    “in light of the parties’ submissions, the trial court must determine whether the [objecting
    party] has shown purposeful discrimination” by a preponderance of the evidence. Id.
    11
    (quoting Snyder, 
    552 U.S. at
    476–77); accord Madison v. Comm'r, Ala. Dep't of Corr., 
    761 F.3d 1240
    , 1250 (11th Cir. 2014), cert. denied sub nom Madison v. Thomas, 
    135 S. Ct. 1562
    (2015) (specifying the preponderance of the evidence standard) (citing Johnson v.
    California, 
    545 U.S. 162
    , 170 (2005)). The trial court’s finding at step three as to whether the
    objecting party has shown purposeful discrimination is a “determination[] of credibility
    and demeanor” that lies “peculiarly within a trial judge’s province.” Snyder, 
    552 U.S. at 477
     (quoting Hernandez, 
    500 U.S. at 365
    ). Only the third step of the analysis is at issue
    here.
    B. Standard of Review
    ¶22     “[A] trial court’s step-three determination as to the existence of [purposeful]
    discrimination is an issue of fact to which an appellate court should defer . . . .” People v.
    Rodriguez, 
    2015 CO 55
    , ¶ 13, 
    351 P.3d 423
    , 429. We set aside a trial court’s factual findings
    only when they are so clearly erroneous as to find no support in the record. Downey v.
    People, 
    25 P.3d 1200
    , 1206 (Colo. 2001). A clear error review of a Batson ruling must
    examine all circumstances bearing upon whether intentional discrimination motivated the
    challenges. Foster, 136 S. Ct. at 1748. Given this deferential standard, reversal is only
    proper under “exceptional circumstances.” Snyder, 
    552 U.S. at 477
     (quoting Hernandez,
    
    500 U.S. at 366
    ).
    C. Step Three of Batson
    ¶23     The trial court’s task at step three of a Batson analysis is to determine whether the
    objecting party proved that the striking party exercised peremptory challenges with a
    discriminatory animus. Rodriguez, ¶ 12, 351 P.3d at 429. One important tool that courts
    12
    use to make this determination is an assessment of the striking party’s credibility and the
    plausibility of its non-discriminatory explanations. Id. This credibility evaluation is
    challenging because the exercise of peremptory challenges is often a matter of instinct, and
    even articulating the reason for a challenge can be difficult. Miller-El v. Dretke, 
    545 U.S. 231
    , 252 (2005); see also J.E.B., 
    511 U.S. at 148
     (O’Connor, J., concurring) (“Indeed, often a
    reason for [striking a juror] cannot be stated, for a trial lawyer’s judgments about a juror’s
    sympathies are sometimes based on experienced hunches and educated guesses . . . .”).
    Thus, a trial court must consider “all of the circumstances that bear upon the issue of”
    purposeful discrimination. Snyder, 
    552 U.S. at 478
    ; accord People v. Cerrone, 
    854 P.2d 178
    ,
    191 (Colo. 1993).    These circumstances include, among others, the striking party’s
    demeanor, the plausibility of the explanations, and “whether the proffered rationale has
    some basis in accepted trial strategy.” Miller-El v. Cockrell, 
    537 U.S. 322
    , 339 (2003).
    Indeed, “the best evidence [of discriminatory intent] often will be the demeanor of the
    attorney who exercises the challenge.” Snyder, 
    552 U.S. at 477
     (alterations in original)
    (quoting Hernandez, 
    500 U.S. at 365
    ).
    ¶24    “Though the trial court must evaluate all relevant facts, ‘the ultimate burden of
    persuasion regarding [discriminatory] motivation rests with, and never shifts from, the
    [objecting party].’” People v. Wilson, 2015 CO 54M, ¶ 14, 
    351 P.3d 1126
    , 1132 (quoting
    Purkett v. Elem, 
    514 U.S. 765
    , 768 (1995) (per curiam)). Hence, a trial court should sustain a
    Batson objection only if the objecting party proves by a preponderance of the evidence that
    the striking party’s non-discriminatory reasons are sufficiently incredible that the
    “‘discriminatory hypothesis’ better fits the evidence.” Id.; accord Elem, 
    514 U.S. at
    768
    13
    (“[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts
    for purposeful discrimination.”).
    ¶25    As we explained above, this determination “lies peculiarly within a trial judge’s
    province.” Cockrell, 
    537 U.S. at 339
     (quoting Hernandez, 
    500 U.S. at 365
    ); accord Wilson,
    ¶¶ 13–14, 351 P.3d at 1131–32. The trial court is in the best position to evaluate the striking
    party’s demeanor and the credibility of its justifications because the “trial judge is the
    judicial officer who watches and listens as voir dire unfolds, and who can discern the
    presence or absence of discriminatory intent.” Wilson, ¶ 23, 351 P.3d at 1134 (quoting
    Valdez, 966 P.2d at 599 (Kourlis, J., dissenting)); accord Rodriguez, ¶ 18, 351 P.3d at 430–31.
    The trial judge is also in the best position to evaluate a potential juror’s demeanor—and
    that of the striking party—when parties predicate peremptory strikes on the potential
    juror’s demeanor. See Snyder, 
    552 U.S. at 479
    . It is for these reasons that appellate courts
    afford trial courts great deference and will only reverse under “exceptional circumstances.”
    
    Id. at 477
     (quoting Hernandez, 
    500 U.S. at 366
    ).
    III. Analysis and Application
    ¶26    The People contend that the court of appeals erred in three ways: (1) by remanding
    for specific credibility findings on some of the prosecution’s non-demeanor-based reasons
    for its peremptory challenges, (2) by refusing to credit the prosecution’s demeanor-based
    reasons because the trial court did not expressly find them credible, and (3) by conducting
    a flawed comparative juror analysis. We address each of these contentions in turn.
    14
    A. Express Credibility Findings on Non-Demeanor-Based Reasons
    ¶27    The People assert that the court of appeals erred when it remanded the case and
    ordered the trial court to make express credibility findings as to the prosecution’s claim
    that it excused several female potential jurors in part because they were young, childless, in
    college, or apparently sick. The People assert that express credibility findings as to each of
    the striking party’s non-demeanor reasons are not necessary to satisfy step three of Batson.
    Rather, according to the People, a trial court’s ultimate decision to overrule a Batson
    objection can, under certain circumstances, be taken as an implicit crediting of the
    prosecution’s reasons and thus survive clear error review. We agree.
    ¶28    In framing this issue, we emphasize that the purpose of the Batson analysis is to
    determine whether the party making the Batson objection has proven by a preponderance
    of the evidence that the striking party excused jurors with discriminatory intent. Assessing
    the striking party’s credibility is an important component of that determination, but it is
    not the ultimate inquiry. Rather, the trial court’s obligation at step three is to determine
    whether the objecting party met its burden of proof under Batson, and it is this
    determination that we review for clear error.
    ¶29    While express credibility findings significantly aid effective appellate review, the
    U.S. Supreme Court does not require them for a trial court’s step-three determination. See,
    e.g., Thaler v. Haynes, 
    559 U.S. 43
    , 48 (2010) (per curiam) (reversing the Fifth Circuit Court
    of Appeals’ broad characterization of Snyder as creating an express credibility finding
    requirement); Cockrell, 
    537 U.S. at 347
     (“We adhere to the proposition that a state court
    need not make detailed findings addressing all the evidence before it.”). Though the
    15
    Cockrell and Snyder Courts ultimately held that the respective trial courts had clearly
    erred, they did so on narrow, fact-specific grounds. Cockrell, 
    537 U.S. at 347
     (holding that
    it was clear error to fail to consider or discuss grounds asserted in the objection); Snyder,
    
    552 U.S. at
    479–85 (holding that there was clear error where the record plainly refuted one
    basis for the challenge and the other basis was not subject to an express credibility finding
    and not credible on review).
    ¶30    Lower courts have followed suit and declined to require express credibility findings.
    A majority of the federal courts of appeals have affirmed Batson rulings on appeal where
    the trial courts failed to make express credibility findings.4 Our court of appeals has also
    repeatedly held that step-three rulings based on implicit credibility determinations can
    survive clear error review.5
    4See United States v. Thompson, 
    735 F.3d 291
    , 301 (5th Cir. 2013); United States v. Moore,
    
    651 F.3d 30
    , 41–42 (D.C. Cir. 2011), aff’d in part on other grounds sub nom. Smith v. United
    States, 
    133 S. Ct. 714
     (2013); Smulls v. Roper, 
    535 F.3d 853
    , 860–61 (8th Cir. 2008) (en banc);
    Messiah v. Duncan, 
    435 F.3d 186
    , 198 (2d Cir. 2006); Hightower v. Terry, 
    459 F.3d 1067
    ,
    1072 n.9 (11th Cir. 2006); United States v. Castorena-Jaime, 
    285 F.3d 916
    , 929 (10th Cir.
    2002); Evans v. Smith, 
    220 F.3d 306
    , 314 (4th Cir. 2000); United States v. Perez, 
    35 F.3d 632
    ,
    636 (1st Cir. 1994). But see United States v. McAllister, 
    693 F.3d 572
    , 581 (6th Cir. 2012);
    Riley v. Taylor, 
    277 F.3d 261
    , 286–87 (3d Cir. 2001) (en banc).
    The Seventh and Ninth Circuits arguably harbor internal splits on this issue.
    Compare Murray v. Schriro, 
    745 F.3d 984
    , 1007 (9th Cir. 2014), and United States v. Corley,
    
    519 F.3d 716
    , 723 (7th Cir. 2008), with Green v. LaMarque, 
    532 F.3d 1028
    , 1031 (9th Cir.
    2008), and United States v. Rutledge, 
    648 F.3d 555
    , 558–61 (7th Cir. 2011). But see Morgan
    v. City of Chicago, 
    822 F.3d 317
    , 330 (7th Cir. 2016) (explaining that the different results in
    Corley and Rutledge stemmed from the fact that their analyses were “tailored to the record
    before [the court]”).
    5 See People v. DeGreat, 
    2015 COA 101
    , ¶¶ 36–37, __ P.3d __, cert. granted on other
    grounds, No. 15SC754 (Colo. Aug. 1, 2016); People v. Phillips, 
    2012 COA 176
    , ¶ 168, 
    315 P.3d 136
    , 171; People v. O’Shaughnessy, 
    275 P.3d 687
    , 691, 695 (Colo. App. 2010), aff’d. on
    other grounds sub nom. O'Shaughnessy v. People, 
    2012 CO 9
    , ¶ 1, 
    269 P.3d 1233
    , 1234;
    People v. Robinson, 
    187 P.3d 1166
    , 1174 (Colo. App. 2008).
    16
    ¶31      The reasoning underlying these cases is largely driven by the highly deferential
    standard of review that appellate courts apply in evaluating step-three determinations.
    The Court has long recognized that trial courts are uniquely positioned to judge the
    credibility and demeanor of both the challenged jurors and the challenging attorneys when
    making a Batson ruling. Snyder, 
    552 U.S. at 477
     (quoting Hernandez, 
    500 U.S. at 365
    ). As
    with any other finding of fact, a highly deferential standard of review precludes an
    appellate court from substituting its reading of a cold record for the trial court’s
    in-the-moment and better-informed determination. Cf., e.g., Gebhardt v. Gebhardt, 
    595 P.2d 1048
    , 1050 (“It is axiomatic that an appellate court cannot substitute itself as a finder of
    fact . . . .”).
    ¶32      In Batson step-three rulings, the determination that trial courts must make is
    whether the objecting party proved by a preponderance of the evidence that discriminatory
    animus drove the striking party’s use of peremptory challenges. Whether the challenging
    party has met its burden of proof is a finding of fact that must find support in the record to
    survive clear error review. Thus, while a trial court must consider all of the evidence
    bearing upon the plausibility of a non-discriminatory reason and the possibility of
    discriminatory animus, see Snyder, 
    552 U.S. at 478
    , it need not make express findings about
    that evidence and how it contributes to the court’s ultimate ruling, see Wilson, ¶ 23, 351
    P.3d at 1134 (“Having observed the prosecutor’s demeanor firsthand, the trial court
    concluded that she stated ‘an appropriate basis’ for excusing [the potential juror]. The
    court thus implicitly found that the prosecutor was credible and that her race-neutral
    explanation for excusing [the potential juror] was sincere.” (Emphasis added.)). Declining
    17
    to credit any Batson ruling unsupported by express credibility findings would ignore the
    central inquiry under a clear error review: whether that ruling is without support in the
    record. Consequently, we hold that an appellate court conducting a clear error review
    should defer to a trial court’s ultimate Batson ruling so long as the record reflects that the
    trial court weighed all of the pertinent circumstances and supports the court’s conclusion
    as to whether the objecting party proved purposeful discrimination by a preponderance of
    the evidence.
    ¶33    Applying these principles, we conclude that the trial court’s step-three analysis here
    was adequate because the court properly conducted a Batson analysis and issued a Batson
    ruling that could be reviewed on the record.6 Except for L.G.’s illness, the prosecution’s
    non-demeanor-based reasons—that the potential jurors appeared young, were in college,
    or had no children—find support in the voir dire record independently from the
    prosecution’s invocation of these reasons.7 Notably, the trial court never found that the
    6 Though our holding today demonstrates that they are not strictly necessary, we strongly
    urge trial courts to make explicit factual findings as to the credibility of the striking party’s
    non-discriminatory reasons to aid appellate review. Cf., e.g., Castorena-Jaime, 
    285 F.3d at 929
     (“Although we affirm the district court’s ruling, we encourage district courts to make
    explicit factual findings on the record when ruling on Batson challenges.”); DeGreat, ¶ 37
    (“Such findings improve the appellate record and permit more meaningful review.”);
    O’Shaughnessy, 
    275 P.3d at 695
    .              Express findings that the striking party’s
    non-discriminatory reasons are (or are not) credible eliminate the need and temptation for
    appellate courts to embark on their own doomed efforts to make credibility determinations
    from a cold record. See Perez, 
    35 F.3d at 636
    .
    7 The trial court asked an initial battery of questions to elicit background information from
    each juror before allowing the parties to conduct voir dire. The court’s questions asked
    jurors to provide their name; education; current occupation; marital status; place of birth;
    whether they had children; any connections with law enforcement; and whether they had
    previously served on a jury, and if so, for what sort of case. Beauvais also conceded that
    the challenged female potential jurors appeared to be young.
    18
    non-demeanor reasons were pretextual or that the prosecutor’s demeanor was less than
    credible. It did state that the prosecution’s reasons were “not strong” and that it was
    concerned about the “nature and the outcome of the circumstances,” but it expressly noted
    that the burden of proof was on Beauvais and that she had failed to meet it.
    ¶34    The attention that the trial court paid to conducting a proper analysis before
    ultimately overruling Beauvais’s Batson objection indicates that it considered all of the
    relevant circumstances and concluded that Beauvais did not establish that the prosecution’s
    proffer of these gender-neutral reasons was purposefully discriminatory. Thus, the trial
    court’s failure to specifically discuss the credibility of each of the prosecution’s
    gender-neutral reasons individually does not render its ruling clearly erroneous or require
    remand for further findings.
    ¶35    Having determined that the trial court‘s failure to make express findings as to the
    prosecution’s gender-neutral reasons of age, lack of children, college attendance, and
    apparent sickness does not render its ultimate step-three finding clearly erroneous, we now
    address the same question with regard to demeanor-based reasons.
    B. Express Credibility Findings on Demeanor-Based Reasons
    ¶36    The People argue that the court of appeals erred in holding that, under Snyder, an
    appellate court cannot credit a demeanor-based reason where the trial court did not
    expressly find the reason to be credible. They assert that an appellate court can presume
    that the trial court credited the prosecutor’s demeanor-based reasons where the defendant
    did not dispute those reasons. We do not adopt the People’s reasoning, but we agree that
    the court of appeals erred in its application of Snyder because the trial court’s obligation at
    19
    step three is the same regardless of whether the striking party offers non-demeanor or
    demeanor-based reasons. We therefore hold that a trial court’s failure to make specific
    credibility findings about demeanor-based reasons does not—on its own—prevent a
    reviewing court from concluding that the trial court credited those reasons.
    ¶37    Consistent with our holding that a step-three ruling can survive clear error review
    without express credibility findings, we conclude that the trial court’s proper application of
    the Batson analysis yielded a step-three ruling, supported by the record, that the defendant
    had not met her burden in proving that purposeful discrimination had motivated the
    prosecutor’s peremptory strikes here. We begin our analysis with an examination of
    Snyder.
    ¶38    In Snyder, the defense raised Batson objections to the prosecution’s peremptory
    challenges of two black potential jurors. Snyder, 
    552 U.S. at 477
    . The prosecution gave two
    race-neutral reasons for striking one of the potential jurors: (1) that he “looked very
    nervous,” and (2) that he was a student teacher with teaching obligations that might
    incentivize him to vote for a lesser verdict in order to avoid a lengthy penalty phase. 
    Id. at 478
    . The trial court ruled in step three of its Batson analysis that it was “going [to] allow
    the [peremptory] challenge” without identifying whether it credited either or both of the
    prosecution’s step-two reasons. 
    Id. at 479
    .
    ¶39    The U.S. Supreme Court ultimately held that the trial court had committed clear
    error in its step-three ruling. 
    Id.
     at 484–86. The Court expressed concern that the challenge
    and ruling as to the demeanor-based reason occurred the day after the juror exhibited the
    alleged demeanor, and that the trial court never expressly found this demeanor-based
    20
    reason to be credible. 
    Id. at 479
    . The Court also concluded that the non-demeanor reason
    was pretextual because the record plainly refuted it. 
    Id.
     at 480–83, 485. This posture
    presented the Court with the “exceptional circumstances” that merit reversal even under a
    deferential clear error review. See 
    id. at 474, 477
    . The tenuous credibility of the step-three
    ruling as to the demeanor-based reason, coupled with the possibility that the trial court
    might have based its ruling entirely on the pretextual non-demeanor-based reason, meant
    that the Court could not simply “presume that the trial judge credited the prosecutor’s
    assertion that [the juror] was nervous.” 
    Id. at 485
    . With no other basis in the record to
    which the Court could defer, it reversed the trial court. 
    Id.
     at 485–86.
    ¶40    The Court has since clarified that Snyder did not announce a broad rule requiring
    express credibility findings but was instead the result of “the particular circumstances of
    [that] case.”   Haynes, 559 U.S. at 48–49.         The Haynes Court emphasized that the
    prosecution’s step-two reasons in Snyder were either pretextual or incredible for reasons
    unique to those facts. Id. Some courts have ignored this admonition and inferred a more
    sweeping rule that would preclude appellate courts from crediting any Batson ruling
    predicated on demeanor-based reasons that were not also the subject of express credibility
    findings. See, e.g., United States v. McMath, 
    559 F.3d 657
    , 665–67 (7th Cir. 2009). But a
    majority of courts applying Snyder have adopted a more narrow reading of the case in line
    with the Haynes Court’s clarification. See e.g., United States v. Thompson, 
    735 F.3d 291
    ,
    300–01 (5th Cir. 2013); United States v. Moore, 
    651 F.3d 30
    , 42 (D.C. Cir. 2011), aff’d in part
    on other grounds sub nom. Smith v. United States, 
    133 S. Ct. 714
     (2013); Smulls v. Roper,
    
    535 F.3d 853
    , 860–61 (8th Cir. 2008) (en banc); see also People v. DeGreat, 
    2015 COA 101
    ,
    21
    ¶¶ 35–37, __ P.3d __, cert. granted on other grounds, No. 15SC754 (Colo. Aug. 1, 2016);
    People v. O’Shaughnessy, 
    275 P.3d 687
    , 691 (Colo. App. 2010).
    ¶41    We agree with the courts that confine Snyder to its facts. Snyder exemplifies a
    record on which the trial court’s Batson ruling was not plausible and constituted clear
    error. Cf. Anderson v. City of Bessemer City, 
    470 U.S. 564
    , 573–74 (1985) (discussing clear
    error). This narrow reading of Snyder reconciles its analysis and holding with the highly
    deferential clear error standard of review and avoids inconsistency between how our lower
    courts treat demeanor-based and non-demeanor-based reasons. It also recognizes the
    practical consideration that the trial court may not—and need not—have observed the
    complained-of demeanor. Haynes, 559 U.S. at 48. We therefore hold that a trial court’s
    failure to make specific credibility findings about demeanor-based reasons does not—on its
    own—prevent a reviewing court from concluding that the trial court credited those
    reasons.
    ¶42    In so holding, we reject the People’s argument that Snyder requires trial courts to
    make express credibility findings as to demeanor-based challenges only where the
    objecting party specifically disputes the demeanor-based reason. As discussed above, the
    Snyder Court’s conclusion that it could not presume that the trial court credited the
    demeanor-based reason was based on several factors unrelated to whether the objecting
    party disputed that reason. We see no basis, in Snyder or otherwise, to adopt the People’s
    rule. The central inquiry in reviewing a Batson ruling remains whether that ruling is
    supported in the record. See, e.g., Snyder, 
    552 U.S. at 477
    ; Rodriguez, ¶ 13, 351 P.3d at 429.
    22
    Thus, while an objecting party’s decision to dispute (or not dispute) a demeanor-based
    reason may factor into the clear error analysis, it is not, by itself, dispositive.
    ¶43    Here, the court of appeals majority analogized the proceedings below to those in
    Snyder, explaining that several of the prosecutor’s non-demeanor-based reasons were
    refuted by the record and had not been subject to credibility findings. Beauvais, ¶ 18. The
    majority concluded that it could not presume that the trial court credited either the
    demeanor-based reasons or the otherwise credible non-demeanor-based reasons given the
    lack of credibility findings. Id. Because the trial court was not required to make express
    credibility findings as to the demeanor-based reasons, we conclude that the trial court did
    not clearly err regardless of whether it credited the prosecution’s demeanor-based reasons.
    ¶44    As we explained above, the trial court’s careful Batson analysis indicates that it
    accounted for all of the prosecution’s step-two reasons in concluding that Beauvais had
    failed to prove by a preponderance of the evidence that these reasons were pretextual. It is
    true that the trial court did not expressly find the demeanor-based reasons to be credible.
    But neither did Beauvais rebut these reasons or otherwise build a record on juror
    demeanor.8 Significantly, the trial court did not indicate that it thought the prosecution
    was being disingenuous in offering these reasons, and there is nothing in the record to
    otherwise refute the prosecution’s assessment of the challenged jurors’ demeanor.
    Therefore, we conclude in this case that the trial court did not clearly err in rendering its
    8 To the limited extent that the complained-of demeanor—lack of engagement during voir
    dire—appears in the record, the evidence supports the prosecution’s assertions that these
    potential jurors responded concisely to its questions and did not otherwise volunteer
    information.
    23
    Batson ruling without also making express credibility findings as to the demeanor-based
    reasons.
    C. Comparative Juror Analysis
    ¶45    Finally, we examine whether the court of appeals erred in its comparative juror
    analysis by: (1) comparing potential jurors on a trait—unwillingness to participate or
    volunteer answers—that Beauvais did not argue to the trial court, and (2) comparing
    specific traits rather than considering all proffered reasons for striking each juror.9 We
    conclude that the court of appeals erred.
    ¶46    Ultimately, the purpose of the Batson analysis is to detect whether a party has
    violated the Fourteenth Amendment’s guarantee of equal protection by excusing a juror on
    the basis of race or gender. To accomplish this task, a trial court must determine at step
    three whether the objecting party has established by a preponderance of the evidence that
    the striking party engaged in purposeful discrimination in exercising its peremptory
    challenges.   A proper comparison of two jurors is one tool that can aid in that
    determination: If a striking party’s stated reasons for striking a female potential juror apply
    equally to an otherwise-similar male potential juror who ultimately serves on the jury, then
    “that is evidence tending to prove purposeful discrimination.” See Dretke, 
    545 U.S. at 241
    .
    9The People also petitioned this court to review the court of appeals’ decision to use in its
    comparative juror analysis certain male potential jurors whom the defense excused before
    the prosecutor accepted the panel. See Beauvais, ¶¶ 12, 14, 18 (discussing L.G. and two
    excused male potential jurors, all of whom had experiences with stalking in the past).
    Beauvais concedes that the court of appeals erred when it included the excused male
    potential jurors in its comparative juror analysis. Hence, in the absence of any controversy,
    we do not address this issue.
    24
    ¶47    Comparing jurors, however, must be done carefully. A retrospective comparison of
    jurors based on a cold appellate record is inherently limited and prone to error. See, e.g.,
    Snyder, 
    552 U.S. at 483
    ; Davis v. Ayala, 
    135 S. Ct. 2187
    , 2201 (2015).
    ¶48    We examine the court of appeals’ comparative juror analysis in this case to decide
    first whether a comparison not argued to the trial court may properly be the subject of a
    comparative juror analysis on review, and second, whether single-trait comparisons are
    adequate. We hold that appellate courts may conduct comparative juror analyses despite
    an objecting party’s failure to argue a comparison to the trial court, but only where the
    record facilitates a comparison of whether the jurors are similarly situated. An empaneled
    juror is similarly situated to a dismissed potential juror for the purposes of an appellate
    court’s comparative juror analysis if the empaneled juror shares the same characteristics for
    which the striking party dismissed the potential juror.
    1. Unargued Juror Comparisons
    ¶49    At trial, the prosecution’s step-two reasons for striking several potential jurors (S.B.,
    K.G., and J.T.) included the assertion that these specific jurors were not sufficiently engaged
    during voir dire. The defense did not challenge these grounds or conduct a comparative
    juror analysis. As a result, there is nothing in the record regarding those potential jurors’
    level of engagement beyond the prosecution’s assertions. The court of appeals nevertheless
    conducted a comparative juror analysis on juror engagement, concluding that “several
    males on the panel” also did not show a willingness to participate in jury selection or
    volunteer answers and that this raised an inference of purposeful discrimination. See
    25
    Beauvais, ¶¶ 12, 18. The People assert that it is per se erroneous to conduct a comparative
    juror analysis with regard to traits compared for the first time on appeal.
    ¶50    We initially note that this question is not one of issue preservation; both the voir dire
    record and the Batson objection were properly before the courts below. See Dretke, 
    545 U.S. at
    241 n.2. But while Beauvais preserved her Batson objection, she failed to argue or
    make a record on juror engagement. Such a failure results in a record that is unlikely to
    support that argument on review. Consequently, an appellate court’s review of a cold
    record can be especially “misleading when alleged similarities were not raised at trial.”
    Snyder, 
    552 U.S. at 483
    . Because appellate courts can only access information that the
    parties develop for the record, a comparison unargued is also one that goes untested and
    unsupported. See 
    id.
     At the very least, an objecting party’s failure to raise an alleged
    similarity to the trial court suggests that it is not a useful comparison.
    ¶51    For these reasons, this court has previously declined to conduct a comparative juror
    analysis when the objecting party failed to argue the comparison to the trial court. Valdez,
    966 P.2d at 594 (“It was incumbent on the defense counsel to raise this argument to the trial
    court. If it was not apparent to the defense counsel that Mr. D was similarly situated to Mr.
    P, it is unreasonable to expect that the trial court should have noted the comparison on its
    own.”). Today we clarify Valdez and address when juror comparisons can appropriately
    be considered for the first time on appeal.
    ¶52    Unargued juror comparisons can be appropriate tools for discovering discriminatory
    animus, but their use should be limited to instances in which the reviewing court can make
    an informed comparison. Appellate courts can only make an informed comparison—i.e.,
    26
    accurately and reliably compare jurors on unargued traits—where the record is otherwise
    developed as to the material circumstances bearing on whether they are similarly situated.
    Ensuring that a reviewable record exists will often require an objecting party’s deliberate
    effort, especially where the compared trait is subjective or demeanor based (rudeness,
    apathy, inattentiveness) rather than objectively verifiable (age, employment, marital
    status). We do not intend to overburden trial courts with a duty to build an exhaustive
    record during voir dire. But without a record that facilitates a complete and meaningful
    comparison, appellate courts have no basis to review and reverse Batson rulings based on
    unargued comparisons.       Consequently, we hold that appellate courts may conduct
    comparative juror analyses despite an objecting party’s failure to argue a comparison to the
    trial court, but only where the record facilitates a comparison of whether the jurors are
    similarly situated.
    ¶53    Applying this rule here, we conclude that the court of appeals’ comparative juror
    analysis as to juror engagement during voir dire is improper on this underdeveloped
    record. As we concluded above, the trial court’s decision to overrule Beauvais’s Batson
    objections as to S.B., K.G., and J.T. implicitly credited the prosecution’s assertion that these
    jurors “looked disinterested,” “seemed deadpan,” or did not adequately answer questions
    or volunteer information during voir dire. To the extent that these venire members spoke,
    the voir dire transcript demonstrates that S.B., K.G., and J.T. spoke infrequently and
    concisely. Nothing in the record, however, describes the same jurors’ facial expressions,
    gestures, or body language. As a result, the record does not rebut the prosecution’s
    assertions that it dismissed these venire members in part for lack of engagement.
    27
    Additionally, and in large part because Beauvais failed to raise these demeanor-based
    comparisons to the trial court, the record is silent as to any male juror who was similarly
    situated to S.B., K.G., or J.T. in lack of engagement and who, despite being indifferent to the
    proceedings, was nevertheless empaneled. Absent a developed record, we cannot compare
    the challenged jurors to empaneled jurors in this material respect and cannot therefore
    conclude that the trial court clearly erred.
    2. Single-Trait Comparisons
    ¶54    The People also contend that the court of appeals erred in comparing jurors with
    regard to individual traits rather than comparing them in all material circumstances that
    bear on whether two jurors are similarly situated. We agree.
    ¶55    Beauvais argued at trial that seven unexcused male jurors were similarly situated to
    several female potential jurors—S.B., K.G., A.B., and J.T.—whom the prosecution did
    excuse because they were young, had no children, or both. The trial court made no express
    credibility findings in this regard, but its ultimate ruling against Beauvais rejected this
    argument. The court of appeals reversed, concluding that because the record reflected that
    each of the excused female potential jurors shared at least one of these characteristics with
    an unchallenged male potential juror, their dismissal could be the result of gender
    discrimination. Beauvais, ¶¶ 18–20.
    ¶56    This sort of comparison minimizes the deference due under a clear error review.
    Two potential jurors need not be identical in every respect for them to be similarly situated
    and for the comparison to give rise to an inference of pretext. See Dretke, 
    545 U.S. at
    247
    n.6 (“A per se rule that a defendant cannot win a Batson claim unless there is an exactly
    28
    identical white juror would leave Batson inoperable; potential jurors are not products of a
    set of cookie cutters.”).    But the inverse is also true: Isolated similarities do not
    automatically render two jurors “similarly situated” for purposes of deciding a Batson
    challenge. Trial courts, unrestrained by a deferential standard of review and informed by
    their first-hand observations of the venire and the parties, are positioned to credit or ignore
    individual reasons in conducting comparisons; appellate courts are not.
    ¶57    We therefore hold that an empaneled juror is similarly situated to a dismissed
    potential juror for the purposes of an appellate court’s comparative juror analysis if the
    empaneled juror shares the same characteristics for which the striking party dismissed the
    potential juror. For example, if an attorney strikes a female potential juror because she is
    unemployed and lacks a college degree, a male potential juror who is either unemployed or
    lacks a college degree would not be similarly situated and not suitable for comparison.
    Conversely, a male potential juror who is both unemployed and lacks a college degree
    would be similarly situated to the excused female potential juror, and if the striking party
    did not strike him as well, this would be “evidence tending to prove purposeful
    discrimination.” It is even more important to compare jurors with regard to all traits listed
    as reasons for striking the challenged juror where, as here, the striking party credits the
    combination of these traits as the reason for excusing that juror. A party exercising
    peremptory challenges is free to do so for any non-discriminatory reason or combination of
    non-discriminatory reasons that furthers its litigation strategy. Elem, 
    514 U.S. at
    767–68;
    Batson, 
    476 U.S. at 89
    . A court cannot substitute its own litigation strategy for that of the
    striking party. To avoid doing so, courts should tailor comparative juror analyses to the
    29
    striking party’s reasons for striking a challenged juror. Applying this standard to the
    present case reveals dispositive differences between the challenged female potential jurors
    and the male empaneled jurors.
    ¶58    First, in addition to being young and childless, female potential jurors K.G., A.B.,
    and J.T. were all attending college at the time of voir dire. Current college attendance was
    another gender-neutral characteristic that the prosecution gave as a step-two reason for
    dismissing these potential jurors. None of the allegedly comparable male potential jurors
    was attending college at the time of voir dire.
    ¶59    Second, the prosecution excused female potential juror L.G. because she was
    “coughing heavily.” The record does not reflect that any other potential juror exhibited
    similar symptoms. Additionally, the prosecution challenged L.G. because her spouse was
    in the legal field and one of her children had been a victim of stalking, a combination of
    characteristics unique in the jury pool.
    ¶60    Finally, the prosecution excused S.B., A.B., and J.T. not only because they were
    young or lacked children, but also because they were disengaged during voir dire.10 As
    discussed above, Beauvais failed to argue or make a record on juror engagement at trial.
    Without a developed record, we cannot meaningfully compare S.B., A.B., and J.T. to the
    male jurors in this regard. Hence, we conclude that the court of appeals erred in doing so.
    10 The prosecution specifically alleged that: (1) S.B. “looked disinterested,” “never nodded,”
    and “oftentimes was looking away from me during my questioning [or] looking at her
    watch”; (2) A.B. “seemed deadpan”; and (3) J.T. “appeared disinterested” and did not
    volunteer information or answers despite the prosecution’s effort to “make eye contact
    with her.”
    30
    ¶61    In sum, the record shows that the challenged female potential jurors exhibited
    unique combinations of traits that materially distinguished them from the empaneled male
    jurors. This supports the trial court’s rejection of these juror comparisons, a finding to
    which we owe deference. Thus, we conclude that the trial court did not clearly err when it
    implicitly rejected Beauvais’s comparisons in determining that Beauvais had not proved
    purposeful discrimination.
    IV. Conclusion
    ¶62    We take a final opportunity to reiterate that a trial court’s obligation at step three of
    a Batson analysis is to make a determination as to whether the objecting party proved by a
    preponderance of the evidence that the striking party exercised a peremptory challenge on
    a discriminatory basis. It is this finding of fact that we are called to review here. The tools
    we discussed above—credibility determinations and comparative juror analyses—are
    simply that, tools. They are not the required end product of a step-three ruling, but rather
    two means to achieve that end. The trial court here made a difficult finding on a close
    record; had it found in Beauvais’s favor, we no doubt would have affirmed that decision as
    well. It did not.
    ¶63    First, we hold that an appellate court conducting a clear error review should defer to
    a trial court’s ultimate Batson ruling so long as the record reflects that the trial court
    weighed all of the pertinent circumstances and supports the court’s conclusion as to
    whether the objecting party proved purposeful discrimination by a preponderance of the
    evidence. Second, we hold that a trial court’s failure to make specific credibility findings
    about demeanor-based reasons does not—on its own—prevent a reviewing court from
    31
    determining that the trial court credited those reasons. Finally, we hold that appellate
    courts may conduct comparative juror analyses despite an objecting party’s failure to argue
    a comparison to the trial court, but only where the record facilitates a comparison of
    whether the jurors are similarly situated. An empaneled juror is similarly situated to a
    dismissed potential juror for the purposes of an appellate court’s comparative juror
    analysis if the empaneled juror shares the same characteristics for which the striking party
    dismissed the potential juror.
    ¶64    Accordingly, we reverse the judgment of the court of appeals.
    JUSTICE MÁRQUEZ dissents.
    32
    JUSTICE MÁRQUEZ, dissenting.
    ¶65    I respectfully dissent. Without question, trial courts have “a pivotal role in
    evaluating Batson claims.” Snyder v. Louisiana, 
    552 U.S. 472
    , 477 (2008). Because they
    work on the front lines of our legal system, trial judges “see and hear things that we on the
    appellate courts cannot see or hear,” including facial expressions, tone of voice, body
    language, and other behavior relevant to making credibility determinations. People v.
    Beauvais, 
    2014 COA 143
    , ¶¶ 46–47, __ P.3d __ (Bernard, J., concurring in part, specially
    concurring in part, and dissenting in part). For this reason, deference to a trial court is
    “especially appropriate where a trial judge has made a finding that an attorney credibly
    relied on [a juror’s] demeanor in exercising a [peremptory] strike.” Snyder, 
    552 U.S. at 479
    .
    ¶66    But deference to a trial court’s actual findings regarding a prosecutor’s credibility or
    a potential juror’s demeanor is very different from the deference the majority now gives a
    trial court’s “ultimate Batson ruling.” Maj. op. ¶ 2. The majority purports to give such
    deference only where “the record reflects that the trial court weighed all of the pertinent
    circumstances.” 
    Id.
     Yet it simultaneously absolves trial courts of any obligation to make
    findings or otherwise lay an adequate record for appellate review. See id. at ¶¶ 32, 42. This
    tension in the majority’s approach renders appellate review a hollow exercise: How can a
    reviewing court meaningfully determine whether a trial court “weighed all of the pertinent
    circumstances” if the trial court need not make any findings at all? I fully respect the
    deference we must give to trial courts’ assessments of credibility and demeanor, but where
    the trial court makes no findings regarding any of several proffered reasons for exercising a
    peremptory strike, there is nothing on the record to which a reviewing court can properly
    1
    defer. To reflexively uphold a trial court’s Batson ruling under such circumstances is not
    the kind of justifiable deference owed to a trial court’s assessment of credibility or
    demeanor—rather, it becomes an abdication of our responsibility as appellate courts.
    Today’s ruling, I fear, will only further erode Batson’s protections. See Michael J. Raphael
    & Edward J. Ungvarsky, Excuses, Excuses: Neutral Explanations under Batson v. Kentucky,
    
    27 U. Mich. J.L. Reform 229
    , 267 (1993) (“We believe that our empirical analysis shows that
    the courts now lean far too heavily towards accepting prosecutors’ rationalizations for their
    peremptory challenges and demanding few limitations on prosecutors’ discretion to use
    strikes, notwithstanding Batson’s inference of discrimination.”); Jeffrey Bellin & Junichi P.
    Semitsu, Widening Batson’s Net to Ensnare more than the Unapologetically Bigoted or
    Painfully Unimaginative Attorney, 
    96 Cornell L. Rev. 1075
    , 1106 (2011) (“Batson, as
    currently applied, is unable to prevent the use of race in jury selection because its dictates
    are so easily avoided.”).
    ¶67    The majority’s approach also contravenes recent United States Supreme Court
    precedent. The trial court’s role in step three of the Batson analysis is to weigh the
    arguments of counsel and determine whether the strike proponent’s proffered explanation
    should be believed. A conclusory ruling with no findings does not satisfy this obligation.
    The Supreme Court plainly required more in Snyder, 
    552 U.S. at
    485–86. It also required
    more in Foster v. Chatman, 
    136 S. Ct. 1737
    , 1743 (2016). And this court should require more
    here, because the existing record simply does not support the trial court’s ruling.
    ¶68    Notably, the majority does not explain how this record establishes that the trial court
    in fact “weighed all of the pertinent circumstances.” The prosecutor’s consistent pattern of
    2
    strikes in this case is troubling, particularly given that several of the reasons given for
    removing female jurors also applied to male jurors who were allowed to remain on the
    panel. Although the trial court could have simply credited one or more of the prosecutor’s
    explanations, it didn’t actually do that. To the contrary, the court expressed nothing but
    skepticism of those explanations. Beyond that, the court’s only comments focused on
    considerations that are irrelevant to a Batson analysis, namely, the likelihood of a mistrial if
    the court found a Batson violation (with accompanying speedy trial implications); the fact
    that the remaining jurors appeared to be impartial; and the fact that the prosecution fell
    short of removing all of the women on the panel. In short, nothing in the record before us
    reflects that the trial court actually weighed any of the pertinent circumstances.
    Accordingly, deference to the trial court’s ultimate Batson ruling is not warranted here.
    Rather, because the proper remedy for an inadequate Batson analysis is to remand to the
    trial court with directions to “make the required factual findings,” People v. Rodriguez,
    
    2015 CO 55
    , ¶ 21, 
    351 P.3d 423
    , 431, I would remand this case for the trial court to do just
    that.
    I. The United States Supreme Court’s Batson Jurisprudence
    ¶69     The Equal Protection Clause of the Fourteenth Amendment forbids an attorney from
    using a peremptory strike to remove a juror because of the juror’s race. Batson v.
    Kentucky, 
    476 U.S. 79
    , 84 (1986). Equal protection also forbids striking a juror based on the
    juror’s gender. J.E.B. v. Alabama, 
    511 U.S. 127
    , 129, 146 (1994). Purposeful discrimination
    in jury selection harms both litigants and the individual jurors who are wrongfully
    excluded, and diminishes the public’s confidence in the fairness of judicial proceedings. 
    Id.
    3
    at 140; Batson, 
    476 U.S. at 87
    . For these reasons, “[t]he Constitution forbids striking even a
    single prospective juror for a discriminatory purpose.” Foster, 136 S. Ct. at 1747 (quoting
    Snyder, 
    552 U.S. at 478
    ).
    ¶70    While the present case was pending before this court, the United States Supreme
    Court announced its decision in Foster v. Chatman, reversing the denial of a capital
    defendant’s Batson challenge after the prosecution used peremptory strikes to remove all of
    the black potential jurors from the panel. 136 S. Ct. at 1743, 1755. Foster reaffirms the
    essential role of appellate courts in preventing purposeful discrimination in jury selection
    in a line of cases including Snyder, 
    552 U.S. at 478
    , Miller-El v. Dretke, 
    545 U.S. 231
    , 239
    (2005), and Batson, 
    476 U.S. at 96
    , and confirms several of Batson’s central precepts relevant
    to the resolution of this case.
    ¶71    First, Foster confirms that both trial and appellate courts must consider “all of the
    circumstances” that inform whether a Batson violation has occurred. This requires a
    “sensitive inquiry into such circumstantial evidence as may be available.” Foster, 136 S. Ct.
    at 1748 (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 
    429 U.S. 252
    , 266 (1977)).
    ¶72    In Foster, the Supreme Court had the benefit on habeas review of new information
    that the trial court did not have when it made its Batson ruling. After exhausting his direct
    appeal, Foster initiated state habeas corpus proceedings, during which he obtained the
    prosecution’s file for his case. 
    Id.
     at 1743–44. These documents included the jury venire list
    with the names of black prospective jurors highlighted in green and marked with the letter
    “B”; handwritten notes on black prospective jurors identifying them as “B#1,” “B#2,” and
    4
    “B#3”; and a list, titled “definite NO’s [sic],” which included the names of all five qualified
    black prospective jurors. Id. at 1744.
    ¶73     Although this evidence was not before the trial court when it made its Batson ruling,
    the Court nevertheless reviewed these documents in considering the prosecution’s
    explanations to the trial court for exercising its peremptory challenges. Id. at 1748, 1749–50,
    1753. The Court’s consideration of this new evidence confirms that reviewing courts must
    consider “all of the circumstantial evidence” when reviewing a Batson challenge. Id. at
    1754.
    ¶74     Second, Foster reminds us that a reviewing court cannot credit an explanation for
    exercising a peremptory strike if that explanation is refuted by the record. For example,
    one prosecutor in Foster told the trial court that he struck a black juror because defense
    counsel did not question that juror about her opinions on the issues of insanity, alcohol,
    and the publicity surrounding the case—but trial transcripts showed that defense counsel
    asked the juror several questions about each of these topics. Id. at 1750. And although the
    prosecutor claimed that he struck another juror because defense counsel failed to ask him
    his thoughts about the age of the defendant, insanity, and pretrial publicity, the transcripts
    also refuted this assertion. Id. at 1754. Because the record directly contradicted these
    proffered explanations, the Supreme Court refused to credit them. Id. at 1750.
    ¶75     Third, Foster affirms that comparative juror analysis is a useful tool to uncover
    purposeful discrimination: “As we explained in Miller-El v. Dretke, ‘[i]f a prosecutor’s
    proffered reason for striking a black panelist applies just as well to an otherwise-similar
    5
    nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful
    discrimination.’” Id. at 1754 (alterations in original) (quoting 545 U.S. at 241).
    ¶76    Notably, the majority holds today that a comparative juror analysis limits
    comparison to only the full combination of traits given as reasons for striking a juror. Maj.
    op. ¶ 57. In other words, the majority states, “if an attorney strikes a female potential juror
    because she is unemployed and lacks a college degree, a male potential juror who is either
    unemployed or lacks a college degree would not be similarly situated and not suitable for
    comparison.” Id. But the Supreme Court’s recent Batson analysis in Foster plainly rejects
    this approach. There, the Court compared the prosecutor’s justifications for striking black
    potential jurors with characteristics of white jurors whom the State accepted and concluded
    that the State’s proffered explanations were pretextual. Foster, 136 S. Ct. at 1750–52.
    Notably, in so doing, the Court compared jurors on the basis of single traits, even though
    the prosecution offered multiple reasons for striking particular jurors.
    ¶77    For example, the prosecution articulated a “laundry list” of eleven reasons for
    striking thirty-four-year-old black potential juror Marilyn Garrett, including because she
    was divorced and too young. Id. at 1748, 1750. In conducting its comparative juror
    analysis, the Court never suggested that to be similarly situated and suitable for
    comparison, a white juror must share the same combination of traits as the black juror who
    was removed. To the contrary, the court compared several white jurors who shared only a
    single trait with Garrett. For instance, the Court observed that the prosecution declined to
    strike three out of four prospective white jurors who, like Garrett, were divorced. Id. at
    1750. It then separately observed that the prosecution declined to strike eight white
    6
    prospective jurors under the age of thirty-six—including a twenty-one-year-old who served
    on the jury. Id. at 1750–51.
    ¶78    The Court’s comparative juror analysis for black potential juror Eddie Hood
    followed the same approach. The prosecution gave eight reasons for striking Hood,
    including because he had a son close in age to the defendant, and because his wife worked
    at a particular hospital that served people with mental illness. Id. at 1751, 1754. The Court
    did not suggest that to be comparable, a white juror must share all the traits the
    prosecution identified as reasons for striking Hood. To the contrary, it pointed out that the
    State accepted two white jurors who each had a son about the age of the defendant,
    including one who admitted in voir dire that Foster’s youth probably would be a factor she
    would consider during sentencing. Id. at 1752. Separately, it noted that the prosecution
    expressed no concerns about a white juror who had worked at the same hospital as Hood’s
    wife, and who ultimately served on the jury. Id. at 1754.
    ¶79    Reviewing this and other circumstantial evidence, the Court concluded that the
    prosecutors were motivated in substantial part by the race of the jurors when they struck
    Garrett and Hood from the panel, and therefore the prosecution’s strikes ran afoul of
    Batson. Id. By now requiring a comparable juror to share all the traits of a juror who was
    removed by a peremptory strike, the majority’s opinion will, as a practical matter, mean the
    end of meaningful comparative juror analysis. A party facing a Batson challenge need only
    be sure to recite two, or three (or eight, or eleven) reasons for striking a juror (like the
    prosecution in Foster did for jurors Hood and Garrett) to avoid comparisons that would
    expose those reasons as pretextual.
    7
    ¶80    The majority’s ruling today also misreads the Supreme Court’s opinion in Snyder.
    In that case, the prosecutor offered two race-neutral reasons for striking black potential
    juror Jeffrey Brooks. Snyder, 
    552 U.S. at 478
    . First, Brooks “looked very nervous” during
    voir dire. 
    Id.
     Second, he expressed concern that he would have to miss his student-
    teaching classes. 
    Id.
     With respect to the demeanor-based explanation, the Court noted that
    “deference is especially appropriate where a trial judge has made a finding that an attorney
    credibly relied on demeanor in exercising a strike.” 
    Id. at 479
    . Critically, however, the
    record in that case did not show that the trial judge “actually made a determination
    concerning Mr. Brooks’ demeanor.” 
    Id.
     Instead, the court simply allowed the peremptory
    challenge “without explanation.” 
    Id.
     Given the absence of any explanation from the trial
    court for its Batson ruling, the Court concluded, “we cannot presume that the trial judge
    credited the prosecutor’s assertion that Mr. Brooks was nervous.” 
    Id.
    ¶81    After refusing to credit the prosecutor’s demeanor-based explanation, the Court
    relied in part on comparative juror analysis to conclude that the prosecutor’s other
    proffered reason was pretextual. 
    Id.
     at 483–85. Because the prosecutor’s alternative
    explanation gave rise to an inference of discriminatory intent, and the record did not show
    that the prosecution would have challenged Brooks based on his nervousness alone, 
    id. at 485
    , the Court reversed and remanded, concluding that the trial court clearly erred in its
    Batson ruling. 
    Id. at 474
    , 485–86.
    ¶82    Importantly, the Snyder Court refused to credit the prosecutor’s demeanor-based
    explanation for striking potential juror Brooks because of the “absence of anything in the
    record showing that the trial judge credited the claim that Mr. Brooks was nervous.” 
    Id.
     at
    8
    479, 485. By contrast, the majority today holds that a trial court “need not make express
    findings” about the evidence bearing upon the plausibility of a proffered reason for
    striking a juror or “how [that evidence] contributes to the court’s ultimate ruling.”
    Maj. op. ¶ 32. I fail to understand how the majority’s approach squares with Snyder, at
    least where the prosecution offers a demeanor-based justification for striking a potential
    juror.
    ¶83      The majority’s reliance on Thaler v. Haynes, 
    559 U.S. 43
     (2010), is misplaced. Maj.
    op. ¶ 29. In that case, two different judges presided during jury selection—one during voir
    dire, and another when peremptory challenges were exercised. Thaler, 559 U.S. at 44. The
    Supreme Court rejected a blanket rule that a reviewing court must find clear error where
    the record shows the trial court was not able to verify the aspect of the prospective juror’s
    demeanor cited by the prosecution for its peremptory challenge. Id. at 46, 49. The Court
    reiterated that where an explanation is based on a prospective juror’s demeanor, the judge
    should take into account, among other things, any observations the judge was able to make
    of the juror during voir dire—but that a demeanor-based explanation need not be rejected
    just because the judge did not observe or cannot recall the juror’s demeanor. Id. at 48.
    Rather, the judge can still accept the prosecutor’s explanation based on the judge’s
    assessment of the prosecutor’s credibility and demeanor. Id. at 49. But nothing in Thaler
    absolves trial courts of the obligation to make findings or otherwise lay an adequate record
    for appellate review, as the majority holds today.11
    11The majority’s citation to People v. Wilson, 2015 CO 54M, 
    351 P.3d 1126
    , fares no better
    as support for today’s holding. Maj. op. ¶ 32. In that case, the trial court did make
    9
    II. Application
    ¶84    In the majority’s view, the trial court’s Batson ruling was adequate in this case
    because the court concluded that Beauvais had not met her burden of proof. Maj. op.
    ¶¶ 12, 34. Under this circular logic, a trial court’s ruling rejecting a Batson claim is
    adequate because the trial court rejected the Batson claim. The majority’s approach
    absolves the trial court of its critical obligation to articulate which of several proffered
    justifications are credible. Moreover, it essentially insulates the trial court’s ruling from
    any meaningful appellate review.
    ¶85    Certainly if the prosecution offers only a single reason for striking a juror and the
    trial court concludes that the defendant has failed to meet his burden under the Batson
    framework, an appellate court may logically presume that the trial court implicitly credited
    the prosecution’s single proffered justification. E.g., People v. O’Shaughnessy, 
    275 P.3d 687
    , 692 (Colo. App. 2010) (“[T]he only reason the prosecutor gave for striking Prospective
    Juror T was based on her demeanor. Thus, there is no question that the trial court’s
    acceptance of the prosecutor’s explanation is entitled to deference on review.”). That is not
    the case here, however, where the prosecution gave between three and five reasons for
    striking each of the female prospective jurors. On review, we cannot readily determine
    which, if any, of these justifications the trial court found credible.
    observations about the juror who was removed, noting that the juror “waffled back and
    forth” and “hesitated for an extended period” in voir dire. Wilson, ¶ 19, 
    351 P.3d at 1133
    .
    10
    ¶86    The record before us instead strongly suggests that the prosecution purposefully
    removed potential jurors from the venire because they were female.12 The prosecution
    used five of its six peremptory strikes to remove women. It also chose to waive its final
    peremptory challenge; had the prosecution used its sixth strike, another female would have
    been empaneled on the jury. A “pattern” of strikes against a class of jurors gives rise to an
    inference of discrimination. Batson, 
    476 U.S. at 97
    ; accord Rodriguez, ¶ 1, 
    351 P.3d at 428
    .
    ¶87    Defense counsel also argued that the nature of the charges against Beauvais made
    the case particularly susceptible to gender stereotypes. The alleged victim was a married
    man with young children who communicated with Beauvais over the internet, telling her
    that he wanted to cheat on his wife. When he called off the affair, Beauvais was charged
    with stalking and harassing him and his wife. Given these facts, the prosecution could
    have believed that male jurors would be more sympathetic to the male victim, or that
    female jurors might hold the victim’s indiscretions against him, damaging the
    prosecution’s chances for a conviction. Cf. J.E.B., 
    511 U.S. at 140
     (“The potential for
    cynicism [toward the jury’s neutrality and its obligation to follow the law] is particularly
    12 Purposeful discrimination in this context does not require that the prosecution harbor
    animus, i.e., ill will or animosity, toward women. See Purposeful, Black’s Law Dictionary
    (10th ed. 2014). Rather, a strike demonstrates purposeful discrimination where it is based
    on the juror’s gender or race as a proxy for the juror’s assumed bias—for example, striking
    males in a paternity action on the assumption that men might be more sympathetic to the
    alleged father of an out-of-wedlock child, while women might be more sympathetic to the
    mother. See J.E.B., 
    511 U.S. at
    137–38, 142, 143; Batson, 
    476 U.S. at 89
     (“Although a
    prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any
    reason at all . . . the Equal Protection Clause forbids the prosecutor to challenge potential
    jurors solely on account of their race or on the assumption that black jurors as a group will
    be unable impartially to consider the State’s case against a black defendant.”).
    11
    acute in cases where gender-related issues are prominent, such as cases involving rape,
    sexual harassment, or paternity.”).
    ¶88    Other circumstantial evidence supports the conclusion that the peremptory strikes
    were based on gender. First, although it has been settled law for over twenty years, the
    prosecutor apparently did not realize that Batson extends to gender-based strikes. The
    prosecutor commented, “It has been a long time since I read that Batson case. I only heard
    it argued in terms of race neutral causes for peremptory challenges. So I’ve never heard it
    in terms of gender.” The prosecutor also appeared to mistakenly believe that defense
    counsel could not establish a prima facie Batson violation as long as some members of the
    targeted group remained on the panel. When the defense raised a Batson objection after
    the prosecution used three peremptory challenges in a row to remove female jurors, the
    prosecutor responded, “There is still six women [sic] on the panel so I don’t think it goes to
    the second prong of Batson where I have to single out a race neutral reason or gender
    neutral reason in this case.” But the fact that women remained on the panel is irrelevant to
    whether a Baston violation has occurred; where even one strike is motivated by
    discriminatory purpose, equal protection is violated. Foster, 136 S. Ct. at 1747; Snyder, 
    552 U.S. at
    477–78.
    ¶89    Additionally, at Batson’s third step, “implausible” and “fantastic” justifications
    should be discounted by the trial court as pretexts for purposeful discrimination. Foster,
    136 S. Ct. at 1752–53; Purkett v. Elem, 
    514 U.S. 765
    , 768 (1995). Here, some of the
    prosecutor’s proffered gender-neutral reasons for striking the women, while reasonable on
    their face, crumble under closer scrutiny. See Foster, 136 S. Ct. at 1749 (“On their face, [the
    12
    prosecutor’s] justifications for the strike seem reasonable enough. Our independent
    examination of the record, however, reveals that much of the reasoning provided by [the
    prosecutor] has no grounding in fact.”).
    ¶90    For example, the prosecution told the court that it struck female potential juror K.G.
    because she appeared young, had no kids, and because she had relationships “with a large
    amount of law enforcement officers.”         In response to the last of these proffered
    justifications, defense counsel observed that as a matter of common sense, “the People
    rarely if ever challenge a juror because of their extensive connections to law enforcement.”
    And the record shows the prosecution lodged no objections to two male empaneled jurors
    who likewise had ties to law enforcement.
    ¶91    Another noteworthy example in this case is female potential juror S.B. The
    prosecutor told the court that he struck S.B. for three reasons: (1) she “looked disinterested
    during the questioning. . . . She never raised her hand for any issue. Never nodded when
    another juror spoke and oftentimes was looking away from me during my questioning
    looking at her watch”; (2) she appeared to be young; and (3) she had no children.
    Beginning, as the Supreme Court did in Snyder, with the demeanor-based reason for the
    strike, I observe that nothing in the record shows that the trial court ever credited the
    prosecution’s assertion that S.B. demonstrated a lack of interest in the proceedings. See 
    552 U.S. at 479
    . Where a neutral justification for a peremptory strike involves a juror’s
    demeanor, “the trial court’s firsthand observations [are] of even greater importance.” 
    Id. at 477
    . Because the trial court simply denied defense counsel’s Batson challenge without
    13
    findings and without explanation, “we cannot presume that the trial judge credited the
    prosecutor’s assertion” that S.B. was disinterested in the proceedings. 
    Id. at 479
    .
    ¶92    Moreover, the prosecutor’s two objectively verifiable reasons for striking both K.G.
    and S.B.—that they were young and had no children—appear pretextual. See Foster, 136 S.
    Ct. at 1754 (“If a prosecutor’s proffered reason for striking a black panelist applies just as
    well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence
    tending to prove purposeful discrimination.” (alteration in original) (quoting Dretke, 
    545 U.S. at 241
    )). Defense counsel pointed out that the People accepted three male jurors who
    also appeared young. And six male potential jurors represented that they were childless,
    yet they served on the jury.
    ¶93    It is also significant that the prosecution asked no questions at all of two of the
    female potential jurors removed from the panel. “The State’s failure to engage in any
    meaningful voir dire examination on a subject the State alleges it is concerned about is
    evidence suggesting that the explanation is a sham and a pretext for discrimination.”
    Dretke, 
    545 U.S. at 246
     (quoting Ex parte Travis, 
    776 So. 2d 874
    , 881 (Ala. 2000)).
    ¶94    All of this evidence—the pattern of strikes against five women, the prosecutor’s
    ignorance of the law, the implausible proffered neutral justifications, and the prosecution’s
    failure to question two of the jurors it struck—strongly suggests that the prosecution acted
    intentionally to remove the jurors because of their gender.
    ¶95    Despite the abundant circumstantial evidence of the prosecutor’s intent to remove
    women from the panel, the trial court held that defense counsel had not established
    purposeful discrimination. In my view, the trial court’s Batson analysis ultimately fell
    14
    short because the court appeared to misapprehend the purpose of the Batson challenge;
    was preoccupied with irrelevant concerns; and failed to make any findings crediting the
    prosecution’s proffered justifications. In fact, the findings that the court did make actually
    support Beauvais’ contention that the strikes were motivated by gender.
    ¶96    First, the trial court appeared to mistakenly believe that the prosecution could not
    violate Batson unless it removed all of the females from the jury. The court appeared to
    reason that the prosecution’s inability to remove all of the women from the jury reduced
    the likelihood of a Batson violation:
    So at a minimum we are having a third to a quarter of the jurors be women. I
    think an effort to try to remove all women from the jury when it is clear that
    cannot be done reduces the likelihood that the challenges were for gender-
    based reasons. It doesn’t eliminate it. It certainly keeps a jury at a minimal
    percentage in that regard arguably.
    (Emphasis added.) To prove a Batson violation, however, a challenger need not establish
    that a party removed all members of a targeted group. The Constitution forbids striking
    even a single juror because of gender or race. Foster, 136 S. Ct. at 1747; Snyder, 
    552 U.S. at
    477–78; accord Valdez v. People, 
    966 P.2d 587
    , 590 (Colo. 1998).
    ¶97    Next, after listening to the arguments of counsel, the trial court expressed concern
    about the speedy trial implications of sustaining the Batson objection:
    First and foremost, as a practical matter if I were to grant the challenge the
    result would be that we would dismiss this panel and likely reset a new trial
    date within speedy trial and begin again with a new panel. And I know that
    is something Ms. Beauvais is opposed to as a practical matter, nevertheless,
    she has a right to a fair jury trial.
    15
    To the extent that the trial court was concerned with the speedy trial implications of a
    Batson violation, such a concern is simply not relevant to whether any peremptory strike
    was impermissibly motivated by race or gender.
    ¶98    The trial court then turned to the merits of the parties’ positions. Remarkably, the
    only comment that the trial court made with respect to the prosecution’s explanations was
    to acknowledge their weakness, observing that “on the one hand I think the basis and
    reasons for the [prosecution’s peremptory] challenges are not strong,” and noting it had
    “concerns given the nature and the outcome and the circumstances.” The court never
    turned to the “other hand.” Instead, it observed, “I think we have a number of jurors who
    all likely could probably be unbiased and fair and impartial.” However, whether the jurors
    who have been seated are fair and impartial is irrelevant to the Batson analysis.
    ¶99    The trial court did not discuss any of the several reasons proffered for striking the
    individual women. Instead, it simply concluded, “I’m going to find at this point we have
    not established there was purposeful discrimination.”
    ¶100   At Batson’s third step, the court must evaluate the prosecutor’s credibility and
    decide whether a strike demonstrated purposeful discrimination; this decision “turns on
    factual determinations.” Foster, 136 S. Ct. at 1747 (citing Snyder, 
    552 U.S. at 477
    ). But
    crucially, the trial court made no factual determinations here. Besides the skepticism that
    the trial court expressed as to the prosecution’s proffered justifications, the court did not
    make a single finding relevant to the critical step three of the Batson determination. To the
    contrary, the record instead reflects the trial court’s concerns about the weakness of the
    16
    prosecution’s case, the pattern of strikes, and the prosecutor’s and the trial court’s apparent
    misunderstanding of what Batson requires.
    ¶101   I simply cannot agree that the record in this case shows that the trial court “weighed
    all of the pertinent circumstances.” Under these circumstances, I see no basis to defer to the
    trial court’s ultimate Batson ruling.
    III. Conclusion
    ¶102   Judges and academics have criticized the Batson framework as inadequate for the
    task, and it is not difficult to see why. See Bellin & Semitsu, supra, at 1114 n.212 (collecting
    articles). To sustain a Batson objection places a trial court judge in the unenviable position
    of finding that an attorney standing before the court both intentionally excluded someone
    from the jury based on race or gender, and offered the court a pretextual reason for doing
    so. Id. at 1113–15. Justice Thurgood Marshall described Batson’s greatest flaw as its
    implicit assumption that courts are capable of recognizing when a strike is exercised based
    on race, because, even assuming good faith on the part of all involved, Batson requires
    courts “to confront and overcome their own racism on all levels—a most difficult challenge
    to meet.” Wilkerson v. Texas, 
    493 U.S. 924
    , 928 (1989) (Marshall, J., dissenting from denial
    of certiorari); see also Batson, 
    476 U.S. at 106
     (Marshall, J., dissenting) (noting that “[a]
    prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion
    that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization that would not have
    come to his mind if a white juror had acted identically,” and that “[a] judge’s own
    conscious or unconscious racism can lead him to accept such an explanation as well
    supported.”). “This flaw has rendered Batson ineffective against all but the most obvious
    17
    examples of racial prejudice—the cases in which a proffered ‘neutral explanation’ plainly
    betrays an underlying impermissible purpose.” Wilkerson, 
    493 U.S. at 928
     (Marshall, J.,
    dissenting from denial of certiorari). Certainly, prosecutors’ peremptory strikes can be
    based on nothing more than instincts about how a juror may view a case. But as Justice
    Marshall reminds us, “‘seat-of-the-pants instincts’ may often be just another term for racial
    prejudice.” Batson, 
    476 U.S. at 106
     (Marshall, J., dissenting).
    ¶103   Given that trial courts are faced with a difficult task when evaluating a Batson
    challenge, the role of the appellate court in protecting the constitutional rights at stake
    becomes all the more critical. Appellate courts are uniquely positioned to counteract the
    implicit bias and unconscious discrimination that can operate to exclude minority members
    from meaningful participation in the justice system.        See Judge Mark W. Bennett,
    Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-
    Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. &
    Pol’y Rev. 149, 158 (2010). Reviewing courts must be willing to examine the record with a
    skeptical eye and reverse when necessary, so that members of the public are not excluded
    from jury service in violation of the Constitution.
    ¶104   Jury selection procedures that permit purposeful discrimination undermine public
    confidence in the fairness of the verdict. Georgia v. McCollum, 
    505 U.S. 42
    , 49 (1992). “The
    need for public confidence in our judicial process and the integrity of the criminal justice
    system is essential for preserving community peace.” People v. Cerrone, 
    854 P.2d 178
    , 196
    (Colo. 1993) (Scott, J., dissenting). It is therefore “of paramount importance that the
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    community believes we guarantee even-handed entry into our criminal justice system by
    way of the jury panel.” 
    Id.
    ¶105   The result of today’s decision, I fear, is that peremptory challenges will become
    “largely immune from constitutional scrutiny.” Batson, 
    476 U.S. at
    92–93. I respectfully
    dissent.
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