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Subject: 89-7645 -- OPINION, HERNANDEZ v. NEW YORK




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
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press.
SUPREME COURT OF THE UNITED STATES


No. 89-7645



DIONISIO HERNANDEZ, PETITIONER v. NEW YORK

on writ of certiorari to the court of appeals of new york

[May 28, 1991]



    Justice Kennedy announced the judgment of the Court and delivered an
opinion in which The Chief Justice, Justice White and Justice Souter join.

    Petitioner Dionisio Hernandez asks us to review the New York state
courts' rejection of his claim that the prosecutor in his criminal trial
exercised peremptory challenges to exclude Latinos from the jury by reason
of their ethnicity.  If true, the prosecutor's discriminatory use of
peremptory strikes would violate the Equal Protection Clause as interpreted
by our decision in Batson v. Kentucky, 476 U. S. 79 (1986).  We must
determine whether the prosecutor offered a raceneutral basis for
challenging Latino potential jurors and, if so, whether the state courts'
decision to accept the prosecutor's explanation should be sustained.
    Petitioner and respondent both use the term "Latino" in their briefs to
this Court.  Amicus briefs on both sides employ instead the term
"Hispanic," and the parties referred to the excluded jurors by that term in
the trial court.  Both words appear in the state court opinions.  No
attempt has been made at a distinction by the parties and we make no
attempt to distinguish the terms in this opinion.  We will refer to the
excluded venirepersons as Latinos in deference to the terminology preferred
by the parties before the Court.
I
    The case comes to us on direct review of petitioner's convictions on
two counts of attempted murder and two counts of criminal possession of a
weapon.  On a Brooklyn street, petitioner fired several shots at Charlene
Calloway and her mother, Ada Saline.  Calloway suffered three gunshot
wounds.  Petitioner missed Saline and instead hit two men in a nearby
restaurant.  The victims survived the incident.   The trial was held in the
New York Supreme Court, Kings County.  We concern ourselves here only with
the jury selection process and the proper application of Batson, which had
been handed down before the trial took place.  After 63 potential jurors
had been questioned and 9 had been empaneled, defense counsel objected that
the prosecutor had used four peremptory challenges to exclude Latino
potential jurors.  Two of the Latino venirepersons challenged by the
prosecutor had brothers who had been convicted of crimes, and the brother
of one of those potential jurors was being prosecuted by the same District
Attorney's office for a probation violation.  Petitioner does not press his
Batson claim with respect to those prospective jurors, and we concentrate
on the other two excluded individuals.
    After petitioner raised his Batson objection, the prosecutor did not
wait for a ruling on whether petitioner had established a prima facie case
of racial discrimination.  Instead, the prosecutor volunteered his reasons
for striking the jurors in question.  He explained:

    "Your honor, my reason for rejecting the -- these two jurors -- I'm not
certain as to whether they're Hispanics.  I didn't notice how many
Hispanics had been called to the panel, but my reason for rejecting these
two is I feel very uncertain that they would be able to listen and follow
the interpreter."  App. 3.


After an interruption by defense counsel, the prosecutor continued:

    "We talked to them for a long time; the Court talked to them, I talked
to them.  I believe that in their heart they will try to follow it, but I
felt there was a great deal of uncertainty as to whether they could accept
the interpreter as the final arbiter of what was said by each of the
witnesses, especially where there were going to be Spanish-speaking
witnesses, and I didn't feel, when I asked them whether or not they could
accept the interpreter's translation of it, I didn't feel that they could.
They each looked away from me and said with some hesitancy that they would
try, not that they could, but that they would try to follow the
interpreter, and I feel that in a case where the interpreter will be for
the main witnesses, they would have an undue impact upon the jury."  Id.,
at 3-4. {1}


Defense counsel moved for a mistrial "based on the conduct of the District
Attorney," and the prosecutor requested a chance to call a supervisor to
the courtroom before the judge's ruling.
    Following a recess, defense counsel renewed his motion, which the trial
court denied.  Discussion of the objection continued, however, and the
prosecutor explained that he would have no motive to exclude Latinos from
the jury:

"[T]his case, involves four complainants.  Each of the complainants is
Hispanic.  All my witnesses, that is, civilian witnesses, are going to be
Hispanic.  I have ab solutely no reason -- there's no reason for me to want
to exclude Hispanics because all the parties involved are Hispanic, and I
certainly would have no reason to do that."  Id., at 5-6. {2}


After further interchange among the judge and attorneys, the trial court
again rejected petitioner's claim.  Id., at 12.
    On appeal, the New York Supreme Court, Appellate Division, noted that
though the ethnicity of one challenged bilingual juror remained uncertain,
the prosecutor had challenged the only three prospective jurors with
definite Hispanic surnames.  The court ruled that this fact made out a
prima facie showing of discrimination.  The court affirmed the trial
court's rejection of petitioner's Batson claim, however, on the ground that
the prosecutor had offered race-neutral explanations for the peremptory
strikes sufficient to rebut petitioner's prima facie case.
    The New York Court of Appeals also affirmed the judgment, holding that
the prosecutor had offered a legitimate basis for challenging the
individuals in question and deferring to the factual findings of the lower
New York courts.  Two judges dissented, concluding that on this record,
analyzed in the light of standards they would adopt as a matter of state
constitutional law, the prosecutor's exclusion of the bilingual potential
jurors should not have been permitted.  We granted certiorari, 498 U. S.
--- (1990), and now affirm.
II
    In Batson, we outlined a three-step process for evaluating claims that
a prosecutor has used peremptory challenges in a manner violating the Equal
Protection Clause.  476 U. S., at 96-98.  The analysis set forth in Batson
permits prompt rulings on objections to peremptory challenges without
substantial disruption of the jury selection process.  First, the defendant
must make a prima facie showing that the prosecutor has exercised
peremptory challenges on the basis of race.  Id., at 96-97.  Second, if the
requisite showing has been made, the burden shifts to the prosecutor to
articulate a raceneutral explanation for striking the jurors in question.
Id., at 97-98.  Finally, the trial court must determine whether the
defendant has carried his burden of proving purposeful discrimination.
Id., at 98.  This three-step inquiry delimits our consideration of the
arguments raised by petitioner.

A
    The prosecutor defended his use of peremptory strikes without any
prompting or inquiry from the trial court.  As a result, the trial court
had no occasion to rule that petitioner had or had not made a prima facie
showing of intentional discrimination.  This departure from the normal
course of proceeding need not concern us.  We explained in the context of
employment discrimination litigation under Title VII of the Civil Rights
Act of 1964 that "[w]here the defendant has done everything that would be
required of him if the plaintiff had properly made out a prima facie case,
whether the plaintiff really did so is no longer relevant."  United States
Postal Service Bd. of Govs. v. Aikens, 460 U. S. 711, 715 (1983).  The same
principle applies under Batson.  Once a prosecutor has offered a
race-neutral explanation for the peremptory challenges and the trial court
has ruled on the ultimate question of intentional discrimination, the
preliminary issue of whether the defendant had made a prima facie showing
becomes moot.

B
    Petitioner contends that the reasons given by the prosecutor for
challenging the two bilingual jurors were not raceneutral.  In evaluating
the race-neutrality of an attorney's explanation, a court must determine
whether, assuming the proffered reasons for the peremptory challenges are
true, the challenges violate the Equal Protection Clause as a matter of
law.  A court addressing this issue must keep in mind the fundamental
principle that "official action will not be held unconstitutional solely
because it results in a racially disproportionate impact. . . .  Proof of
racially discriminatory intent or purpose is required to show a violation
of the Equal Protection Clause."  Arlington Heights v. Metropolitan Housing
Development Corp., 429 U. S. 252, 264-265 (1977); see also Washington v.
Davis, 426 U. S. 229, 239 (1976).  " `Discriminatory purpose' . . . implies
more than intent as volition or intent as awareness of consequences.  It
implies that the decisionmaker . . . selected . . . a particular course of
action at least in part `because of,' not merely `in spite of,' its adverse
effects upon an identifiable group."  Personnel Administrator of
Massachusetts v. Feeney, 442 U. S. 256, 279 (1979) (footnote and citation
omitted); see also McCleskey v. Kemp, 481 U. S. 279, 297-299 (1987).
    A neutral explanation in the context of our analysis here means an
explanation based on something other than the race of the juror.  At this
step of the inquiry, the issue is the facial validity of the prosecutor's
explanation.  Unless a discriminatory intent is inherent in the
prosecutor's explanation, the reason offered will be deemed race neutral.
    Petitioner argues that Spanish-language ability bears a close relation
to ethnicity, and that, as a consequence, it violates the Equal Protection
Clause to exercise a peremptory challenge on the ground that a Latino
potential juror speaks Spanish.  He points to the high correlation between
Spanishlanguage ability and ethnicity in New York, where the case was
tried.  We need not address that argument here, for the prosecutor did not
rely on language ability without more, but explained that the specific
responses and the demeanor of the two individuals during voir dire caused
him to doubt their ability to defer to the official translation of
Spanish-language testimony. {3}
    The prosecutor here offered a race-neutral basis for these peremptory
strikes.  As explained by the prosecutor, the challenges rested neither on
the intention to exclude Latino or bilingual jurors, nor on stereotypical
assumptions about Latinos or bilinguals.  The prosecutor's articulated
basis for these challenges divided potential jurors into two classes: those
whose conduct during voir dire would persuade him they might have
difficulty in accepting the translator's rendition of Spanish-language
testimony and those potential jurors who gave no such reason for doubt.
Each category would include both Latinos and non-Latinos.  While the
prosecutor's criterion might well result in the disproportionate removal of
prospective Latino jurors, that disproportionate impact does not turn the
prosecutor's actions into a per se violation of the Equal Protection
Clause.
    Petitioner contends that despite the prosecutor's focus on the
individual responses of these jurors, his reason for the peremptory strikes
has the effect of a pure, language-based reason because "[a]ny honest
bilingual juror would have answered the prosecutor in the exact same way."
Brief for Petitioner 14.  Petitioner asserts that a bilingual juror would
hesitate in answering questions like those asked by the judge and
prosecutor due to the difficulty of ignoring the actual Spanish-language
testimony.  In his view, no more can be expected than a commitment by a
prospective juror to try to follow the interpreter's translation.
    But even if we knew that a high percentage of bilingual jurors would
hesitate in answering questions like these and, as a consequence, would be
excluded under the prosecutor's criterion, that fact alone would not cause
the criterion to fail the race-neutrality test.  As will be discussed
below, disparate impact should be given appropriate weight in determining
whether the prosecutor acted with a forbidden intent, but it will not be
conclusive in the preliminary race-neutrality step of the Batson inquiry.
An argument relating to the impact of a classification does not alone show
its purpose.  See Personnel Administrator of Massachusetts v. Feeney, 442
U. S., at 279.  Equal protection analysis turns on the intended
consequences of government classifications.  Unless the government actor
adopted a criterion with the intent of causing the impact asserted, that
impact itself does not violate the principle of race-neutrality.  Nothing
in the prosecutor's explanation shows that he chose to exclude jurors who
hesitated in answering questions about following the interpreter because he
wanted to prevent bilingual Latinos from serving on the jury.
    If we deemed the prosecutor's reason for striking these jurors a racial
classification on its face, it would follow that a trial judge could not
excuse for cause a juror whose hesitation convinced the judge of the
juror's inability to accept the official translation of foreign-language
testimony.  If the explanation is not race-neutral for the prosecutor, it
is no more so for the trial judge.  While the reason offered by the
prosecutor for a peremptory strike need not rise to the level of a
challenge for cause, Batson, 476 U. S., at 97, the fact that it corresponds
to a valid for-cause challenge will demonstrate its race-neutral
character.

C
    Once the prosecutor offers a race-neutral basis for his exercise of
peremptory challenges, "[t]he trial court then [has] the duty to determine
if the defendant has established purposeful discrimination."  Batson, 476
U. S., at 98.  While the disproportionate impact on Latinos resulting from
the prosecutor's criterion for excluding these jurors does not answer the
race-neutrality inquiry, it does have relevance to the trial court's
decision on this question.  "[A]n invidious discriminatory purpose may
often be inferred from the totality of the relevant facts, including the
fact, if it is true, that the [classification] bears more heavily on one
race than another."  Washington v. Davis, 426 U. S., at 242.  If a
prosecutor articulates a basis for a peremptory challenge that results in
the disproportionate exclusion of members of a certain race, the trial
judge may consider that fact as evidence that the prosecutor's stated
reason constitutes a pretext for racial discrimination.
    In the context of this trial, the prosecutor's frank admission that his
ground for excusing these jurors related to their ability to speak and
understand Spanish raised a plausible, though not a necessary, inference
that language might be a pretext for what in fact were race-based
peremptory challenges.  This was not a case where by some rare coincidence
a juror happened to speak the same language as a key witness, in a
community where few others spoke that tongue.  If it were, the explanation
that the juror could have undue influence on jury deliberations might be
accepted without concern that a racial generalization had come into play.
But this trial took place in a community with a substantial Latino
population, and petitioner and other interested parties were members of
that ethnic group.  It would be common knowledge in the locality that a
significant percentage of the Latino population speaks fluent Spanish, and
that many consider it their preferred language, the one chosen for personal
communication, the one selected for speaking with the most precision and
power, the one used to define the self.
    The trial judge can consider these and other factors when deciding
whether a prosecutor intended to discriminate.  For example, though
petitioner did not suggest the alternative to the trial court here,
Spanish-speaking jurors could be permitted to advise the judge in a
discreet way of any concerns with the translation during the course of
trial.  A prosecutor's persistence in the desire to exclude
Spanish-speaking jurors despite this measure could be taken into account in
determining whether to accept a race-neutral explanation for the
challenge.
    The trial judge in this case chose to believe the prosecutor's
race-neutral explanation for striking the two jurors in question, rejecting
petitioner's assertion that the reasons were pretextual.  In Batson, we
explained that the trial court's decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort accorded
great deference on appeal:

    "In a recent Title VII sex discrimination case, we stated that `a
finding of intentional discrimination is a finding of fact' entitled to
appropriate deference by a reviewing court.  Anderson v. Bessemer City, 470
U. S. 564, 573 (1985).  Since the trial judge's findings in the context
under consideration here largely turn on evaluation of credibility, a
reviewing court ordinarily should give those findings great deference.
Id., at 575-576."  Batson, supra, at 98, n. 21.


Batson's treatment of intent to discriminate as a pure issue of fact,
subject to review under a deferential standard, accords with our treatment
of that issue in other equal protection cases.  See Hunter v. Underwood,
471 U. S. 222, 229 (1985) (Court of Appeals correctly found that District
Court committed clear error in concluding state constitutional provision
was not adopted out of racial animus); Rogers v. Lodge, 458 U. S. 613,
622-623 (1982) (clearly erroneous standard applies to review of finding
that at-large voting system was maintained for discriminatory purposes);
Dayton Board of Education v. Brinkman, 443 U. S. 526, 534 (1979) (affirming
Court of Appeals' conclusion that District Court's failure to find the
intentional operation of a dual school system was clearly erroneous); Akins
v. Texas, 325 U. S. 398, 401-402 (1945) (great respect accorded to findings
of state court in discriminatory jury selection case); see also Miller v.
Fenton, 474 U. S. 104, 113 (1985).  As Batson's citation to Anderson
suggests, it also corresponds with our treatment of the intent inquiry
under Title VII.  See Pullman-Standard v. Swint, 456 U. S. 273, 293
(1982).
    Deference to trial court findings on the issue of discriminatory intent
makes particular sense in this context because, as we noted in Batson, the
finding will "largely turn on evaluation of credibility."  476 U. S., at
98, n. 21.  In the typical peremptory challenge inquiry, the decisive
question will be whether counsel's race-neutral explanation for a
peremptory challenge should be believed.  There will seldom be much
evidence bearing on that issue, and the best evidence often will be the
demeanor of the attorney who exercises the challenge.  As with the state of
mind of a juror, evaluation of the prosecutor's state of mind based on
demeanor and credibility lies "peculiarly within a trial judge's province."
Wainwright v. Witt, 469 U. S. 412, 428 (1985), citing Patton v. Yount, 467
U. S. 1025, 1038 (1984).
    The precise formula used for review of fact findings, of course,
depends on the context.  Anderson was a federal civil case, and we there
explained that a federal appellate court reviews the finding of a district
court on the question of intent to discriminate under Federal Rule of Civil
Procedure 52(a), which permits factual findings to be set aside only if
clearly erroneous.  While no comparable rule exists for federal criminal
cases, we have held that the same standard should apply to review of
findings in criminal cases on issues other than guilt.  Maine v. Taylor,
477 U. S. 131, 145 (1986); Campbell v. United States, 373 U. S. 487, 493
(1963); 2 C. Wright, Federal Practice and Procedure MDRV 374 (2d ed. 1982
and Supp. 1990).  On federal habeas review of a state conviction, 28 U. S.
C. MDRV 2254(d) requires the federal courts to accord state court factual
findings a presumption of correctness.
    This case comes to us on direct review of the state court judgment.  No
statute or rule governs our review of facts found by state courts in cases
with this posture.  The reasons justifying a deferential standard of review
in other contexts, however, apply with equal force to our review of a state
trial court's findings of fact made in connection with a federal
constitutional claim.  Our cases have indicated that, in the absence of
exceptional circumstances, we would defer to state court factual findings,
even when those findings relate to a constitutional issue.  See 324 Liquor
Corp. v. Duffy, 479 U. S. 335, 351 (1987); California Liquor Dealers Assn.
v. Midcal Aluminum, Inc., 445 U. S. 97, 111-112 (1980); see also Time, Inc.
v. Firestone, 424 U. S. 448, 463 (1976); General Motors Corp. v.
Washington, 377 U. S. 436, 441-442 (1964) (quoting Norton Co. v. Department
of Revenue of Illinois, 340 U. S. 534, 537-538 (1951)); Bantam Books, Inc.
v. Sullivan, 372 U. S. 58, 68 (1963); Lloyd A. Fry Roofing Co. v. Wood, 344
U. S. 157, 160 (1952).  Moreover, "an issue does not lose its factual
character merely because its resolution is dispositive of the ultimate
constitutional question."  Miller v. Fenton, supra, at 113 (citing Dayton
Board of Education v. Brinkman, supra).
    Petitioner advocates "independent" appellate review of a trial court's
rejection of a Batson claim.  We have difficulty understanding the nature
of the review petitioner would have us conduct.  Petitioner explains that
"[i]ndependent review requires the appellate court to accept the findings
of historical fact and credibility of the lower court unless they are
clearly erroneous.  Then, based on these facts, the appellate court
independently determines whether there has been discrimination."  Reply
Brief for Petitioner 17.  But if an appellate court accepts a trial court's
finding that a prosecutor's race-neutral explanation for his peremptory
challenges should be believed, we fail to see how the appellate court
nevertheless could find discrimination.  The credibility of the
prosecutor's explanation goes to the heart of the equal protection
analysis, and once that has been settled, there seems nothing left to
review.
    Petitioner seeks support for his argument in Bose Corp. v. Consumers
Union of United States, Inc., 466 U. S. 485 (1984) and Miller v. Fenton,
supra.  Bose Corp. dealt with review of a trial court's finding of "actual
malice," a First Amendment precondition to liability in a defamation case,
holding that an appellate court "must exercise independent judgment and
determine whether the record establishes actual malice with convincing
clarity."  466 U. S., at 514.  Miller accorded similar treatment to a
finding that a confession was voluntary.  474 U. S., at 110.  Those cases
have no relevance to the matter before us.  They turn on the Court's
determination that findings of voluntariness or actual malice involve
legal, as well as factual, elements.  See Miller, supra, at 115-117; Bose
Corp., supra, at 501-502; see also Harte-Hanks Communications, Inc. v.
Connaughton, 491 U. S. 657, 685 (1989) ("The question whether the evidence
in the record in a defamation case is sufficient to support a finding of
actual malice is a question of law").  Whether a prosecutor intended to
discriminate on the basis of race in challenging potential jurors is, as
Batson recognized, a question of historical fact.
    Petitioner also looks to a line of this Court's decisions reviewing
state court challenges to jury selection procedures.  Many of these cases,
following Norris v. Alabama, 294 U. S. 587 (1935), have emphasized this
Court's duty to "analyze the facts in order that the appropriate
enforcement of the federal right may be assured," id., at 590, or to "make
independent inquiry and determination of the disputed facts," Pierre v.
Louisiana, 306 U. S. 354, 358 (1939).  See, e. g., Whitus v. Georgia, 385
U. S. 545, 550 (1967); Avery v. Georgia, 345 U. S. 559, 561 (1953); Patton
v. Mississippi, 332 U. S. 463, 466 (1947); Smith v. Texas, 311 U. S. 128,
130 (1940).  The review provided for in those cases, however, leaves room
for deference to state court factual determinations, in particular on
issues of credibility.  For instance, in Akins v. Texas, 325 U. S. 398
(1945), we said:

"[T]he transcript of the evidence presents certain inconsistencies and
conflicts of testimony in regard to limiting the number of Negroes on the
grand jury.  Therefore, the trier of fact who heard the witnesses in full
and observed their demeanor on the stand has a better opportunity than a
reviewing court to reach a correct conclusion as to the existence of that
type of discrimination.  While our duty, in reviewing a conviction upon a
complaint that the procedure through which it was obtained violates due
process and equal protection under the Fourteenth Amendment, calls for our
examination of evidence to determine for ourselves whether a federal
constitutional right has been denied, expressly or in substance and effect,
Norris v. Alabama, 294 U. S. 587, 589-90; Smith v. Texas, 311 U. S. 128,
130, we accord in that examination great respect to the conclusions of the
state judiciary, Pierre v. Louisiana, 306 U. S. 354, 358.  That respect
leads us to accept the conclusion of the trier on disputed issues `unless
it is so lacking in support in the evidence that to give it effect would
work that fundamental unfairness which is at war with due process,' Lisenba
v. California, 314 U. S. 219, 238, or equal protection.  Cf. Ashcraft v.
Tennessee, 322 U. S. 143, 152, 153; Malinski v. New York, 324 U. S. 401,
404."  Id., at 401-402.


Other cases in the Norris line also express our respect for factual
findings made by state courts.  See Whitus, supra, at 550; Pierre, supra,
at 358.
    In the case before us, we decline to overturn the state trial court's
finding on the issue of discriminatory intent unless convinced that its
determination was clearly erroneous.  It "would pervert the concept of
federalism," Bose Corp., supra, at 499, to conduct a more searching review
of findings made in state trial court than we conduct with respect to
federal district court findings.  As a general matter, we think the Norris
line of cases reconcilable with this clear error standard of review.  In
those cases, the evidence was such that a "reviewing court on the entire
evidence [would be] left with the definite and firm conviction that a
mistake ha[d] been committed."  United States v. United States Gypsum Co.,
333 U. S. 364, 395 (1948).  For instance, in Norris itself, uncontradicted
testimony showed that "no negro had served on any grand or petit jury in
[Jackson County, Alabama] within the memory of witnesses who had lived
there all their lives."  294 U. S., at 591; see also Avery v. Georgia,
supra, at 560-561; Patton v. Mississippi, supra, at 466; Smith v. Texas,
supra, at 131.  In circumstances such as those, a finding of no
discrimination was simply too incredible to be accepted by this Court.
    We discern no clear error in the state trial court's determination that
the prosecutor did not discriminate on the basis of the ethnicity of Latino
jurors.  We have said that "[w]here there are two permissible views of the
evidence, the factfinder's choice between them cannot be clearly
erroneous."  Anderson v. Bessemer City, 470 U. S. 564, 574 (1985).  The
trial court took a permissible view of the evidence in crediting the
prosecutor's explanation.  Apart from the prosecutor's demeanor, which of
course we have no opportunity to review, the court could have relied on the
facts that the prosecutor defended his use of peremptory challenges without
being asked to do so by the judge, that he did not know which jurors were
Latinos, and that the ethnicity of the victims and prosecution witnesses
tended to undercut any motive to exclude Latinos from the jury.  Any of
these factors could be taken as evidence of the prosecutor's sincerity.
The trial court, moreover, could rely on the fact that only three
challenged jurors can with confidence be identified as Latinos, and that
the prosecutor had a verifiable and legitimate explanation for two of those
challenges.  Given these factors, that the prosecutor also excluded one or
two Latino venirepersons on the basis of a subjective criterion having a
disproportionate impact on Latinos does not leave us with a "definite and
firm conviction that a mistake has been committed."  United States v.
United States Gypsum Co., supra, at 395.
D
    Language permits an individual to express both a personal identity and
membership in a community, and those who share a common language may
interact in ways more intimate than those without this bond.  Bilinguals,
in a sense, inhabit two communities, and serve to bring them closer.
Indeed, some scholarly comment suggests that people proficient in two
languages may not at times think in one language to the exclusion of the
other.  The analogy is that of a highhurdler, who combines the ability to
sprint and to jump to accomplish a third feat with characteristics of its
own, rather than two separate functions.  Grosjean, The Bilingual as a
Competent but Specific Speaker-Hearer, 6 J. Multilingual & Multicultural
Development 467 (1985).  This is not to say that the cognitive processes
and reactions of those who speak two languages are susceptible of easy
generalization, for even the term "bilingual" does not describe a uniform
category.  It is a simple word for a more complex phenomenon with many
distinct categories and subdivisions.  Sanchez, Our Linguistic and Social
Context, in Spanish in the United States 9, 12 (J. Amastae & Elias-Olivares
1982); Dodson, Second Language Acquisition and Bilingual Development: A
Theoretical Framework, 6 J. Multilingual & Multicultural Development 325,
326-327 (1985).
    Our decision today does not imply that exclusion of bilinguals from
jury service is wise, or even that it is constitutional in all cases.  It
is a harsh paradox that one may become proficient enough in English to
participate in trial, see, e. g., 28 U. S. C. 15 1865(b)(2),(3)
(English-language ability required for federal jury service), only to
encounter disqualification because he knows a second language as well.  As
the Court observed in a somewhat related context: "Mere knowledge of [a
foreign] language cannot reasonably be regarded as harmful.  Heretofore it
has been commonly looked upon as helpful and desirable."  Meyer v.
Nebraska, 262 U. S. 390, 400 (1923).
    Just as shared language can serve to foster community, language
differences can be a source of division.  Language elicits a response from
others, ranging from admiration and respect, to distance and alienation, to
ridicule and scorn.  Reactions of the latter type all too often result from
or initiate racial hostility.  In holding that a race-neutral reason for a
peremptory challenge means a reason other than race, we do not resolve the
more difficult question of the breadth with which the concept of race
should be defined for equal protection purposes.  We would face a quite
different case if the prosecutor had justified his peremptory challenges
with the explanation that he did not want Spanish-speaking jurors.  It may
well be, for certain ethnic groups and in some communities, that
proficiency in a particular language, like skin color, should be treated as
a surrogate for race under an equal protection analysis.  Cf. Yu Cong Eng
v. Trinidad, 271 U. S. 500 (1926) (law prohibiting keeping business records
in other than specified languages violated equal protection rights of
Chinese businessmen); Meyer v. Nebraska, supra (striking down law
prohibiting grade schools from teaching languages other than English).
And, as we make clear, a policy of striking all who speak a given language,
without regard to the particular circumstances of the trial or the
individual responses of the jurors, may be found by the trial judge to be a
pretext for racial discrimination.  But that case is not before us.

III
    We find no error in the application by the New York courts of the
three-step Batson analysis.  The standard inquiry into the objecting
party's prima facie case was unnecessary given the course of proceedings in
the trial court.  The state courts came to the proper conclusion that the
prosecutor offered a race-neutral basis for his exercise of peremptory
challenges.  The trial court did not commit clear error in choosing to
believe the reasons given by the prosecutor.

Affirmed.








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1
    The prosecutor later gave the same explanation for challenging the
bilingual potential jurors:

". . . I felt that from their answers they would be hard pressed to accept
what the interpreter said as the final thing on what the record would be,
and I even had to ask the Judge to question them on that, and their answers
were -- I thought they both indicated that they would have trouble,
although their final answer was they could do it.  I just felt from the
hesitancy in their answers and their lack of eye contact that they would
not be able to do it."  App. 6.

2
    The trial judge appears to have accepted the prosecutor's reasoning as
to his motivation.  In response to a charge by defense counsel that the
prosecutor excluded Latino jurors out of fear that they would sympathize
with the defendant, the judge stated:
    "The victims are all Hispanics, he said, and, therefore, they will be
testifying for the People, so there could be sympathy for them as well as
for the defendant, so he said [it] would not seem logical in this case he
would look to throw off Hispanics, because I don't think that his logic is
wrong.  They might feel sorry for a guy who's had a bullet hole through
him, he's Hispanic, so they may relate to him more than they'll relate to
the shooter."  Id., at 8.

3
    Respondent cites United States v. Perez, 658 F. 2d 654 (CA9 1981),
which illustrates the sort of problems that may arise where a juror fails
to accept the official translation of foreign-language testimony.  In
Perez, the following interchange occurred:
    "DOROTHY KIM (JUROR NO. 8): Your Honor, is it proper to ask the
interpreter a question?  I'm uncertain about the word La Vado [sic].  You
say that is a bar.
    "THE COURT: The Court cannot permit jurors to ask questions directly.
If you want to phrase your question to me --
    "DOROTHY KIM: I understood it to be a restroom.  I could better believe
they would meet in a restroom rather than a public bar if he is
undercover.
    "THE COURT: These are matters for you to consider.  If you have any
misunderstanding of what the witness testified to, tell the Court now what
you didn't understand and we'll place the --
    "DOROTHY KIM: I understand the word La Vado [sic] -- I thought it meant
restroom.  She translates it as bar.
    "MS. IANZITI: In the first place, the jurors are not to listen to the
Spanish but to the English.  I am a certified court interpreter.
    "DOROTHY KIM: You're an idiot."  Id., at 662.

Upon further questioning, "the witness indicated that none of the
conversations in issue occurred in the restroom."  Id., at 663.  The juror
later explained that she had said " `it's an idiom' " rather than " `you're
an idiot,' " but she was nevertheless dismissed from the jury.  Ibid.