with whom Circuit Judges PREGERSON and HAWKINS join, dissenting:
This case involves an important constitutional right — freedom from discrimination in jury selection. Because Supreme Court and circuit precedent support de novo review of the prima facie prong of a challenge to secure that right, I respectfully dissent.
Juries have long been a cornerstone of our democratic system. See Powers v. Ohio, 499 U.S. 400, 406-07, 111 S.Ct. 1364, 118 L.Ed.2d 411 (1991); Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1879). Aside from voting, jury service affords “ordinary citizens” the “most significant opportunity to participate in the democratic process.” Powers, 499 U.S. at 407, 111 S.Ct. 1364. Invidious discrimination in the selection of jurors denies citizens this important role, “ ‘casts doubt on the integrity of the judicial process’ ..., and places the fairness of a criminal proceeding in doubt.” Id. at 411, 111 S.Ct. 1364 (citation omitted). As Batson teaches, the Constitution “forbid[s] discrimination on account of race in selection of the petit jury” “because it denies [a defendant] the protection that a trial by jury is intended to secure.” Batson v. Kentucky, 476 U.S. 79, 86, 88, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Given the importance of this constitutional right, the standard of review governing an equal protection challenge to the exercise of peremptory strikes is a significant issue. In choosing to review for clear error a trial court’s determination that a criminal defendant failed to establish a prima facie case under Batson, the majority puts the proverbial cart before the horse. We are not concerned here with a trial court’s ultimate finding as to intentional discrimination in the jury selection process, which clearly would be entitled to deference under Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Rather, we deal with the threshold question whether the defendant has raised an inference of discrimination sufficient to shift the burden to the prosecutor to articulate a neutral explanation for the peremptory strike. By transforming this threshold question into an intense “factual inquiry,” and thereby merging the first and third prongs of the Batson standard, the majority has, as a practical matter, insulated from review a trial court’s decision to reject a Batson challenge.
Instead, I believe that a prima facie Batson challenge should be reviewed under a two-tier standard: while giving deference to the trial court’s factual findings concerning the elements of the prima facie case, we should review de novo whether the challenging party has raised a sufficient inference of discrimination to shift the burden of production. This dual level standard of review at the prima facie stage is consistent with our jurisprudence regarding the similar burden-shifting scheme for claims under Title VII of the Civil Rights Act of 1964 and with the Supreme Court’s recent holdings in other analogous contexts.
The majority’s thoughtful discussion is less than complete in at least three respects: (1) it fails to acknowledge adequately the parallels between the Batson and Title VII standards; (2) it fails to distinguish sufficiently between the burden of production and the ultimate burden of persuasion; and (3) it fails to recognize the consistent theme in the Supreme Court’s treatment of habeas review standards. These issues are critical to an analysis of the proper standard of review concerning the Batson prima facie showing.
I. Title VII Standards Are Instructive
In Batson, the Supreme Court made clear its intent that Title VII “burden of proof rules” and review standards apply to Batson challenges. 476 U.S. at 94 n. 18, 98 n. 21, 106 S.Ct. 1712. With respect to Title VII, we have held that a determination whether the plaintiff established a pri-*687ma facie case is reviewed de novo. See Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 540 (9th Cir.1982). Now that we are confronted with a case involving a constitutional right, the standard of scrutiny should be nothing less.
Batson outlines a three-part burden-shifting scheme for establishing purposeful discrimination in the exercise of peremptory challenges. Our focus here is on the first prong — establishing a prima facie case. To satisfy this threshold inquiry, a defendant must “raise[ ] the necessary inference of purposeful discrimination.”1 476 U.S. at 96, 106 S.Ct. 1712. This minimal burden of production, which simply shifts the burden to the prosecutor to provide a neutral explanation, must be contrasted with the defendant’s ultimate burden of persuasion to establish purposeful discrimination. Although the Supreme Court has not announced a standard of review for the Batson prima facie case, the clearest signal can be found in its unambiguous reference in this context to Title VII:
Our decisions concerning “disparate treatment” under Title VII of the Civil Rights Act of 1964 have explained the operation of prima facie burden of proof rules. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).
Batson, 476 U.S. at 94 n. 18, 106 S.Ct. 1712.
Following the Supreme Court’s lead, we should look to our precedent involving the standard of review applicable to the prima facie test under Title VII.2 In Gay, we held that the trial court’s factual findings supporting the prima facie showing are reviewed only for clear error, but further explained that the ultimate determination whether a prima facie case has been established is a legal question reviewed de novo:
[T]he court’s determination whether the facts so proved were sufficient to establish an inference of discrimination, in other words whether the plaintiff’s proof established a prima facie case thus shifting the burden of production to the defendant, is a legal conclusion freely reviewable on appeal.
694 F.2d at 540 (emphasis added) (acknowledging inconsistencies in prior Ninth Circuit authority). The similarities between the burden-shifting approaches under Batson and Title VII, and the constitutional nature of the Batson inquiry, provide strong support for de novo review of a prima facie showing under Batson.
*688In support of its conclusion that “the concerns of judicial administration” tip in favor of the clear error standard, the majority quotes a single sentence from Bat-son: “We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges create[ ] a prima facie case of discrimination.” 476 U.S. at 97, 106 S.Ct. 1712. I do not believe this sentence informs our opinion because the sentence must be read in context and because the sentence and surrounding text make no reference to the standard of review for a Batson challenge.
Just before the referenced sentence appears in the opinion, the Court, having outlined the elements of a prima facie challenge, provides “illustrative” examples to assist trial courts in assessing whether the defendant has made the requisite showing. The Court specifically states that “a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination.” Id. Then, indicating its reluctance to establish any bright-line rules, the Court offers the quoted sentence. Read in context, this sentence merely acknowledges the reality of the trial court’s role and evidences the Court’s reluctance to impose evaluative standards that might prove too rigid or inflexible.
More importantly, this sentence neither addresses nor appears in the context of a discussion concerning the standard for reviewing the prima facie determination. Rather, with respect to review standards, the Court’s only references in Batson are to its Title VII jurisprudence, as discussed above. See id. at 94 n. 18, 106 S.Ct. 1712; see also id. at 98 & n. 21, 106 S.Ct. 1712 (“The trial court then will have the duty to determine if the defendant has established purposeful discrimination. 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.”). Thus, the sentence at issue does not provide any guidance concerning the standard of review applicable to the prima facie determination, and the majority’s reliance on it is misplaced.
II. The Burdens of Production and Persuasion are Distinct
The majority offers a careful review of the standards applicable to mixed questions of law and fact, acknowledging, however, that this approach provides no clear-cut answer. Indeed, our holding in Gay casts doubt on the appropriateness of the majority’s reliance on such labeling. In Gay, we recognized that the trial court might make factual findings, but characterized as “legal” the conclusion whether to shift the burden of production. In addition, the majority’s approach of simply labeling the Batson prima facie inquiry a mixed issue of law and fact only begs the question and blurs the distinction between shifting the burden of production and satisfying the burden of persuasion, ie., deciding the ultimate issue of discrimination. As Gay recognized, raising an inference of discrimination sufficient to require the other side to articulate a neutral explanation cannot be equated with the ultimate factual finding of purposeful discrimination.
Unlike the majority, I do not find Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991), particularly instructive. Salve Regina involved the issue whether a district court’s interpretation of state law is entitled to deference on appeal. See id. at 226, 111 S.Ct. 1217. The Court concluded that appellate courts are more “structurally suited” to determine legal issues and that the appropriate standard of review is de novo. See id. at 231-32, 111 S.Ct. 1217. Although the Court referred in passing to a district court’s potentially better position to evaluate mixed questions of law and fact, the Court was not in that case confronted with a constitutional right or the complexities associated with the shifting of burdens between parties.
*689Moreover, United States v. McConney, 728 F.2d 1195 (9th Cir.1984) (en banc), on which the majority relies in its labeling approach, actually supports de novo review. In McConney, we observed that de novo review is favored “when the mixed question implicates constitutional rights.” Id. at 1203. Not only does the Batson prima facie challenge involve constitutional concerns, it also presents the sort of situation that McConney recognized as calling for de novo review. Taken together, the three elements of the Batson prima facie case “require[ ] us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles.” Id.. at 1202. Hence, “the concerns of judicial administration ... favor the appellate court, and the question should be classified as one of law and reviewed de novo.” Id.
Seeking a solution through labels is not the answer. Instead, I believe that a careful study of Batson and Hernandez supports de novo review of the prima facie determination. In Batson, the Court’s purpose was to remove the “crippling burden of proof’ placed on defendants by lower courts’ interpretation of the decision in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). See Batson, 476 U.S. at 92, 106 S.Ct. 1712. The Court rejected the then prevailing evidentiary requirement that the defendant show a pattern of striking African-Americans from the jury in a number of past cases. See id. at 92-93, 106 S.Ct. 1712. Instead, the Court held that the defendant’s burden is specific to the case at hand. See id. at 95-96, 106 S.Ct. 1712.
In light of its concern that the evidentia-ry standards of the day had rendered “prosecutors’ peremptory challenges ... largely immune from constitutional scrutiny,” id. at 92-93, 106 S.Ct. 1712, the Court could not have intended in Batson to institute in their place an equally onerous evi-dentiary burden. Thus, I do not believe, as the majority suggests, that the Court envisioned that the prima facie stage is primarily a “factual inquiry.” Rather, this type of intense “factual inquiry” is reserved for the final stage, when the trial court has “the duty to determine if the defendant has established purposeful discrimination.” Id. at 98, 106 S.Ct. 1712.
By treating the threshold determination as a primarily factual one, the majority ignores the very important second prong of the Batson inquiry. If the circumstances raise an inference that the intent in striking venire members was discriminatory, Batson still requires that the prosecutor articulate for the record the reasons for the challenge. The trial judge’s guess or speculation as to the prosecutor’s reasons should not be used as a substitute for the actual motive, and the requirement that the prosecutor state a neutral explanation should not be circumvented by collapsing the prima facie and final prongs of Batson into a single inquiry.
In concluding that the trial court’s ruling on the ultimate question of intentional discrimination renders moot the preliminary issue whether the defendant made a prima facie showing, and that an appellate court’s review on such record is only for clear error, the Court in Hernandez confirmed the distinction between the prima facie and final prongs of the Batson inquiry. See Hernandez, 500 U.S. at 359, 364-69, 111 S.Ct. 1859 (plurality); id. at 372, 111 S.Ct. 1859 (O’Connor, J., concurring). As explained in Hernandez:
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 .... [Evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.”
Id. at 365, 111 S.Ct. 1859. In so characterizing the Batson analysis, the Court made clear that the trial court’s “factual *690inquiry” and weighing of the prosecutor’s credibility should occur after, not before, the prosecutor has offered a neutral explanation. See also Purkett v. Elem, 514 U.S. 765, 768-69, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (distinguishing between imper-missibly discounting the prosecutor’s reasons as “silly or superstitious” at stage two of the Batson inquiry and determining at stage three whether the defendant has carried the burden of proving purposeful discrimination in light of the stated reasons, which the trial court may choose to disbelieve).
III. Supreme Court Guidance in Other Contexts Supports De Novo Review
As the Seventh Circuit recently observed, the Supreme Court’s decision in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), “points in the direction of de novo review.” Mahaffey v. Page, 162 F.3d 481, 484 (7th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1786, 143 L.Ed.2d 814 (1999). In Ornelas, the Court held that, in the context of investigatory stops and warrantless searches, determinations of reasonable suspicion and probable cause are to be reviewed de novo on appeal. 517 U.S. at 699, 116 S.Ct. 1657. The majority attempts to distinguish Ornelas, but a probable cause determination is not as different from the prima facie Batson inquiry as the majority indicates. Just as the trial judge in a Batson inquiry must look to the “facts and any other relevant circumstances,” the trial judge evaluating probable cause must determine the facts and circumstances surrounding the search, assess the credibility of the police officer, and determine whether the inferences drawn by the officer were reasonable, before reaching the ultimate legal conclusion. Indeed, these facts often do play out in front of the trial judge just as they do in the Batson context. As the Court in Ornelas reminds us, “[a]n appeals court should give due weight to a trial court’s finding that the officer was credible and the inference was reasonable.” Id. at 700, 116 S.Ct. 1657. Despite these credibility assessments, which are wholly analogous to those under Batson, the Court opted in Ornelas for de novo review as to whether the facts gave rise to reasonable suspicion or probable cause.
Ornelas is also consistent with the two-level review adopted in Gay. Although the Court in Ornelas adopted de novo review as to the ultimate determination of reasonable suspicion or probable cause, it took pains to emphasize the deference to be given the trial court’s underlying factual findings:
[A] reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.
Id. at 699, 116 S.Ct. 1657. Likewise, in Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the Court recognized the appropriateness of the two-tier approach:
To be sure, subsidiary factual questions, such as whether a drug has the properties of a truth serum ... or whether in fact the police engaged in the intimidation tactics alleged by the defendant, ... are entitled to the § 2254(d) presumption. ... But, as we now reaffirm, the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination.
Id. at 112, 106 S.Ct. 445 (citations omitted). Thus, the two-level review that I propose comports with the Supreme Court’s teachings and more effectively advances the purposes of Batson.
The majority cites several cases involving the standard of review applied by the Supreme Court in other contexts. In concentrating on the standard adopted — deferential or de novo — the majority fails to capture the consistent theme running *691through these cases. In each of the habe-as cases cited by the majority, the issue was whether the state court’s ruling constituted a factual finding “presumed to be correct” on habeas review pursuant to 28 U.S.C. § 2254(d). In both Miller and Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), the Supreme Court concluded that the state court’s ruling was not the type of factual finding that should be insulated from habe-as review.
In Miller, the Court held that the voluntariness of a confession is a legal question, which is reviewed de novo. 474 U.S. at 112, 106 S.Ct. 445. The Court concluded in Thompson that whether a suspect was “in custody” at the time of interrogation presents a mixed question of law and fact qualifying for independent review. 516 U.S. at 112-13, 116 S.Ct. 457. In contrast, in Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), the Court treated a state trial court’s evaluation of juror impartiality as a finding of “historical fact” entitled to the statutory presumption of correctness on habeas review. See id. at 1036-37, 104 S.Ct. 2885. Thus, taken together, these habeas cases dictate de novo review of the ultimate issue in the first Batson prong, which the majority acknowledges is at least a mixed question of law and fact, as distinct from a purely factual finding that is presumed correct on habeas review.
Of the other habeas cases cited by the majority, the only one conceivably casting doubt on the applicability of de novo review is Maggio v. Fulford, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983), in which the Supreme Court analyzed the state court’s ruling concerning competency to stand trial as a finding of fact “fairly supported by the record.” Id. at 117, 103 S.Ct. 2261 (quoting former 28 U.S.C. § 2254(d)(8)). Four Justices, in three separate opinions, however, pointed out that the Court traditionally has treated the ultimate question of a defendant’s competency as a mixed question of law and fact, subject to “full federal review,” and that the majority in Maggio neither overruled the prior cases nor offered any explanation for its failure to follow the Court’s precedent. See id. at 119, 103 S.Ct. 2261 (White, J., concurring); id. at 120, 103 S.Ct. 2261 (Marshall, J., dissenting) (citing Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), and Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). Hence, Maggio provides little, if any, support for the clear error standard of review adopted by the majority here.
Finally, Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), a Title VII case cited by the majority, is consistent with the distinction being made here between the first and third prongs of the Batson standard. In Swint, the Supreme Court deemed the district court’s ruling concerning lack of discriminatory intent a pure question of fact subject to the clearly erroneous standard of Fed.R.Civ.P. 52(a). See id. at 287-88, 102 S.Ct. 1781. The district court’s decision in Siuint, rendered after a full trial, is analogous to the determination made under the third Batson prong. Svuint does no more" than confirm the deference owed to the trial court’s ultimate finding as to whether the defendant proved purposeful discrimination by the prosecutor in jury selection.
Conclusion
We should join the Seventh Circuit in adopting de novo review of the Batson prima facie inquiry. De novo review is consistent with our circuit’s Title VII jurisprudence and with the Supreme Court’s teachings in Batson, Hernandez, Ornelas, and the habeas cases discussed earlier. The two-tier standard preserves meaningful review with respect to one of the most important constitutional rights — the right to be judged by a jury chosen free of purposeful discrimination.
. The three elements of the prima facie case are: (1) proof of membership in a cognizable group and use of peremptory challenges to remove venire members of a cognizable group; (2) the presumption that peremptory challenges permit discrimination by those inclined to discriminate; and (3) a showing that the above facts and “any other relevant circumstances” raise an inference of discrimination. Batson, 476 U.S. at 96, 106 S.Ct. 1712; see Powers, 499 U.S. at 402, 111 S.Ct. 1364 (defendant and venire member need not be of the same cognizable group). Satisfying the three prima facie factors raises the necessary inference of purposeful discrimination to shift the burden to the other party to provide a neutral explanation for challenging the venire members at issue. Batson, 476 U.S. at 96-97, 106 S.Ct. 1712; cf. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 n. 7, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (prima facie case in this context “denole[s] the establishment of a legally mandatory, rebuttable presumption”).
. The four elements of the Title VII prima facie case are: (i) membership in a protected class; (ii) application and qualification for the' job or satisfactory performance in the job; (iii) rejection or discharge; and (iv) the employer's continued solicitation of similarly qualified applicants or replacement of the plaintiff with an equally or less qualified person. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny.