concurring:
I concur with the majority’s opinion in this case, but write separately to point out problems trial judges may have in the future in dealing with Batson challenges. It has always been the law that “[ejach party is . . . given the right to challenge a certain number of jurors peremptorily or without assigning any reason.” Oliver v. State, 85 Nev. 418, 423, 456 P.2d 431, 434 (1969); see also NRS 175.051. The recent rulings by the United States Supreme Court have placed limitations on this rule.
The group allegedly discriminated against in this case was women. The challenge was made even though the jury consisted of five women and the person making the challenge was a male. Under the new rulings it is not necessary that a person be a member of a group allegedly being discriminated against. A white person can challenge the action even though African-Americans are being systematically excluded from the jury by peremptory challenges. Powers v. Ohio, 499 U.S. 400 (1991); Holland v. Illinois, 493 U.S. 474 (1990); Peters v. Kiff, 407 U.S. 493 (1972). Furthermore, the rule applies to defendants as well as prosecutors. Georgia v. McCollum, 505 U.S. 42 (1992).
*57At the time of the jury selection, the United States Supreme Court had not named gender as a basis for a Batson challenge. It later declared that gender was a cognizable group that may not be discriminated against. The trial judge must now anticipate what group of potential jurors may some day be included under the Batson ruling. If defendants or prosecutors decide to pick a jury of people between the ages of 25 and 50, are they discriminating on the basis of age? Some prosecutors believe persons of a certain ethnic background make better jurors for the state while other attorneys believe other ethnic groups would favor the defense. Would peremptory challenges based on ethnic groups be purposeful discrimination and prohibited under Batson? What members of a cognizable group can the judge prevent from systematic exclusion? Trial lawyers can no longer exercise a peremptory challenge “without assigning any reason.”
Furthermore, the trial judge may be called on to decide the challenge years later (eight years in this case) and if any hearing is meaningless at that time the court must vacate a defendant’s conviction and schedule a new trial. Libby v. State, 113 Nev. 251, 258, 934 P.2d 220, 224 (1997) (citing United States v. Thompson, 827 F.2d 1254 (9th Cir. 1987)).
Therefore, this court should give great deference to the trial court’s decision. The judge is the one who presides over the jury selection process and observes the credibility of the prosecutor, the defense attorney and the witnesses at any evidentiary hearing. The judge’s findings should not be overturned unless they are clearly erroneous. Hernandez v. New York, 500 U.S. 352, 365 (1991).
I would defer to the trial judge’s decision in this case and affirm the order denying a new trial.