The Washington Supreme Court is the first court in the nation to adopt rules aimed at eliminating implicit bias from jury selection in both civil and criminal cases. The new General Rule 37 (effective April 24, 2018) dramatically alters practices and procedures regarding exercising peremptory challenges. It remains to be seen whether this new rule will become a model for rule changes elsewhere.

Under the new rule, a party’s objection to the exercise of a peremptory would only need to cite to the rule, such as “Object your Honor, General Rule 37.” Then, any further discussion of the matter would be conducted outside the jury’s presence. In responding to the objection, the party must state the reasons for the peremptory challenge.

Under Batson, “the person challenging the peremptory must ‘make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” However, under GR 37, “(t)he court need not find purposeful discrimination to deny the peremptory challenge.” Instead, if the judge decides that “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied.” The “objective observer” is defined by GR 37 as someone who “is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.”

Regarding reasons offered for showing a race-and-ethnicity-neutral basis for the peremptory, GR 37(h) provides a list of presumptively invalid reason for exercising peremptories, such as “having prior contact with law enforcement officers.” Additionally, GR 37(i) states that if the party exercising the peremptory wants to use a juror’s questionable conduct (“juror was sleeping, inattentive, or staring or failing to make eye contact; exhibited a problematic attitude, body language, or demeanor; or provided unintelligent or confused answers”) as justification for the peremptory, the “party must provide reasonable notice to the court and the other parties so the behavior can be verified and addressed in a timely manner.” If neither the judge nor opposing counsel corroborate the juror’s behavior, the grounds for the peremptory shall be invalid

In making the determination of whether race or ethnicity was a factor in exercising the peremptory challenge, GR 37(g) provides a nonexclusive list of relevant factors paralleling those referred to in Foster v. Chatman, 136 S.Ct. 290 (2015), such as “whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors.”

The following is the full text of the new rule:

GR 37 JURY SELECTION

(a) Policy and Purpose. The purpose of this rule is to eliminate the unfair exclusion of potential jurors based on race or ethnicity.

(b) Scope. This rule applies in all jury trials.

(c) Objection. A party may object to the use of a peremptory challenge to raise the issue of improper bias. The court may also raise this objection on its own. The objection shall be made by simple citation to this rule, and any further discussion shall be conducted outside the presence of the panel. The objection must be made before the potential juror is excused, unless new information is discovered.

(d) Response. Upon objection to the exercise of a peremptory challenge pursuant to this rule, the party exercising the peremptory challenge shall articulate the reasons the peremptory challenge has been exercised.

(e) Determination. The court shall then evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge. The court should explain its ruling on the record.

(f) Nature of Observer. For purposes of this rule, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.

(g) Circumstances Considered. In making its determination, the circumstances the court should consider include, but are not limited to, the following:

(i)the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the types of questions asked about it;

(ii) whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors;

(iii) whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party;

(iv) whether a reason might be disproportionately associated with a race or ethnicity; and

(v) whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases.

(h) Reasons Presumptively Invalid. Because historically the following reasons for peremptory challenges have been associated with improper discrimination in jury selection in Washington State, the following are presumptively invalid reasons for a peremptory challenge:

(i) having prior contact with law enforcement officers;

(ii) expressing a distrust of law enforcement or a belief that law enforcement officers engage in       racial profiling;

(iii) having a close relationship with people who have been stopped, arrested, or convicted of a crime;

(iv) living in a high-crime neighborhood;

(v) having a child outside of marriage;

(vi) receiving state benefits; and

(vii) not being a native English speaker.

(i) Reliance on Conduct. The following reasons for peremptory challenges also have historically been associated with improper discrimination in jury selection in Washington State: allegations that the prospective juror was sleeping, inattentive, or staring or failing to make eye contact; exhibited a problematic attitude, body language, or demeanor; or provided unintelligent or confused answers. If any party intends to offer one of these reasons or a similar reason as the justification for a peremptory challenge, that party must provide reasonable notice to the court and the other parties so the behavior can be verified and addressed in a timely manner. A lack of corroboration by the judge or opposing counsel verifying the behavior shall invalidate the given reason for the peremptory challenge. [Adopted effective April 24, 2018.]