[that historically] have been associated with improper discrimination in jury selection in Washington State . . . .” The presumptively invalid reasons are:
- Having prior contact with law enforcement officers;
- Expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling;
- Having a close relationship with people who have been stopped, arrested, or convicted of a crime;
- Living in a high-crime neighborhood;
- Having a child outside of marriage;
- Receiving state benefits; and
- Not being a native English speaker.
Finally, GR37 addresses reliance on the venire member’s conduct as a reason for the peremptory strike, noting that reasons such as sleeping, inattentiveness, eye contact, general demeanor, or unintelligent or confusing answers also “have historically been associated with improper discrimination in jury selection in Washington State.” GR37 thus requires reasonable notice that an attorney intends to rely on one of these reasons so that it can be corroborated by the judge or opposing counsel.
How did GR37 come about?
GR37 was born out of the Washington State Supreme Court’s recognition that the Batson framework generally failed to achieve its designed purpose. In State v. Saintcalle, 178 Wn.2d 34 (2013), the court acknowledged “a growing body of evidence” showing that “racial discrimination remains rampant in jury selection,” including in Washington. In multiple opinions, the Justices discussed studies of actual peremptory usage, laboratory studies, case outcomes, surveys of practitioners and judges, training materials, treatises, and investigative reports. While finding that the trial court below had not abused its discretion under Batson, the court expressed concern that Batson focuses only on purposeful discrimination, “whereas racism is often unintentional, institutional, or unconscious.” The court also expressed concern that under the Batson framework, judges are seemingly required to brand attorneys practicing before them as racist, and may be reluctant to do so. The court went on to discuss a variety of potential avenues for addressing the shortcomings of Batson, including abolition of peremptory strikes altogether. It concluded by highlighting the need for continuing discussion and solutions to the problem.
Following the Saintcalle decision, the ACLU spent a period of time developing a proposed court rule. The proposal was finally submitted to the Supreme Court on July 14, 2016, followed by a comment period. Numerous stakeholders submitted comments on the proposed rule, including associations representing prosecutors, defenders, plaintiffs’ lawyers, civil defense lawyers, and judges, along with numerous minority bar associations and civil rights organizations. Because the comments reflected disagreement among these groups, the Supreme Court convened a workgroup of these key stakeholders to meet, talk through the disagreements, and either reach consensus or crystallize and explain remaining disagreements. This work group spent approximately six months working on the issue and finally submitted its report to the Supreme Court on March 18, 2018. The report included a proposed framework with alternatives and explanatory statements from the stakeholders. The Supreme Court proceeded to adopt a final version of GR 37 on April 5, 2018, and it became effective on April 24, 2018.
What does GR37 practically mean for litigators?
GR37 effectively lowers the burden for parties objecting to a peremptory strike for reasons of racial bias. To invalidate a peremptory, the court need only find that an objective observer could view race or ethnicity as a factor. This means that when in doubt, the justice system will now err on the side of eradicating racial bias rather than upholding a peremptory strike. The rule shifts the focus away from the subjective intent of the attorney and/or party exercising the peremptory and—much like the longstanding appearance of fairness doctrine—focuses on how an outside observer might perceive the proceedings. Notably, race or ethnicity need only be perceived as a factor, rather than the factor or a predominant factor, in the use of a challenged peremptory.
By defining an “objective observer” as someone who “is aware that implicit, institutional, and unconscious biases . . . have resulted in the unfair exclusion of potential jurors in Washington State,” GR37 broadens the traditional concept of racism and requires judges to recognize that racial bias may be at play even when its presence is not obvious or conscious—even to the attorney or party exercising the strike. In other words, it asks trial judges to dig deeper and think more critically when exploring the issue of potential racial bias.
It further suggests that attorneys need to dig deeper as well. Previously, under Batson, it was the obligation of the objecting party to establish the existence of purposeful discrimination. In contrast, GR 37 makes no mention of any evidentiary burden on either party. Once the rule has been invoked, the court is directed to determine whether or not the peremptory will be upheld based on the totality of circumstances. This suggests that whenever a genuine concern over racial bias is presented, attorneys exercising peremptory strikes should have very clear and convincing explanations for why race is not a factor in the decision to exercise the peremptory.
In a nutshell, GR 37 is to be invoked whenever there is a genuine concern that racial bias might be influencing the exercise of a peremptory strike. Under such circumstances, the peremptory will not be allowed unless there are one or more distinct reasons for the strike that are race-neutral and persuasive, so that an objective observer could not view race as a factor. As with all court rules, GR 37 is to be interpreted and applied sensibly and in light of its underlying purposes.
Important Considerations for Attorneys and Judges
At the heart of GR37 are the questions of what constitutes racial discrimination and how to identify bias in venire members. In this respect, GR37 takes a significant step forward in recognizing the reality that modern day racism is often “beneath the surface,” and not necessarily an intentional or overt act.
GR37 forces attorneys to rethink how they identify bias in jury selection. We are a country that is obsessed with demographics and the differences between whites and blacks, men and women, old and young, and so on. It is easy (and perhaps lazy) to look at these factors first when evaluating a venire, and many attorneys do. GR37 asks attorneys to dig deeper. Demographics are meaningful only because we often assume people of similar demographics have similar experiences, beliefs, and attitudes. But research has shown that reliance on demographics is an inaccurate shortcut littered with problems. One solution is for attorneys to shift their focus to the actual experiences, beliefs, and attitudes and forget about the demographics. There is a great deal of research in psychology that suggests experiences and beliefs are the best indicators of bias and decision-making. Consequently, attorneys should focus on these characteristics and spend time exploring how they connect to the venire members’ ability to serve in the case in question.
However, in order to accomplish a shift away from the focus on demographics, attorneys may need better jury selection conditions. Specifically, more voir dire time might be needed in order for them to dig deeper. In fact, some attorneys often rely on demographics because they have so little time to gather other meaningful information about venire members. This is something for judges to consider as part of their case management practices. A short, supplemental juror questionnaire may be another useful avenue for collecting meaningful information about venire members.
As GR 37 is implemented, concerns about variation among individual judges may also arise. Every attorney knows that judges fall all over the spectrum when it comes to personality, experience, personal beliefs, and how each of those impact a judge’s decision making. With regard to GR 37, some attorneys may have concerns that a “liberal” judge could see race as a factor more often than is warranted, while “conservative” judges are too slow to conclude that race may have been a factor. There is no easy answer to this concern, which affects the entire justice system. At the same time, judge training and appellate review could promote consistency and clarity for the new framework over time, including with regard to the scope of discretion that trial judges will be afforded.
GR37 also provides an opportunity for judges to critically examine their own practices. GR37 provides a clear standard (the objective observer) for determining whether or not racial discrimination has occurred, including an express acknowledgment of institutional, implicit, and unconscious biases. But it is the trial judge who ultimately must determine what this hypothetical observer would know and could conclude with regard to the particular circumstances in each case. At the same time, research demonstrates that judges are not immune to the implicit, institutional, and unconscious racial biases that GR 37 highlights. One might question whether or not these biases could influence judges’ own determinations of whether or not race was a factor in a peremptory strike. More broadly, this issue has significant implications about the need for further reforms to the justice system.
GR37 is a noble step forward in the effort to tackle racial bias in jury selection. However, racism is a complex issue with no simple solutions and continuing discussion moving forward is vital. Attorneys and judges need to critically evaluate their jury selection practices and dig deeper when it comes to determining whether or not to exclude a venire member. The research suggests that, not only will this help remove racial bias from jury selection, but it will also help attorneys become more effective at identifying actual bias in the jury pool.
Thomas M. O’Toole, Ph.D. is the president of Sound Jury Consulting. Taki V. Flevaris, J.D. is a partner at Pacifica Law Group and a Faculty Affiliate at the Korematsu Center for Law and Equality. Mr. Flevaris participated in the Washington Supreme Court’s GR 37 work group on behalf of the Korematsu Center.
Originally published in the July 2018 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association.
 See, e.g., Jeffrey J. Rachlinski & Sheri L. Johnson, Does Unconscious Racial Bias Affect Trial Judges, 84 Notre Dame L. Rev. 1195 (2009).