In 2018, Washington adopted GR37, which is a new
general rule that changes how racial bias in jury selection is addressed. The
rule is designed to provide courts with guidance for effectively eliminating
racial bias in the use of peremptory strikes. The purpose of this article to
explain GR37 and what it means for litigators and judges in Washington courts.
What is the rule and does it change the jury selection process?
GR37 outlines a process for handling concerns about racial
bias in the use of peremptory strikes during jury selection. There are two key procedural
components. The first deals with how the issue is raised. The rule states that
a party may object to a peremptory strike on the basis of improper bias by merely
citing the rule. The objection must be made before the venire member in
question has been excused, unless new information is discovered. The court is
also authorized to raise the objection on its own. The ensuing discussion must be
held outside the presence of the venire, and the proponent must then state the
reasons for the strike.
The second component provides guidance to judges on
determining whether to allow the peremptory strike. Under the previous process
established under Batson v. Kentucky,
476 U.S. 79 (1986), the trial court was required to find that the side
exercising the peremptory had engaged in purposeful discrimination in order to
invalidate the peremptory. Under GR37, the court need only find that, under the
totality of circumstances, an objective observer could view race or ethnicity
as a factor. The rule defines an
objective observer 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.”
The rule goes on to specify five non-exclusive circumstances
that the trial court should consider in determining whether or not an objective
observer could view race as a factor:
·
The number and types of questions posed to the
prospective juror;
·
Whether the party exercising the peremptory
challenge asked significantly more questions or different questions of the
juror to be struck in contrast to other jurors;
·
Whether other prospective jurors provided
similar answers but were not the subject of a peremptory challenge by that
party;
·
Whether a reason might be disproportionately
associated with race or ethnicity; and
·
If the party has used peremptory challenges
disproportionately against a given race or ethnicity, in the present case or
past cases.
GR37 also specifies a list of presumptively invalid
reasons for striking a prospective juror, noting that the list contains “reasons
for peremptory challenges [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.[1]
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.
Conclusion
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.
[1]
See, e.g., Jeffrey J. Rachlinski
& Sheri L. Johnson, Does Unconscious
Racial Bias Affect Trial Judges, 84 Notre
Dame L. Rev. 1195 (2009).
No comments:
Post a Comment