Any prior police contact? New state rule deems that a presumptively invalid reason for juror strike
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Washington has become the first state to adopt a rule that expands the ban on race-based peremptory challenges during jury selection.
The new rule, known as General Rule 37, is intended to prevent peremptory strikes based on both implicit and intentional bias, report the Associated Press, a (Tacoma) News Tribune editorial and a press release from the American Civil Liberties Union of Washington.
Peremptory challenges are used to eliminate jurors without cause. The U.S. Supreme Court ruled in the 1986 decision, Batson v. Kentucky, that such challenges cannot be based on intentional racial discrimination.
General Rule 37 says judges shall deny a peremptory challenge if an “objective observer” would view race or ethnicity as a factor in the use of a peremptory strike to eliminate a potential juror. An objective observer is defined 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 the state.
The rule applies to both criminal and civil trials, and it allows judges as well as parties to object to a peremptory challenge. Any discussion after an objection is made must take place outside the presence of the jury panel. During the discussion, the party who hopes to use a peremptory challenge has to explain why it hopes to eliminate the potential juror.
A peremptory challenge is “presumptively invalid” if it has been associated historically with improper discrimination in jury selection. The rule goes on to list several presumptively invalid reasons for a peremptory strike for a potential juror:
- has prior contact with law enforcement officers
- expressed a distrust of law enforcement or a belief that law enforcement engages in racial profiling
- has a close relationship with people who have been stopped, arrested or convicted of a crime
- lives in a high-crime neighborhood
- has a child outside of marriage
- receives state benefits
- is not a native English speaker
The rule also lists other reasons given for peremptory strikes that have been associated with improper discrimination, including allegations that a possible juror was inattentive, failed to make eye contact, or displayed a problematic attitude or body language. Any party planning to use those reasons for a jury strike must provide reasonable notice to the court and the other parties so the behavior can be verified and addressed.
The new rule, adopted in an April 5 order by the Washington Supreme Court, is scheduled to take effect at the end of the month.
ACLU attorneys helped draft the rule several years ago, though the language was fine-tuned by a working group. Its report is here.
