WSR 16-23-014

RULES OF COURT

[November 2, 2016]

The American Civil Liberties Union of Washington, having recommended the proposed new General Rule 36—Jury Selection, and the Court having considered the amendments thereto;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed new general rule as shown below is to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2017. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 2nd day of November, 2016.

Suggested Change to the

Rule 36—Jury Selection

A. Name of Proponent: American Civil Liberties Union of Washington

B. Spokesperson: Sal Mungia, Gordon Honeywell and Thomas and ACLU-WA Cooperating Attorney; and La Rond Baker, ACLU-WA Staff Attorney.

C. Purpose: Proposed General Rule 36 ("GR 36") is a new rule meant to protect Washington jury trials from intentional or unintentional, unconscious, or institutional bias in the empanelment of juries.

In State v. Saintcalle, the Washington State Supreme Court expressed concerns that the federal Batson v. Kentucky test provides insufficient protections to potential jurors of color from biased use of peremptory challenges.1 Batson created a standard under which a court can only sustain a challenge to a peremptory strike after three conditions are satisfied: (1) "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"; (2) the striking party must "come forward with a [race-]neutral explanation' for the challenge"; and (3) the court must "determine if the defendant has established purposeful discrimination.".2 State v. Saintcalle, 178 Wn.2d 34, 42, 309 P.3d 326 (2013) (citations omitted) (alteration in original) (emphasis added).

1 State v. Saintcalle, 178 Wn.2d 34, 36, 309 P.3d 326 (2013). See Batson v. Kentucky, 476 U.S. 79, 106 (1986), 106 S. Ct. 1712, 90 L. Ed. 2d 69 (Marshall, J., concurring) (noting that "'seat-of-the-pants instincts' may often be just another term for [unconscious] racial prejudice"); Miller-El v. Dretke, 545 U.S. 231, 268, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (Breyer, J., concurring) (racial bias "may be invisible even to the prosecutor exercising the challenge") See also Antony Page, Batson's Blind–Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U.L. Rev. 155, 161 (2005) ("[U]nconscious and unintentional" bias may result in racially-motivated peremptory challenges.).

2 Batson, 476 U.S. at 93-94, 96-97, 98. See also Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005).

Batson was the United States Supreme Court's solution to the failures of the previous test for determining whether a peremptory strike was invalid because of bias. However, over the years it has become evident that Batson fails to adequately protect potential jurors and the justice system from biased use of peremptories.3 This is because Batson requires parties to meet an extremely high bar to show that a peremptory challenge was motivated by bias. Batson requires attorneys to allege, and judges to find, purposeful discrimination and fails to acknowledge that bias can be subtle, institutional, or inadvertent.4 The Washington State Supreme Court in Saintcalle explained that "it is evident that Batson, like Swain before it, is failing us."5 The Court recognized there was ample data demonstrating that racial bias in the jury selection process remained "rampant":

Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant in jury selection. In part, this is because Batson recognizes only "purposeful discrimination," whereas racism is often unintentional, institutional, or unconscious. We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.

3 Saintcalle, 178 Wn.2d at 43 (criticizing Swain v. Alabama, 380 U.S. 202, 223-24, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965) (holding that a party alleging discriminatory jury selection must demonstrate a long-standing practice of purposeful discrimination in order to succeed with an equal protection claim), overruled by Batson, 476 U.S. 79).

4 Saintcalle, 178 Wn.2d at 46-49, fn. 3 ("It is now socially unacceptable to be overtly racist. Yet we all live our lives with stereotypes that are ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate them." (citing Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. Rev. 465, 471 (2010))).

5 Id. at 44.

Saintcalle, 178 Wn.2d at 36.

The Saintcalle court based its concerns on "[a] growing body of evidence … that Batson has done very little to make juries more diverse."6 This evidence included empirical studies that indicate that discriminatory jury selection is a problem nationwide.7 It also included the fact that "[i]n over 40 cases since Batson, Washington appellate courts have never reversed a conviction based on a trial court's erroneous denial of a Batson challenge."8

7 See, e.g., Mary R. Rose, The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data from One County, 23 Law & Hum. Behav. 695, 698-99 (1999) (60 percent of peremptory challenges were used against black jurors, who made only 32 percent of the jury pool); Catharine Grosso & Barbara O'Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531, 1550-1557 (2012); Equal Justice Initiative, Illegal Discrimination in Jury Selection a Continuing Legacy, at 12 (Aug. 2010) (80 percent of qualified African Americans peremptorily struck in capital cases in a county that is 27 percent African American), available at http://www.eji.org/files/EJI%20Race%20and%20Jury%20Report.pdf; David C. Baldus et al., The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. Pa. J. Const. L. 3, 52-53, 73, n.197 (2001) (Philadelphia prosecutors struck 51 percent of black jurors versus only 26 percent of non-black jurors); Shamena Anwar et al., The Impact of Jury Race in Criminal Trials, The Quarterly Journal of Economics, at 1017-1055 (May 2012) (having a black member of the venire results in more equitable conviction rates for white and non-white defendants).

8 Saintcalle, 178 Wn.2d at 45-46.

Legal scholars have also long noted Batson's failure to effectively eradicate discrimination in peremptory challenges.9 This failure is especially pressing when one considers issues of unconscious racism.10, 11

9 See, e.g., Andres G. Gordon, Beyond Batson v. Kentucky: A Proposed Ethical Rule Prohibiting Racial Discrimination in Jury Selection, 62 Fordham L. Rev. 685, 686 (1993) ("Attorneys have become adept at rebutting prima facie cases of discrimination by creating 'acceptable' reasons for their strikes."); Matt Haven, Reaching Batson's Challenge Twenty-Five Years Later: Eliminating the Peremptory Challenge and Loosening the Challenge for Cause Standard, 11 U. Md. L.J. Race Religion Gender & Class 97, 97 (2011); Karen M. Bray, Reaching the Final Chapter in the Story of Peremptory Challenges, 40 UCLA L. Rev. 517, 520 (1992); Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol'y Rev. 149, 150 (2010).

10 For commentary on unconscious racism and implicit bias in peremptory challenges, see generally Haven, supra note 9 at 116; Bennett, supra note 9 at 158-165.

11 Haven, supra note 9, at 116.

GR 36 addresses this problem by employing a test that utilizes an objective-observer standard. Under GR 36, the trial court would find a peremptory strike invalid if an objective observer could find that race or ethnicity was a factor for a peremptory challenge. GR 36 also gives trial courts the necessary latitude to protect the justice system from bias by granting courts the freedom to raise objections to a peremptory strike sua sponte. It would also bring greater diversity to juries, so that juries in Washington are more representative of the communities they serve.12 The rule would also improve the appearance of fairness and promote the administration of justice.

12 The absence of non-white jurors matters, as studies indicate that diverse juries tend to consider more perspectives and spend more time deliberating than all-white juries. Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition in Jury Deliberation, 90 J. Personality and Soc. Psych. 597, 609 (2006).

The Washington State Supreme Court has the flexibility to "extend greater-than-federal Batson protections" through its rule-making authority.13, 14 Other states have adopted court rules dealing with the Batson issue.15

13 Saintcalle, 178 Wn.2d at 37 (citing State v. Hicks, 163 Wn.3d 477, 492, 181 P.3d 831 (2008).

14 Id. at 55 (citing State v. Templeton, 148 Wn.2d 193, 212-13, 59 P.3d 632 (2002)) (noting also that a rule "might be the most effective way to reduce discrimination and combat minority underrepresentation in our jury system").

15 See, e.g., N.Y. Code Crim. Proc. § 270.25; Tex. Code Crim. Proc. Art. 35.261; Minn. R. Crim. P. 26.02; La. Code Crim. Proc. Art. 795.

GR 36 preserves the use of peremptory challenges as part of the right to a jury trial while at the same time addressing racial bias in jury selection.16 The comment section provides guidance to the judiciary and attorneys about how to apply the rule. By adopting this rule, Washington will ensure that its justice system is not improperly tainted by bias, protect Washingtonians from discrimination, ensure diversity in juries, and address systemic, institutional, and unintentional racism in jury selection.

16 See Batson, 476 U.S. at 85-86; Saintcalle, 178 Wn.2d at 50. See also Powers v. Ohio, 499 U.S. 400, 409, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is not requested.

(a) Scope of rule. This procedure is to be followed in all jury trials.

(b) A party may object to an adverse party's use of a peremptory challenge on the grounds that the race or ethnicity of the prospective juror could be viewed as a factor in the use of the challenge, or the court may raise this objection sua sponte. When such an objection is made, the party exercising the peremptory challenge must articulate on the record the reasons for the peremptory challenge.

(c) Using an objective observer standard, the court shall evaluate the reasons proffered for the challenge. If the court determines that an objective observer could view race or ethnicity as a factor for the peremptory challenge, the challenge shall be denied.

[1] The purpose of this rule is to eliminate the unfair exclusion of potential jurors based on race. This rule responds to problems with the Batson test described in State v. Saintcalle, 178 Wn.2d 34 (2013), and provides a different standard for determining whether a peremptory challenge is invalid than that provided for in Batson v. Kentucky, 476 U.S. 79 (1986). For purposes of this rule it is irrelevant whether it can be proved that a prospective juror's race or ethnicity actually played a motivating role in the exercise of a peremptory challenge.

[2] An objective observer is one who is aware that purposeful discrimination and implicit, institutional, or unconscious bias have resulted in the unfair exclusion of potential jurors based on race in Washington.

[3] In determining whether an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, the court shall consider the following: (a) 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 type of questions asked about it; (b) whether the party exercising the peremptory challenge asked significantly more questions or different questions of minority jurors than other jurors; and (c) whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party.

[4] Because historically the following reasons proffered for peremptory challenges have operated to exclude racial and ethnic minorities from serving on juries in Washington, there is a presumption that the following are invalid reasons for a peremptory challenge: (a) having prior contact with law enforcement officers; (b) expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling; (c) having a close relationship with people who have been stopped, arrested, or convicted of a crime; (d) living in a high-crime neighborhood; (e) having a child outside of marriage; (f) receiving state benefits; and (g) not being a native English speaker.

[5] The following reasons proffered for peremptory challenges also have historically been used to perpetuate exclusion of minority jurors: allegations that the prospective juror was sleeping, inattentive, 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 those reasons or reasons similar to them as the justification for a peremptory challenge, that party must provide reasonable notice to the court and the opposing party so the behavior can be verified and addressed in a timely manner. A lack of corroborating evidence observed by the judge or opposing counsel verifying the behavior in issue shall be considered strongly probative that the reasons proffered for the peremptory challenge are invalid.