Studies show that the racial makeup of a jury can make the difference between a defendant going home and being put to death. On April 5, the Washington Supreme Court adopted a rule change that seeks to narrow the racial bias gap in jury selection.
During jury selection for a trial, attorneys for the defendant and the plaintiff can use peremptory challenges to dismiss jurors without providing a reason. In Washington, that process now includes a step that the American Civil Liberties Union of Washington (ACLU-WA) says makes it the “first court in the nation to adopt a court rule aimed at eliminating both implicit and intentional racial bias in jury selection.”
General Rule 37 on jury selection is meant to “eliminate the unfair exclusion of potential jurors based on race or ethnicity.” It allows attorneys to call out their counterparts if they feel they are using improper bias in dismissing potential jurors, and turns the decision over to the sitting judge to determine if “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.”
The court can deny the dismissal of the juror if it finds either purposeful discrimination or implicit bias; for the purposes of the decision, the “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.” The court can also object to attempted dismissals. The rule will apply to all jury trials—criminal and civil—in the state starting at the end of April, according to a statement issued by ACLU-WA yesterday (April 9).
The first draft of the rule was created by ACLU attorneys several years ago, and they are happy to see it take effect.
“The court has recognized that the fair and impartial administration of justice requires changing the conversation about racial and ethnic bias in our courtrooms. It has expressly acknowledged the insidious role of implicit and structural bias, and reasons previously considered as acceptable for excluding a juror will now be rejected for their association with bias,” ACLU-WA senior staff attorney Nancy Talner, who helped draft the rule, said in a statement. “This groundbreaking rule for jury selection will reduce the damage done by racial and ethnic bias to the integrity of our judicial system and to communities of color.”
Read the full rule here.