It is unacceptable for someone to be the wrong color or the wrong ethnicity to serve on a jury. In modern times, the law says race-based exclusions can’t happen. But the practical reality in the courtroom, particularly some courtrooms and some kinds of cases, they still happen. This is a situation where recognizing the problem isn’t the problem: Peremptory strikes used to stack juries based on race or ethnicity, and to effectively deny jury participation to a group of citizens, is still a very real problem. And the fix for that problem, articulated in the Supreme Court’s 1986 decision in Batson v. Kentucky, has its own problems: The requirement to explain a pattern of strikes is too easily met by providing reasons, with little recourse when those reasons are seen as flimsy and pretextual.

Now, however, one state has stepped up to tighten its rules, and we can expect other states and the federal system to be paying attention. Earlier this month, the Washington Supreme Court passed a new rule to address both intentional and implicit racial bias in jury selection in all civil and criminal jury trials in the state. Drafted by ACLU attorneys, General Rule 37 adds more teeth to Batson’s prohibition by also targeting “implicit, institutional, and unconscious” racial discrimination. According to the rule, if an “objective observer” — which is specifically defined as one who is “aware that implicit, institutional, and unconscious biases” result in unfair exclusion — could view race or ethnicity as a factor in a party’s use of the peremptory strike, then that strike should be successfully challenged by the other party or by the judge. I believe that every litigator and consultant involved in selecting juries should take note of this development. In addressing a form of discrimination that has resisted effective solution, it is pointing in the right direction. However, there are some potential challenges with this approach. And most practically for litigators and consultants, this persistent issue underscores the need to have a good reason for your strikes and one that can be effectively communicated.

It Is the Right Direction

The parties aren’t the only ones with a stake in the civil litigation system. For potential jurors who feel systematically excluded from certain kinds of cases, it can be a civil rights issue. Even more importantly, the perceived fairness and inclusiveness of the jury system is key to the legitimacy and perhaps the survival of the civil and criminal jury trial. Viewed from that perspective, Washington state’s new rule is a step in the right direction. As long as courts are perceived as just giving lip service to the prohibition on stacking juries based on race or ethnicity, as long as the court seems to just be accepting any excuse at all for a pattern of strikes, the trial system comes across as just another power game and not a form of justice. Adding teeth to a prohibition on pretext-driven strikes is a good step. Addressing the problem as a form if implicit bias by counsel is also productive, since it is unlikely that lawyers believe that they are flat-out lying to the court when they give a race-neutral reason for an apparent pattern of race-based strikes.

But a Potentially Troubling Way to Get There

There is one part of the rule that is is likely to generate some controversy and concern from trial lawyers on both sides: General Rule 37 identifies some factors that are presumptively invalid, potentially including factors that could be a source of real bias. In making the determination of whether the reason constitutes unfair exclusion, among the factors the court should consider are, “whether a reason might be disproportionately associated with a race or ethnicity.” The text of the rule continues: “Because historically the following reasons for peremptory challenges have been associated with improper discrimination in jury selection in Washington State, the following are presumptively invalid reasons for a peremptory challenge: (i) having prior contact with law enforcement officers: (ii) expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling: (iii) having a close relationship with people who have been stopped, arrested, or convicted of a crime…”

The concern is that setting these and other reasons into a presumptively off-limits category signals a move from “Don’t Strike based on race” to “Don’t Strike based on any factors that correlate with race.” If a factor indicates a bias that is real, but falls outside that which would lead to a successful cause challenge (e.g., because a potential juror cannot reliably self-diagnose their bias, or will not say the magic words, “I cannot be fair”), then the party who is disadvantaged by that bias simply loses the right to address it.

And a Reminder that You Need a Good Foundation

What it may come down to, both as a better application of rules like Washington’s as well as a better practice by attorneys exercising strikes, is being much more clear and grounded about what counts as a good reason. A feeling, a whim, a superstition about certain kinds of jurors, or even a general “experience,” are entrees to implicit bias. For that reason, the Rule rightly places a bias against strikes justified by vague reference to a potential juror’s conduct, attitude, or body language. But a demonstrated connection between a particular experience or attitude and a bias against a party in a case should stand a better chance of being accepted as a reason for strikes. So when the litigator steps up to the bench to answer the judge’s or the other party’s objection, it is best if you are prepared to say,

Your honor, this strike is not motivated by any bias on our part, implicit or explicit. Rather, it is based on our own observations, and our own research, on which leads to bias in this particular case. Specifically…

The more you’re ready to talk, when you need to, about the reasons for the strike, and the more those reasons are grounded in real observations and connections and not hunches or feelings, the more you are able to respond to Batson challenges and to adapt to new rules and judicial expectations.

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