Race-based Strikes: Expect Fixes for the Problem (and Problems with the Fixes)

by Holland & Hart - Persuasion Strategies
Contact

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.

____________________

Image credit: 123rf.com, used under license

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Holland & Hart - Persuasion Strategies | Attorney Advertising

Written by:

Holland & Hart - Persuasion Strategies
Contact
more
less

Holland & Hart - Persuasion Strategies on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.