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Washington Conviction Reversed Due to Potential Unconscious Bias in Jury Selection

A defendant in a Washington criminal case is entitled to a fair and impartial jury pursuant to both the state and federal constitutions.  Washington court rules allow parties to strike some prospective jurors without a stated reason through peremptory challenges.  A party may not, however, strike a prospective juror for a discriminatory reason.  U.S. Supreme Court case law has developed a framework for analyzing whether there has been improper “purposeful discrimination” in the use of a peremptory challenge.  This analysis, however, does not protect the defendant from the potential of unconscious bias in the selection of the jury.

Washington adopted a rule to address this issue.  General Rule 37 permits a party or even the court itself to object to a peremptory challenge to raise the issue of improper bias.  The party who made the challenge must then articulate their reasons for using the challenge. The court then must determine if an objective observer could see race or ethnicity as a factor, considering the totality of the circumstances.  If so, the court should deny the peremptory challenge.

A defendant recently appealed his conviction after the trial court allowed the prosecution to strike a juror over the defendant’s objection.  According to the appeals court’s opinion, the defendant was charged with first degree kidnapping and second degree assault of his long-term girlfriend, with four firearm enhancements.

At jury selection, there were few racial minorities. Juror 2 was a 23-year-old Target employee with an Asian surname. Like 22 other prospective jurors, he did not indicate any experience with domestic violence in his responses to the written questionnaire.

Each party asked Juror 2 a question during voir dire, with some limited follow-up.  None of the discussion addressed his youth, life experiences, or lack of history with domestic violence.

The state used a peremptory challenge and the defendant objected based on GR 37. The prosecutor explained that they did not believe Juror 2 was acceptable because of his age and his responses.  The prosecutor stated they would not generally select a younger juror for this type of case based on a lack of life experience.  The prosecutor noted that Juror 2 did not have any experience with domestic violence.

The judge originally granted the defendant’s challenge, but subsequently allowed Juror 2 to be stricken, stating that age and lack of experience were a valid basis for a peremptory challenge. The appeals court noted, however, that nine of the jurors who were seated did not report any experience with domestic violence.

The defendant argued there was bias in the use of the peremptory challenge against a racial or ethnic minority. The appeals court noted it could not observe the juror but found an Asian surname was sufficient to raise the issue that an objective observer could perceive him as a racial or ethnic minority.

GR 37 provides a list of nonexclusive factors that the court should consider in determining if an objective observer could perceive race as a factor in the use of the peremptory challenge.  The factors include the type and number of questions asked of the juror and how they compare to the questions the party who used the challenge asked other jurors. The court should also consider whether peremptory challenges were used on other prospective jurors with similar responses. Another factor is whether a reason for the use of the challenge “might be disproportionately associated with race or ethnicity.” Finally, the court should take into account whether the party has a history of disproportionately using peremptory challenge against a particular racial or ethnic group, in the current case or in the past.  The rule also lists certain reasons for the use of a peremptory challenge that are presumptively invalid, including contact with law enforcement and receiving state benefits.

The prosecutor claimed they struck Juror 2 due to his youth and lack of experience with domestic violence. The appeals court found Juror 2 had not been questioned about his life experiences.  Although he had indicated he did not have experience with domestic violence, several other prospective jurors responded the same way and were not the subject of a challenge.

There was little information in the record supporting the prosecutor’s opinion of Juror 2, leaving open the possibility that the prosecutor relied on stereotypes of Asian Americans.  The appeals court pointed to research indicating Asian Americans are commonly stereotyped as having academic strength, “to the detriment of interpersonal skills.”

The appeals court found the state’s explanation was insufficient to overcome the concern that an objective observer could think race or ethnicity was a factor in the juror being stricken.  The juror’s responses were not significantly different from the responses of the other jurors. The appeals court found the prosecutor’s focus on his youth and life experience “played into . . . improper stereotypes. . .”

The appeals court pointed out that its analysis did not mean the prosecutor actually acted from improper discrimination. GR 37 is intended to remove even the appearance of discrimination.

The appeals court reversed the defendant’s convictions and remanded the case for a new trial.

GR 37 is a small step toward addressing one of the many ways racism and unconscious bias can harm a criminal defendant.  If you are facing criminal charges, you need an experienced Washington criminal defense attorney with a thorough understanding of your rights. Schedule a consultation with Blair & Kim, PLLC, by calling our office at (206) 622-6562.

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