Congratulations to our partner and friend, Sandra Widlan,
on her appointment to the King County Superior Court bench.
We will remember and cherish the tenacious trial lawyer
she was and delight in seeing the remarkable jurist
she will become.
- The SGB Family
Supreme Court adopted GR 37,
making it more difficult to use a
peremptory challenge to exclude a
person from serving on a jury because
of his or her race or ethnicity.
While GR 37 makes a number of
changes, the most significant is that it
eliminates the “purposeful discrimination” test. It is difficult for an attorney to
accuse an opposing attorney of having
the intent to racially discriminate and it
is difficult for a judge to determine an attorney’s intent. Doubts will always favor
a finding of the lack of a discriminatory
intent, but GR 37 eliminates the requirement that a judge determine intent.
Under GR 37 an attorney may object,
and the attorney seeking to exclude a
potential juror must give his or her reasons for using the peremptory challenge.
The trial judge will then decide if an
objective person2 could say that the ex-
clusion was because of race or ethnicity.
If yes, then the peremptory challenge
will be disallowed.
GR 37 takes into account that by the
time attorneys use their peremptory
challenges they have had the chance
to remove prospective jurors for bias.
Accordingly, by definition, those prospective jurors remaining can decide
the case fairly.
The Washington Supreme Court has
taken a historic step in adopting GR
37. For too many years courts, academics, and practitioners have complained
about Batson’s shortcomings. Our
court has followed through on the challenge it gave itself in Saintcalle. This
is a much-needed step in addressing
explicit, implicit, and institutional bias
in our justice system. NWL
SALVADOR A. MUNGIA
is a past president of
the Washington State
Bar Association. He
served on the ACLU-W
committee that proposed GR 37 to the
Washington Supreme Court. He can be
reached at email@example.com.
1. GR 37 became effective April 24, 2018.
2. GR 37(f) defines “objective observer”:
“For purposes of this rule, an 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.”