Washington General Rule (‘GR’) 37 was enacted in 2018 to address the danger of implicit racial bias in the use of peremptory challenges during jury selection at the beginning of trial. A “peremptory challenge” is when a party is permitted to exclude a prospective juror from being empaneled without justification. In contrast, a challenge “for cause” requires a party to articulate a specific and permissible reason for excluding a potential juror. RCW 4.44.130 authorizes both for cause and peremptory challenges. This statute is reprinted at the end of this article*. Given this statutory framework, the application of GR 37 has become hotly contested. GR 37 is reprinted here.
(a) Policy and Purpose. The purpose of this rule is to eliminate the unfair exclusion of potential jurors based on race or ethnicity.
(b) Scope. This rule applies in all jury trials.
(c) Objection. A party may object to the use of a peremptory challenge to raise the issue of improper bias. The court may also raise this objection on its own. The objection shall be made by simple citation to this rule, and any further discussion shall be conducted outside the presence of the panel. The objection must be made before the potential juror is excused, unless new information is discovered.
(d) Response. Upon objection to the exercise of a peremptory challenge pursuant to this rule, the party exercising the peremptory challenge shall articulate the reasons the peremptory challenge has been exercised.
(e) Determination. The court shall then evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge. The court should explain its ruling on the record.
(f) Nature of 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.
(g) Circumstances Considered. In making its determination, the circumstances the court should consider include, but are not limited to, the following:
(i) the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the types of questions asked about it;
(ii) whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors;
(iii) whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party;
(iv) whether a reason might be disproportionately associated with a race or ethnicity; and
(v) whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases.
(h) Reasons Presumptively Invalid. 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;
(iv) living in a high-crime neighborhood;
(v) having a child outside of marriage;
(vi) receiving state benefits; and
(vii) not being a native English speaker.
(i) Reliance on Conduct. The following reasons for peremptory challenges also have historically been associated with improper discrimination in jury selection in Washington State: allegations that the prospective juror was sleeping, inattentive, or staring or failing to make eye contact; exhibited a problematic attitude, body language, or demeanor; or provided unintelligent or confused answers. If any party intends to offer one of these reasons or a similar reason as the justification for a peremptory challenge, that party must provide reasonable notice to the court and the other parties so the behavior can be verified and addressed in a timely manner. A lack of corroboration by the judge or opposing counsel verifying the behavior shall invalidate the given reason for the peremptory challenge.
GR 37 guides the process for evaluating a party’s use of a peremptory challenge to determine if an objective observer – not the trial judge – could think the challenge was influenced by implicit racial or ethnic bias. Mr. Bell was charged with several violent crimes. The Defense raised a GR 37 objection during jury selection about the State’s use of a peremptory against a prospective juror who was one of only two persons of color remaining on the potential panel. The State’s articulated reason to exercise its’ peremptory was that the potential juror was not paying attention when responding to questions and had admitted to losing track of the line of questioning (the trial transcript supports this conclusion). The trial judge denied the GR 37 objection, based on the juror’s admission and the judge’s own impressions of the juror’s demeanor.
Mr. Bell was convicted. He appealed. The Court of Appeals concluded GR 37 was violated, and reversed his conviction. The State appealed this reversal.
The WA Supreme Court upheld the reversal on different grounds, and provided a standard of review for appeals on GR 37 rulings. The standard of review is de novo, meaning ‘anew’, as if the appellate court was hearing the GR 37 challenge for the first time. This is because the “inquiry here is whether an objective observer could view race or ethnicity as a factor” in use of a peremptory challenge, State v. Bell, No. 103077-1 2025 WL 1901925 at *1 (Wash. July 10, 2025)(emphasis added). Could view race is a very ascertainable standard. The Supreme Court held this standard must be considered, and if those circumstances demonstrate to an “objective observer” that race could be viewed as a factor in attempted removal, then a “particularly cautious approach” is required. A view of the total circumstances here found that race was a factor in the State’s use of the peremptory. GR 37 was violated; such a violation required a complete reversal of Mr. Bell’s convictions.
Justice Johnson’s plurality opinion is 21 pages. Justice Yu’s concurring opinion calling for elimination of peremptory challenges is 5 pages. Justice McCloud’s concurring opinion, written to respond to Judge Yu’s call for elimination of peremptories, is 9 pages. Our newest Justice, Mungia, weighed in on concurrence with a 37 page opinion!
Here are three rulings which appear important at this point in time from Justice Johnson’s plurality opinion:
(1) The “could view” standard must be used by trial judges to deny juror removal and sustain a GR 37 objection when the “effect is discriminatory, regardless of whether there was a discrimination purpose”, I.d. at 14. ‘Could view’ was the articulated standard coined in State v. Tesfasilasye, 200 Wn. 2d 345 (2022). It is an objective standard. An “objective observer is one who 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. I.d., at 14, citing GR 37(f).
(2) The potential juror the State sought to remove was one of only two persons of color; the juror’s removal would have a discriminatory effect regardless of the State’s intent.
(3) Asking that a question be repeated, as this juror did upon admitting he was not paying attention at that moment, cannot be definitively considered as an attention lapse. It’s more likely “reflects a concern about how to respond”, I.d. at 16. Inattentiveness has been historically viewed as often connected with racial discrimination and is specifically addressed in GR 37. See GR 37(g)(iv).
This case is one of “optics” (I.d. at 17); how it looks to 100 people watching from the sidelines (here, the ‘sidelines’ is an appellate court who has the “benefit” of all the transcripts, I.d. at 11). Justice Johnson states “the Court must consider the optics of the challenge from an objective observer’s position”, i.e. only one person of color would have been left, I.d. at 17.
In a previous blog article, I wrote about my own recent trial experience as a defense lawyer in a high stakes child rape case in which I sought to remove a potential juror who was a person of color. Unlike the State’s challenge in Mr. Bell’s case. I had very specific reasons for the sought-after removal; fortunately taking good notes. I had a better reason than inattentiveness; the potential juror was clear that she might be unduly influenced by a child witness. Ultimately, my challenge was successful. It is important to consider how GR 37 may be used both by the State or defense to affect the composition of the jury.