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THE LEGAL BRIEF
VOLUME 41, ISSUE 1
A View From The Bench
By Judge Allyson Zipp Thurston County Superior Court
. Greetings and Happy New Year. In this first View of 2023, I am focusing on a developing body of law that is novel to Washington State. I refer to a series of four Washington Supreme Court decisions that address race and ethnicity discrimination using the model incorporated into General Rule (GR) 37. These decisions have made significant changes to practice rules in the affected areas, and it is important for Washington practitioners to be aware of them. Washington ’ s GR 37 governs the peremptory strike process in jury selection. GR 37 directs that if “ an objective observer could view race or ethnicity as a factor in the use of [a] peremptory challenge, ” the challenge “ shall be denied. ” GR 37(e) (emphasis added). The GR 37 “ 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. ” GR 37(f). Through this definition of objective observer, GR 37 “ goes beyond forbidding purposeful discrimination in jury selection by addressing the influence of implicit racial bias. ” State v. Berhe , 193 Wn.2d 647, 664 (2019). Since GR 37 was adopted in 2018, the Supreme Court has employed the GR 37 “ objective observer ” standard to address alleged discrimination based on race and ethnicity in criminal jury verdicts, law enforcement seizures, prosecutorial misconduct, and civil jury verdicts. Individually, each decision has significantly altered the legal landscape to which it applies. Collectively, these four decisions reveal how the Supreme Court is approaching procedural issues of discrimination based on race and ethnicity, particularly with respect to implicit bias. The first decision is State v. Berhe , 193 Wn.2d 647 (2019). Berhe held that a GR 37 - type standard applies when race - based bias is alleged to have been a factor in the jury ’ s verdict. Berhe identified that “[ t]he ultimate question for the court is whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict. ” Berhe , 193 Wn.2d at 665. “ If there is a prima facie showing that the answer is yes, then the court must hold an evidentiary hearing. ” Id. Regarding the prima facie showing, Berhe cautioned that “ courts cannot base their decisions on whether there are equally plausible race - neutral explanations[,] ” explaining there will almost always be such explanations “ because that is precisely how implicit racial bias operates. ” Id. at 666. In 2022, the Supreme Court incorporated the GR 37 “ objective observer ” standard into three additional decisions. State v. Sum , 199 Wn.2d 627 (2022), addressed the test for determining whether a person has been seized by law enforcement for purposes of the state constitution. Under Washington Constitution article I, section 7, a seizure has occurred if “ based on the totality of the circumstances, an objective observer could conclude that the person was not free to leave, to refuse a request, or to otherwise terminate the encounter due to law enforcement ’ s display of authority or use of physical force. ” Sum , 199 Wn.2d at 631. Sum explicitly holds that the race and ethnicity of the person allegedly seized are relevant to this analysis. Specifically, Sum mandates that when applying the seizure test, the objective observer “ is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color ” in Washington. Id. at 630. State v. Zamora , 199 Wn.2d 698 (2022), addressed claims of prosecutorial misconduct, specifically whether a prosecutor ’ s conduct constituted an appeal to jurors ’ potential racial bias during voir dire. The Zamora Court held that the appropriate inquiry is whether an objective observer could view the prosecutor ’ s
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