In April 2018, the Washington Supreme Court became the first in the nation to adopt a court rule to combat implicit bias in the jury selection process. 2 General Rule 37 (“GR 37”) eliminates the need to raise an inference of purposeful discrimination, lists presumptively invalid reasons for exercising a peremptory strike that are historically associated with racial stereotyping, and uses an objective standard to determine if race or ethnicity could be viewed as a factor in the strike. 3 These changes address growing concerns that the current framework for evaluating biased peremptory strikes has failed to combat discrimination while recognizing that eliminating peremptory strikes altogether may harm the rights of defendants and produce unintended harms. Montana can implement a similar process to prevent biased and discriminatory jury selection. This paper first discusses the history of discrimination in jury selection and the recognized need for reform in Washington and Montana. Next, it outlines the rulemaking process leading to the creation of GR 37 and how the rule addresses unconscious bias. Finally, it presents the available evidence supporting GR 37’s effect and makes recommendations for implementing this process in Montana.
Ellen Boland Monroe, Comment, Washington's General Rule 37 and Montana's Call for Jury Selection Reform, 84 Mont. L. Rev. 2 (2023).