California jury selection expected to get complicated over new rule regarding race and ‘unconscious bias’

Selecting a jury for trials will become infinitely more complex — and, some would argue, woke — in California under a new rule set to take effect on New Year’s Day.

Fox News reported that the rule change is aimed at making it harder “for attorneys to strike prospective jurors from the jury pool out of concern that too many are acting based on bias.”

Under old rules, each side gets a certain number of “peremptory” strikes, which means they can reject a juror without giving any reason. However, a 1986 U.S. Supreme Court decision in Batson v. Kentucky barred the use of those strikes to remove jurors on account of their race, the outlet reported.

But the California rule, which is just the latest in a widening jury selection reform trend embraced mostly by the left, also extends to “conscious or unconscious bias” against a number of other protected classes of persons. The rule would allow opposing attorneys to challenge any peremptory strikes, “attributing bias to many reasons an attorney could give to justify” striking a juror, Fox News reported.

“A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case,” says the rule, which goes on to list 13 potential grounds for eliminating a juror on the assumption the decision is rooted in bias.

That includes eliminating a juror for “[e]xpressing a distrust of or having a negative experience with law enforcement or the criminal legal system” or “a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.”

In addition, the new rule prohibits the dismissal of jurors for “[h]aving a close relationship with people who have been stopped, arrested, or convicted of a crime” and for having kids outside of marriage, not being a native English speaker, for personal appearance or dress, not having a job, being the recipient of government benefits, and other factors, Fox News reported.

California’s rule is actually based on one implemented by the state of Washington — General Rule 37 — in 2018, which won plaudits from the left-wing ACLU.

“This groundbreaking rule for jury selection will reduce the damage done by racial and ethnic bias to the integrity of our judicial system and to communities of color,” said ACLU-Washington senior attorney Nancy Talner at the time.

Both states allow not only counsel but also courts to challenge peremptory strikes.

Other states have either adopted a similar rule or are considering doing so. For instance, Arizona has eliminated peremptory strikes altogether, and that rule takes effect on Saturday as well.

“Connecticut, Kansas, Massachusetts, New Jersey, New York, North Carolina, Oregon and Utah have all considered rules like Washington’s or abolishing peremptory strikes like Arizona, but they have not reached a definitive conclusion,” Fox News reported, adding: “Colorado’s Supreme Court rejected adopting such a Washington-like rule.”

Jon Dougherty


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