State v. Bell: De Novo Review and Automatic Reversal for GR 37 Violations

Introduction

State v. Bell, 3 Wn.3d ___ (2025), marks the Washington Supreme Court’s most detailed engagement with General Rule 37 (GR 37) since its adoption in 2018. The court consolidates and refines its earlier holdings, decisively holding that alleged violations of GR 37— Washington’s rule addressing implicit racial bias in the exercise of peremptory challenges—are reviewed de novo on appeal and, when found, require automatic reversal and a new trial.

The case arose when the State used a peremptory challenge to strike “Juror 39,” one of only two prospective jurors of colour. Although the prosecutor justified the strike on the ground that the juror had momentarily “not been paying attention,” defence counsel objected under GR 37, contending that race could be viewed as a factor. The trial court denied the objection, accepting the prosecutor’s explanation and relying on the judge’s own impression that the juror “seemed inattentive.” The Court of Appeals reversed. On further review, the Supreme Court affirmed that reversal, clarified the proper standard of appellate review, and spelt out the proper handling of demeanour-based explanations under GR 37.

Summary of the Judgment

Standard of Review: Claims that an objective observer could view race or ethnicity as a factor in a peremptory strike are reviewed de novo. Trial-court “informal factual findings” about demeanour receive no deference.
GR 37 Analysis: A single, momentary lapse of attention—especially one historically linked to discriminatory jury strikes—does not trump the rule’s mandate. Courts must evaluate all circumstances listed in GR 37(g) & (i) and ask whether an objective observer could see race as a factor.
Demeanour-Based Reasons: When a party relies on inattentiveness, sleeping, eye-contact, or similar demeanour-based reasons, GR 37(i) requires reasonable notice and corroboration by the judge or opposing counsel. Absent corroboration, the strike is invalid.
Remedy: Violation of GR 37 is structural error affecting equal-protection rights of defendants and prospective jurors alike; it is not subject to harmless-error analysis. Reversal and remand for a new trial are mandatory.

Analysis

1. Precedents Cited and Their Influence

Batson v. Kentucky, 476 U.S. 79 (1986) – Provided the original constitutional framework for challenging racially motivated peremptory strikes. Bell underscores Batson’s limitations and explains why Washington adopted GR 37 to move beyond Batson’s requirement of proving purposeful discrimination.
State v. Saintcalle, 178 Wn.2d 34 (2013) – First Washington opinion to recognise Batson’s impotence in tackling implicit bias; foreshadowed adoption of GR 37.
State v. Jefferson, 192 Wn.2d 225 (2018) – Detailed the genesis of GR 37 and its goal of rooting out implicit, institutional, and unconscious bias.
City of Seattle v. Erickson, 188 Wn.2d 721 (2017) – Clarified Batson procedures and highlighted the need for reform.
State v. Tesfasilasye, 200 Wn.2d 345 (2022) – First squarely to apply GR 37; hinted that de novo review was appropriate but left the issue open. Bell now makes de novo review explicit and binding.

2. The Court’s Legal Reasoning

Why de novo review?
• GR 37 asks whether an objective observer “could view” race as a factor—an objective inquiry, not a credibility call.
• Reliance on a trial judge’s subjective impressions risks re-inscribing unconscious bias; fresh appellate eyes and a full record best preserve GR 37’s purpose.
• Past experience under Batson, where deferential review produced “rare or nonexistent” reversals, shows the need for stricter scrutiny.
Totality-of-Circumstances Test
The court meticulously applied GR 37(g)’s five illustrative factors:
• Similar responses from unstruck jurors – Several white jurors also needed questions repeated or lost track, yet were not struck.
• Demeanour-based justification is historically suspect – Inattentiveness is listed in GR 37(i) as historically linked to racially motivated strikes.
• Disproportionate impact – Juror 39 was one of only two jurors of colour likely to be empanelled; his removal had a clear discriminatory effect.
GR 37(i) and the Notice/Corroboration Requirement
• The State failed to provide advance notice that it would rely on inattentiveness.
• The judge’s own vague observations did not constitute “additional evidence.” Without corroboration from the opposing party or concrete examples, the reason was invalid.
Automatic Reversal
The court rejected the State’s request for harmless-error review, equating a GR 37 violation with structural error that affects the integrity of jury selection and equal-protection rights.

3. Impact of the Decision

Appellate Practice: Defence counsel now have a clear road-map for GR 37 appeals; prosecutors must build records that can survive de novo scrutiny, including timely notice and corroboration for demeanour-based explanations.
Trial-Court Procedure: Judges must articulate on the record how each GR 37(g) factor was considered and avoid relying on unverified personal impressions.
Jury Diversity & Legitimacy: By lowering the barrier to sustaining objections, Bell is expected to increase the representation of people of colour on Washington juries, enhancing public confidence.
National Dialogue: Bell adds to the growing body of state-level innovations (e.g., California’s AB 3070, Arizona’s abolition of peremptories) and may be cited by other jurisdictions exploring reforms beyond Batson.

Complex Concepts Simplified

Peremptory Challenge: A limited right for each side to excuse a juror without stating a reason, traditionally six in Washington criminal cases.
GR 37: A Washington court rule (effective 2018) requiring courts to deny any peremptory strike that an objective observer could view as racially or ethnically motivated, regardless of intent.
Objective Observer Standard: Hypothetical person aware of history and realities of implicit bias; asks whether race could have been a factor—not whether it was the sole or primary factor.
Demeanour-Based Explanations: Reasons tied to body language (sleeping, inattentiveness, lack of eye-contact) recognised as historically abused to mask discrimination; GR 37(i) imposes strict notice & corroboration safeguards.
De Novo Review: Appellate court re-examines the entire record from scratch, giving no deference to the trial court’s conclusions.
Structural Error: Fundamental flaw affecting the framework of the trial (e.g., biased jury); not subject to harmless-error analysis—automatic reversal required.

Conclusion

State v. Bell cements Washington’s leadership in combating racial bias in jury selection. By mandating de novo review, insisting that demeanour-based reasons be contemporaneously corroborated, and treating violations as structural error, the court strengthens the protective architecture of GR 37. The decision sends a clear message: the days of perfunctory Batson inquiries and deferential appellate review are gone. Litigants must now confront implicit bias with transparent records, and Washington trial judges must err on the side of inclusion when the spectre of racial bias “could” be perceived.