State v. Hogan: GR 37 Preservation by “Simple Citation,” Corroboration Bar for Demeanor Reasons, and Rebuttable Presumption When GR 37(h) Reasons Are Used

A. Precedents Cited

1) The backdrop: why GR 37 exists

The opinion situates GR 37 as Washington’s response to the inadequacy of federal protections against discriminatory peremptory challenges. It cites: State v. Bell, State v. Pierce (plurality opinion), and State v. Saintcalle (plurality opinion), abrogated in part on other grounds, City of Seattle v. Erickson. These decisions reflect Washington’s sustained critique that Batson v. Kentucky has been ineffective in practice.

2) Standard of review and demeanor skepticism

The court relies heavily on State v. Bell to reaffirm de novo review of GR 37 rulings and to emphasize that trial-court subjective impressions of demeanor receive no special deference when GR 37’s safeguards are not satisfied.

3) Preservation and appellate review doctrines

For ordinary preservation principles, the court cites State v. Kalebaugh. For interpreting court rules like statutes, it cites State v. Hawkins, State v. George, In re Disciplinary Proc. Against King, and State v. Chhom, then draws on interpretive methodology cases including Ass'n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., Dep't of Ecology v. Campbell & Gwinn, LLC, and State v. Stump. When the plain text is ambiguous, the court consults history under Pac. Nw. Shooting Park Ass'n v. City of Sequim, Am. Cont'l Ins. Co. v. Steen (plurality opinion), and Five Corners Fam. Farmers v. State.

To support the proposition that courts may reach racial-bias claims first raised on appeal, the court cites State v. Zamora (quoting State v. Monday and citing Peña-Rodriguez v. Colorado), plus cases applying relaxed preservation rules for race-based prosecutorial misconduct: State v. Bagby, State v. Bellerouche, State v. Darraji, State v. Ibarra-Erives, and In re Pers. Restraint of Skone. It also cites In re Pers. Restraint of Rhone (recalling a mandate to address racial bias in jury selection) and references “Hawkins, 200 Wn.2d at 501” for the proposition that individualized evidence of racial bias is not required before considering such arguments on appeal.

4) GR 37 doctrine and development

The court references GR 37’s drafting history and its “Final Report,” consistent with its approach in State v. Tesfasilasye and State v. Jefferson (plurality opinion). It also cites State v. Quismundo to stress that trial courts must follow the law regardless of party argument, though the court ultimately holds the particular misdirected argument here thwarted preservation.

For broader context on misapplying GR 37 to only jurors of color, the majority cites State v. Matamua.

5) RAP 10.8 and additional authorities

On RAP 10.8, the court rejects the Court of Appeals’ reliance on O'Neill v. City of Shoreline and instead follows the text of RAP 10.8 as confirmed by Futurewise v. W. Wash. Growth Mgmt. Hr'gs Bd. and State v. Luna.

6) Dignity/autonomy references in a jury-selection context

Although not central to the GR 37 holding, the opinion cautions against speculative and unnecessary discussion of gender identity, citing Obergefell v. Hodges and Lawrence v. Texas for dignity and autonomy principles.

7) The concurrence’s preservation framing

Justice Mungia’s concurrence relies on State v. Kirkman for preservation and references RAP 2.5(a)(3) (manifest constitutional error), arguing the majority should not reach the unpreserved GR 37 race claim.

B. Legal Reasoning

1) What GR 37 targets: juror-race discrimination, not viewpoint policing tied to defendant’s race

The court resolves the parties’ threshold dispute about the scope of GR 37: it is aimed at eliminating decisions to remove a prospective juror based on the juror’s race or ethnicity “(whatever that race or ethnicity might be),” not at preventing removal of jurors because their views may be sympathetic to a defendant of a particular race. This matters because juror 40 was white, and Hogan’s theory was that striking juror 40 for acknowledging racism “implicated” Hogan’s Blackness. The court holds GR 37’s text, structure, and history focus on discrimination against jurors based on their own protected status.

2) Preservation: “GR 37” is enough—unless counsel’s follow-on argument negates the point

The court reads GR 37(c) (“The objection shall be made by simple citation to this rule”) in light of the drafting history: the workgroup intentionally lowered the threshold for objection and rejected a requirement to “articulate” the basis. Thus, merely stating “GR 37” can preserve the issue.

But the majority draws a crucial boundary: while GR 37 requires only a citation, counsel here did not merely fail to elaborate—counsel affirmatively redirected the court to a non-GR 37 ground (gender identity), “invited the trial court to address only a non-GR 37 issue,” and thereby failed to preserve the race/ethnicity claim. In effect, the “simple citation” rule is not a license to cite GR 37 while litigating a different discrimination theory.

3) Discretionary review despite nonpreservation

Despite finding nonpreservation, the court reaches the issue, analogizing to Washington decisions that treat racial bias as uniquely corrosive to fair adjudication (State v. Zamora; State v. Monday; Peña-Rodriguez v. Colorado). The majority frames this as consistent with Washington’s willingness to relax procedural bars to confront racial bias in the justice system, including in jury selection (In re Pers. Restraint of Rhone).

The concurrence rejects that step, emphasizing the systemic costs of reviewing unpreserved issues: lost trial-level correction, hindered factual development, and a potentially inadequate record, and noting Hogan did not adequately argue manifest constitutional error under RAP 2.5(a)(3).

4) GR 37(i): demeanor reasons are invalid without notice and corroboration

The State and the trial court relied on claims that juror 40 was uncomfortable, reticent, and struggled to articulate thoughts. Under GR 37(i), demeanor-related reasons (sleeping, inattentive, body language, confused answers) historically correlate with discrimination and are therefore policed through a procedural safeguard: the striking party must give notice so behavior can be verified, and lack of corroboration by the judge or opposing counsel “shall invalidate” the reason.

Applying State v. Bell, the court holds there was no notice, no corroboration, and the transcript did not support the negative characterization; therefore, those demeanor-based justifications could not be credited on review.

5) GR 37(h): presumptively invalid reasons create a rebuttable presumption toward finding a violation

The court accepts that striking a juror for expressing distrust of law enforcement or believing officers engage in racial profiling is a reason enumerated in GR 37(h)(ii), making it “presumptively invalid.” Importantly, the opinion clarifies the functional consequence: when a party relies on a GR 37(h) reason, the “presumptive answer” to the ultimate GR 37(e) question is “yes”—an objective observer could view race or ethnicity as a factor.

But the presumption is rebuttable. Courts must still evaluate “the totality of circumstances” under GR 37(e) and GR 37(g), including comparative juror analysis (similar answers by seated jurors), the pattern of questioning, and any disparate impact in strikes.

6) Merits: totality rebutted the presumption here

After excluding demeanor reasons under GR 37(i), the court identifies a record-supported, permissible rationale: juror 40 requested private questioning and declined to discuss certain political views in the group, supporting the State’s concern about willingness to speak in a deliberative group setting (treated as distinct from “demeanor”).

The court also stresses comparative context: the State asked many jurors similar questions about race and policing; jurors expressing similar concerns were both seated (including jurors of color) and struck (including white jurors 33 and 34). The record did not show disproportionate strikes against jurors of color. Considering the whole pattern, the court holds an objective observer could not view race as a factor in striking juror 40.

7) RAP 10.8: no “new authority only” requirement

The court rejects the Court of Appeals’ view that Statements of Additional Authorities are limited to authorities decided after briefing. RAP 10.8 requires only that the authority relate to a point made in briefing or argument, with an explanatory pinpoint. The majority relies on Futurewise v. W. Wash. Growth Mgmt. Hr'gs Bd. and echoes State v. Luna.

C. Impact

1. Clearer preservation practice under GR 37: Counsel may preserve by saying “GR 37,” but Hogan warns that immediately litigating a different discrimination theory can effectively forfeit the GR 37 race/ethnicity claim. This will likely influence trial lawyers to either (a) state “GR 37” and stop, or (b) ensure any elaboration remains tethered to race/ethnicity and the “objective observer” test.
2. Stricter discipline on demeanor explanations: The decision operationalizes GR 37(i) as an evidentiary/procedural gatekeeper: absent contemporaneous notice and corroboration, demeanor rationales are dead on arrival on appeal—particularly under de novo review mandated by State v. Bell.
3. GR 37(h) presumption becomes more “rule-like”: By stating that reliance on a GR 37(h) reason makes the “presumptive answer” to GR 37(e) “yes,” the opinion gives litigants and trial courts a clearer starting point. But by emphasizing rebuttal through totality, it also signals that enumerated reasons do not automatically compel denial where the record shows consistent questioning, mixed strike outcomes, and legitimate nonbarred rationales.
4. GR 37 applies regardless of the juror’s race: The analysis rejects any notion that GR 37 is only for jurors of color and confirms the rule’s formal race-neutral application (protecting any juror from race-based exclusion), while recognizing the historical impetus was discrimination against jurors of color.
5. Appellate discretion to reach unpreserved racial-bias claims remains live—and contested: The majority’s approach, contrasted with Justice Mungia’s concurrence, foreshadows future disputes about when appellate courts should bypass preservation barriers in jury-selection bias claims.
6. RAP 10.8 practice broadened: Appellate litigants may use Statements of Additional Authorities for relevant authorities even if they predate briefing, so long as they relate to an argued point and provide the required explanation and pinpoint citations.

D. Complex Concepts Simplified

Peremptory challenge

A tool allowing each side to remove certain prospective jurors without proving “cause.” Because it can mask bias, GR 37 regulates how peremptories operate when race/ethnicity discrimination may be involved.

Voir dire

The jury selection process where jurors answer questions (sometimes via questionnaires) to determine impartiality and fitness to serve.

GR 37 “objective observer” test (GR 37(e))

The court does not ask whether the lawyer intended to discriminate. It asks whether an objective observer could view race or ethnicity as a factor in the strike, considering implicit bias and historical patterns.

“Presumptively invalid” reasons (GR 37(h))

Certain explanations—like distrust of law enforcement or belief in racial profiling—are flagged because they have historically been used to exclude jurors of color. In Hogan, using such a reason pushes the analysis toward finding a violation, unless rebutted by the totality of circumstances.

Demeanor-based reasons and corroboration (GR 37(i))

Claims like “they looked uncomfortable,” “failed to make eye contact,” or “seemed confused” are easy to assert and hard to verify. GR 37(i) requires advance notice and corroboration; without it, those demeanor claims cannot justify the strike.

Preservation of error

Generally, an appellate court reviews only issues properly raised at trial so the trial court can correct them. GR 37 modifies this by allowing a “simple citation” objection—but Hogan holds that arguing a different theory can still fail to preserve the GR 37 race claim.

Statement of Additional Authorities (RAP 10.8)

A short filing pointing the appellate court to additional cases/authorities related to arguments already made, with an explanation and pinpoint citation. It is not limited to newly decided cases.