Rethinking Article I, Section 9: State Protections Against Self-Incrimination in the Wake of GR 37

Abstract: When adopted by Washington courts in 2018, General Rule 37 marked a significant advance in the fight against racial discrimination. Modifying the third step of Batson v. Kentucky, GR 37 requires that peremptory challenges must be denied if an “objective observer” could view race or ethnicity as a factor in the strike. Applying the objective observer standard to contexts beyond jury selection—such as evaluation of jury verdicts, seizures of persons, and prosecutorial misconduct—has led to major statewide victories toward establishing a more equitable justice system. However, courts have not granted all requests to extend the objective observer standard to other contexts. Most notably, Division III of the Washington Court of Appeals recently rejected a request to apply the objective observer standard in construing the privilege against self-incrimination in custodial police interrogations. Its decision can be attributed to the fact that prior successful applications of the objective observer standard relied upon state law; in contrast, state courts apply Fifth Amendment jurisprudence in the custodial interrogation context. This is because, in outdated precedents, the Supreme Court of Washington interpreted article I, section 9 of the Washington State Constitution—which provides for the privilege against self-incrimination—as being only as protective as the Fifth Amendment. This Comment advances two arguments: (1) article I, section 9 ought to be interpreted as being more protective than the Fifth Amendment, and (2) the objective observer standard should be applied to the custody analysis governing when law enforcement must provide an advisal as required under Miranda v. Arizona.