The Objective Observer: The Washington State Supreme Court’s Remedial Aspirations and Experience on the Ground

Abstract: The Washington State Supreme Court has adopted an “objective observer rule” for addressing whether race impacted jury selection and extended this rule to evaluating all aspects of Washington courts, including jury trials. The objective observer rule allows courts to evaluate whether decisions in those courtrooms could be viewed as the result of racial bias, even where there is no evidence of specific racial animus and in the absence of racial slurs. The rule, which covers a form of disparate impact, has now existed for over half a decade. This Article outlines the Washington State Supreme Court’s development of the objective observer view in a trio of cases and evaluates every decision citing these cases between 2018 and 2024. While it is plain that the objective observer rule has impacted litigation, there is zero evidence that Washington courts have been adversely impacted or that litigants have been undermined in their zealous advocacy by the application of the objective observer test to things like attorney questioning of witnesses or closing arguments. Instead, this Article argues, in view of the gargantuan task that it is to remedy and redress racial bias and its impacts, the objective observer test is a modest step forward to achieving those goals.