The Colorado Supreme Court has decided to take up a proposal addressing implicit racial bias in jury selection, opening a public comment period for rules that would curb the use of tactics historically used to exclude jurors of color.

Previous efforts to address racial bias have faltered. Last year, the Supreme Court declined to advance a similar set of changes it received from its rules committee, citing a need for further consensus. Then four Democratic lawmakers abandoned their own attempt to enact the proposal legislatively this year, in the face of opposition from all 22 elected district attorneys.

The two-page draft now under consideration would restrict the ability of prosecutors to dismiss, or strike, people of color from jury pools for reasons that, while not explicitly racial, nevertheless correlate with race.

“The proposed rule will increase jury diversity; lead to better and more reliable decision making; increase confidence in the criminal justice system by prompting the elimination of racial bias,” wrote attorney Kevin M. McGreevy to the Supreme Court, “and promote increased juror turnout among under-represented racial and ethnic demographics.”

The current effort to combat race-based juror strikes stems from the U.S. Supreme Court’s landmark 1986 ruling in Batson v. Kentucky. After a prosecutor excused the Black members of a jury pool, leaving an all-white jury to convict the Black defendant, the Supreme Court deemed intentional, race-based discrimination in jury selection unconstitutional.

The ruling gave rise to “Batson challenges,” which enable trial judges to halt the dismissal of jurors of color. If a prosecutor attempts to excuse a juror with a peremptory strike – which typically does not require a reason – a Batson challenge by the defendant forces the prosecutor to explain their actions with a “race-neutral” reason. The trial judge must ultimately weigh the race-neutral reason against the circumstances and decide whether racial discrimination is likely taking place.

Batson challenges, however, may not be effective where the prosecution’s justification for striking a juror is only indirectly linked to race. For example, a prosecutor may dismiss a Black juror who expresses distrust in the police based on his past experiences. Or a Hispanic juror if she seems inattentive or fails to make eye contact.

To that end, the Colorado Supreme Court’s Rules of Criminal Procedure Committee voted 8-4 in July to forward a proposal to the justices that would make it harder to strike jurors of color based on their lived experiences or their demeanor in the courtroom.

“On a number of proposed provisions, there was agreement among the members of the committee. On a number of other provisions, however, there was not,” wrote Court of Appeals Judge John Daniel Dailey, who chairs the rules committee, in an email to the Supreme Court earlier this month.

The proposal deems certain race-neutral justifications as invalid by default, including if a juror has prior contact with law enforcement, believes police engage in racial profiling or lives in a “high-crime neighborhood.” The rule would also require corroboration from the judge or the defense if a prosecutor wishes to strike a juror for demeanor-based reasons, such as their body language or attitude.

Trial judges would not decide whether purposeful racial discrimination is taking place with a juror strike, but instead whether an “objective observer could reasonably view race or ethnicity as a factor.”

“The perception of most of the trial judges on our Committee was that adoption of the proposed rule would lead to more people of color serving on juries,” wrote McGreevy, who led the effort to revive the jury bias proposal in the rules committee.

Washington and California were the first states to adopt similar policies on racial bias. Washington did so through its Supreme Court, and California enacted its rules legislatively. McGreevy explained in his memo that members of the rules committee spoke with a trial judge and a prosecutor in Washington, who both believed the rule has led to an increase in people of color serving on juries in that state.

The Colorado Supreme Court also received a counterproposal from Robert M. Russel, a prosecutor with the Denver District Attorney’s Office and a member of the rules committee. Russel advised it would be better for the Supreme Court “to do nothing than to adopt the latest proposal.”

A key problem Russel saw with the rule change was the prohibition on striking a juror for expressing a mistrust of police officers. Because police testify routinely in criminal jury trials, he argued prosecutors have a legitimate reason for dismissing jurors who are skeptical of law enforcement.

However, the state’s second-highest court has recently weighed in on that issue, landing on the side of protecting jurors to a limited extent. Last week, the Court of Appeals ruled that a Black juror could not be dismissed solely because she had negative experiences with police based on her race.

The Supreme Court has set a deadline of Jan. 25 for the public to submit written comments on the proposed rule change. The justices will hold a hearing on Feb. 7 for those who wish to speak.