September 2021 Bar Bulletin
By Hon. Theresa Doyle (Ret.)
Say you’re getting ready for trial and your client is a person of color. You have this vague concern that because of racial bias, the jury might not find your client credible or treat your client fairly. But you’re at a loss as to what to do.
Implicit Bias. You are right to be concerned. White juries in criminal trials are more likely to convict Black and Latinx defendants than white defendants on similar facts.1 There is little reason to think that white juries in civil trials are any less biased toward plaintiffs or defendants of color.2 After all, racial bias in society is pervasive, largely unconscious, and widely held across all demographics.3 Results of the Implicit Association Test (IAT)4 taken by millions of people show that 75 percent of test-takers have a pro-white bias.5 Even among Black test-takers, 40 percent show some pro-white bias.6 Jurors bring these biases to court when they report for jury service.
Juror Orientation Video. So, how do you go about addressing race effectively in voir dire without unnecessarily alienating jurors or putting your foot in your mouth? If your trial is in King County or Pierce County Superior Court, the groundwork has already been laid. Jurors in those counties will already have watched a juror orientation video about implicit bias prior to even being assigned to your trial, whether it’s conducted in-person or by Zoom.
About five years ago, a group of smart and forward-thinking King County judges imported a great instructional video for jurors about unconscious bias from the United States District Court for the Western District of Washington.7
Featuring Jeff Robinson, Judge John Coughenour, and others, the video describes visually and in plain language the results of social science research into our unconscious biases based on race, gender, sexual orientation, national origin, and other immutable characteristics. The video explains how such automatic preferences and biases can influence our perceptions and decisions. Judges in King County adopted this revised version of the federal court video, substituting some of our own judges and otherwise improving it, in our view.8
Targeted Voir Dire. So, back to your trial. Your jurors have watched the implicit bias video so are primed on the subject. My advice: don’t drop the ball and heed this cautionary tale:
I presided over a trial with a Black defendant. Before the jury panel arrived in the courtroom, I reminded the lawyers about the juror orientation video and asked if either planned to address racial bias in voir dire. Blank stares. Then, toward the close of the voir dire, one of attorneys posed a common but perilous question: was there anything jurors wished he had asked them but didn’t?
Several jurors piped up in response, the first pondering whether our Black defendant could get a fair trial because there was not even one Black person on the venire and “what with implicit racial bias we learned about in the video and all.” Other jurors then volunteered comments about the pervasiveness of racial bias and the problem of mostly white jury pools. The lawyer who had asked the open-ended question had no follow-up except, “thank you for your comments.”
You don’t have to be that lawyer. You’ve already shown the good sense to read this article.
To backtrack: why does it matter? Addressing implicit bias in jury selection is important because research shows racial bias is most likely to influence the verdict when race plays no active role in the case.9 Like in a garden-variety motor vehicle accident case where one party is white and the other is Black, as contrasted with a race discrimination employment case where race is central in the trial. Counterintuitive? Perhaps not. When race is an obvious issue at trial, jurors may be on guard against racial bias. However, in trials without salient racial issues, jurors may be less likely to monitor their behavior for signs of prejudice, and therefore more likely to render judgments tainted by racial bias.
In other words, it’s the unconscious nature of implicit bias that’s the problem. Hence, social scientists and academics recommend that attorneys “make race salient.” Tackle racial bias up front, in jury selection, lest it come back to bite you in the verdict.
If opposing counsel objects with, “this is not a race case,” cite the authorities in this article and in the video. You shouldn’t have any problem in a Washington court. Our judges are well-versed in the topic from the numerous judicial trainings at conferences over the past decade. If necessary, remind the judge and opposing counsel that the very purpose of voir dire is to uncover bias to use cause and peremptory challenges effectively.
Sample Questions. Best are open-ended questions that probe thought processes and values. You want to spark conversation; “to get jurors to reveal their true beliefs,” Jeff Robinson says.
- Try, “what did you think of the implicit bias video?” Or play devil’s advocate and ask whether implicit bias really exists; or “don’t we pay too much attention to race?”
- Ask what the Confederate flag symbolizes; what’s the big deal about monuments to the Confederacy?
- What is “critical race theory” and why are people so exercised about it?
- If your client is Black, ask jurors their thoughts about systemic racism and whether disproportionate incarceration shows that Black people just commit more crimes (they don’t).
- If your client is a recent immigrant or not a native English speaker, probe attitudes about immigration or whether there is a link between immigration and crime (there isn’t).
- If your client is an Asian-American woman, bring up the recent violence against them and ask jurors for their thoughts.
- Ask jurors to name the usual stereotypes about the race/gender/national origin/sexual orientation of persons like your client.
- Ask about the regularity of social interactions with persons of other races at work, school, in their neighborhood.
- Consider these sample questions inspired by lawyer trainings given by Jeff Robinson: What does it mean to “play the race card?”
- Have you ever witnessed expressions of racial bias, and how did that make you feel?
- What would you do if a fellow juror, during deliberations, were to make a racial slur? Would it matter if the slur was about the [plaintiff/defendant]?
- If you were a party to a lawsuit and upon entering the courtroom discovered that you were the only [insert your client’s race] there, what would be your thoughts, concerns?
The Bottom Line. You can have an intelligent and fruitful conversation with jurors about implicit bias without alienating them or making anyone feel like an idiot. It’s worth the effort, because unconscious bias and stereotypes that lurk below the surface can pose a substantial risk to your client’s case.
“The fact is that every single person in that courtroom has racist thoughts. It’s not a white or Black issue; it’s an American issue,” says Jeff Robinson.
1 Jerry Kang, Judge Mark Bennett, et al., “Implicit Bias in the Courtroom,” 59 UCLA L. Rev. 1124, 1142-43 (2012), https://www.uclalawreview.org/pdf/59-5-1.pdf
2 Id. at 1164.
3 Kristin A. Lane, et al., “Implicit Social Cognition and the Law,” 3 Ann. Rev. L. & Soc. Sci. 427 (2007), https://www.researchgate.net/publication/228189909
4 The race IAT is a test designed by social scientists to measure implicit attitudes and prejudices by having test-takers respond quickly to images of whites and blacks, then recording reaction time. See id., 59 UCLA L. Rev. 1124. The IAT can be found here: https://implicit.harvard.edu/implicit/takeatest.html
5 Cynthia Lee, “Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society,” 91 N.C. L. Rev. 101, 117–18 (2013), https://aasa.org/uploadedfiles/Making-Race-Salient-CynthiaLee.pdf
9 Kang, Bennett, supra, note 1, 59 UCLA L. Rev. at 1184, https://www.uclalawreview.org/pdf/59-5-1.pdf ; Samuel R. Sommers & Phoebe C. Ellsworth, “White Juror Bias: An Investigation of Prejudice Against Black Defendants in the American Courtroom,” 7 Psychol. Pub. Pol’y & L. 201, 255 (2001); Cynthia Lee, “A New Approach to Voir Dire on Racial Bias”, 5 U.C. Irvine L. Rev. 843, 861 (2015), https://www.law.uci.edu/lawreview/vol5/no4/Lee.pdf