If you are going to trial with a client of color, you should worry about juror racial bias. In criminal trials, evidence shows that white juries are more likely to convict black and Hispanic defendants than white defendants on similar facts.1
In the civil context, there is little reason to think that white juries are any less biased toward plaintiffs or defendants of color.2 That’s because implicit racial bias is pervasive and afflicts all of us, whether juror, lawyer or judge.3
Studies using the Implicit Association Test (IAT)4 document these negative attitudes and stereotypes about people of color, and that they are predictive of discriminatory behavior.5 Millions of people have taken the IAT, and of those who have taken its race version, 75 percent show a pro-white bias.6 Of African-American test-takers, 40 percent show a pro-white bias.7
Racially diverse juries do a better job than do all-white juries of rendering verdicts untainted by bias. Studies with mock juries show that when there is racial diversity, jurors spend more time deliberating, more time analyzing the evidence and evidentiary gaps, consider more perspectives, and make fewer mistakes.8 The mere presence of persons of color in the jury pool, even if the jury ends up being all white, has an ameliorative effect on jurors’ implicit racial bias.9
So, how can we increase jury diversity and decrease implicit racial bias?
The Jury Pool
The analysis begins with the jury pool, the front end of the pipeline to the jury box. By state law, counties in Washington compile jury pools with lists, updated annually, of registered voters, licensed drivers and holders of identification cards.10 Studies show that persons of color are underrepresented on voter lists, which would limit the pool of non-white jurors right off the bat.11
The question then becomes whether the juror “yield,” i.e., those who show up for jury duty in response to the summons, is lower for minorities and, if so, why. The Washington Minority and Justice Commission is seeking an answer to this question. A demographic survey of 30 courts in Washington is currently under way to determine the race and ethnicity of jurors who appear for jury duty.12 The results of that survey could lead to legislative and policy recommendations about how to close any front-end leaks in the pipeline.
Race-Based Peremptory Challenges
When jurors of color appear at the courthouse and are sent to a courtroom, they are vulnerable to exclusion from the jury by racially biased use of peremptory challenges. In Batson v. Kentucky,13 the U.S. Supreme Court proscribed “purposeful discrimination” in the use of peremptory challenges against jurors of color.14
A Batson challenge to a peremptory juror strike requires: 1) a prima facie showing of purposeful discrimination; 2) shifting of the burden to the striking party to offer a race-neutral explanation; and 3) determination by the court whether the challenger has established purposeful discrimination.
In State v. Saintcalle,15 our Supreme Court acknowledged that, despite Batson, racism in the exercise of peremptory challenges is rampant, and concluded that Batson was inadequate to address unintentional, unconscious, and implicit racial bias.16 The Court found, “it is evident that Batson, like Swain before it, is failing us,” and suggested a court rule as a possible solution to strengthen protections against race-based peremptory challenges more effectively than does Batson.17
Proposed General Rule 36 is such a rule.18 It would replace the subjective intent required under Batson with a more workable objective standard. It provides, “if an objective observer could view race or ethnicity as a factor for the peremptory challenge, the challenge shall be denied.” An objective observer, according to Comment 2, is a person “aware that purposeful discrimination and implicit, institutional, or unconscious bias have resulted in the unfair exclusion of potential jurors based on race in Washington.”
The intent or motivation of the striking party would be irrelevant under this standard. Other comments to the proposed rule flesh out factors for courts to consider in applying the objective observer standard.19
The proposed rule would obviate probing the striking attorney’s intentions. Racial motivation is awkward to allege against a fellow member of the bar and difficult to prove.20 The “practical burden” under Batson is to “make a liar” out of opposing counsel.21
The other obvious problem with the Batson test is the reluctance of trial judges to reject the striking attorney’s justification. “Any neutral reason, no matter how implausible or fantastic, even if it is silly or superstitious, is sufficient to rebut a prima facie case of discrimination,” one judge noted.22 An objective standard would solve those problems.
The Supreme Court Rules Committee will be reviewing GR 36 and is expected to send it out for comment. The bar will have an opportunity to debate and comment on the proposed rule. GR 36 was the subject of a presentation in September at the judges’ annual fall conference, and engendered lively debate.23
Implicit Juror Bias
So, what should be done about the implicit racial bias that jurors bring to court with them?24 Somewhat counterintuitively, research shows that implicit racial prejudice is most influential in trials where race is not an overt issue in the case:
When the case is racially charged, jurors — who want to be fair — respond by being more careful and thoughtful about race and their own assumptions and thus do not show bias in their deliberations and outcomes. By contrast, when the case is not racially charged, even though there is a Black defendant and a White victim, jurors are not especially vigilant about the possibility of racial bias influencing their decision-making.25
In other words, the unconscious nature of implicit bias poses the problem. This is why social scientists and academics who have studied the issue recommend that courts must “make race salient.” What this means is to make jurors aware of potentially racist attitudes.26 Fortunately, the research shows that jurors’ awareness of their implicit racial bias tends to minimize its effects.27
There are three main stages at which juror implicit bias could be addressed: juror orientation, jury instructions and voir dire,28 which will be addressed in the second part of this article.
Judge Theresa Doyle has been on the King County Superior Court bench since 2005. She also served on the Seattle Municipal Court from 1998 to 2004. Judge Doyle works on criminal justice reform on behalf of the Washington Minority & Justice Commission and the Superior Court Judges Association (SCJA).
1 Jerry Kang, Judge Mark Bennett, et al., “Implicit Bias in the Courtroom,” 59 UCLA L. Rev. 1124, 1142 (2012).
2 Id. at 1164.
3 Kristin A. Lane, et al., “Implicit Social Cognition and the Law,” 3 Ann. Rev. L. & Soc. Sci. 427 (2007). Assuming jurors have biases similar to those of the rest of the population is called “juror unexceptionalism.” See Kang, supra, note 1, 59 UCLA L. Rev. at 1144. Judges who took the IAT showed implicit attitudes favoring whites over blacks, similar to the rest of the population. Id. at 1146.
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 record reaction time. See id., 59 UCLA L. Rev. 1124.
6 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).
8 Samuel R. Sommers, “On Racial Diversity and Group Decision-Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations,” 90 J. Personality & Soc. Psych. 597 (2006). This result follows from the research that group decision-making, in general, benefits from more heterogeneity of membership. See Christine S. Carbone, et al., “Diversity and the Civil Jury,” 55 Wm. & Mary L. Rev. 837, 838 (2014); accord, Sommers, 90 J. Personality & Soc. Psych., at 606.
9 A study of felony jury trials in Florida over a 10-year period revealed that the presence of at least one black person in the jury pool substantially reduced the conviction rate for black defendants, even when the seated jury was all white. Shamena Anwar, et al., “The Impact of Jury Race in Criminal Trials,” 127 Q. J. Econ. 1017 (2012). Similarly, studies of mock juries concluded that the presence of black jurors in the jury pool reduced the likelihood of white jurors to believe, at the close of the evidence but before deliberations, that the black defendant was guilty. Samuel R. Sommers, “Determinants and Consequences of Jury Racial Diversity,” 2 Soc. Issues & Pol’y Rev. 65, 87 (2008).
10 GR 18; RCW § 2.36.054.
11 Leslie Ellis & Shari Diamond, “Race, Diversity, and Jury Composition: Battering and Bolstering Legitimacy,” 78 Chi.-Kent. L. Rev. 1033, 1054 (2003).
12 Studies of juror yield from other states show a disproportionate loss of minorities due to the higher geographic mobility associated with lower incomes, and the overrepresentation of minorities among lower income people. More summonses were returned “undeliverable.” “Systematic Negligence in Jury Operations: Why the Definition of Systematic Exclusion in Fair Cross Section Claims Must Be Expanded,” 59 Drake L. Rev. 761, 774 (2011). Analyzing the representative quality of juror source lists and jury pools is complex, and beyond the scope of this article. See Samuel R. Sommers, “On the Obstacles to Jury Diversity,” available at www.thejuryexpert.com//wpcontent/uploads/SommersTheJuryExpert2009Volume21No.1.pdf.
Of note is that Washington, like most states, statutorily bars from jury service any person with a felony record until completion of all conditions of sentence, including paying all legal financial obligations, and receipt of a certificate of discharge. RCW § 2.36.070(5); RCW § 9.94A.637. Racial minorities are over-represented in this group. Also statutorily excluded from juries are persons “not able to communicate in the English language.” RCW § 2.36.070(4).
13 476 U.S. 79 (1986).
14 Though based on the Sixth Amendment right to fair trial and 14th Amendment Equal Protection Clause, Batson also rested on the juror’s constitutional right not to be excluded from jury service based on race. 476 U.S. at 87. Batson has been extended to use of peremptory challenges based on gender, JEB v. Alabama, 511 U.S. 127 (1994), and sexual orientation, SmithKline v. Beecham Corp., 740 F.3d 471 (9th Cir. 2014).
15 178 Wn.2d 34, 36 (2013).
16 The Court noted that “peremptory challenges have become a cloak for race discrimination,” according to a report by the Equal Justice Initiative and that “[i]n over 40 cases since Batson, Washington appellate courts have never reversed a conviction based on a trial court’s erroneous denial of a Batson challenge.” Id. at 45–46.
17 Id. at 44, 55. Justice González, echoing justices Marshall and Breyer in Batson, called for abolishing peremptory challenges entirely. Id. at 51–52, 74 (González, J., concurring). Others have suggested an asymmetrical allocation of peremptory challenges, giving more to the defense and fewer to the prosecution. Anna Roberts, “Asymmetry as Fairness: Reversing a Peremptory Trend,” 92 Wash. U. L. Rev. 1503 (2015).
18 Proposed GR 36 was recently submitted to the Washington Supreme Court by the American Civil Liberties Union (ACLU) and attorney Sal Mungia of Gordon, Thomas and Honeywell.
19 Comment 3, for example, provides:
In determining whether an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, the court shall consider the following: (a) the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the type of questions asked about it; (b) whether the party exercising the peremptory challenge asked significantly more questions or different questions of minority jurors than other jurors; and (c) whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party.
20 Mark W. Bennett, “Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions,” 4 Harv. L. & Pol’y Rev. 149, 163 (2010).
21 State v. Munson, 774 S.W.2d 778, 780 (Tex. Crim. App. 1989).
22 Bennett, supra, note 20, at 163.
23 Proposed GR 36 has been revised to encompass peremptory challenges based on gender as well as race.
24 Lawyers need training to recognize their own implicit biases in order to avoid race-motivated peremptory challenges. Bennett, supra, note 22, 4 Harv. L. & Pol’y. Rev. at 168.
25 Kang, supra, note 1, at 1184; Samuel R. Sommers & Phoebe C. Ellsworth, “White Juror Bias: An Investigation of Prejudice Against Black Defendants in the American Courtroom,” 7 Psycho. Pub. Pol’y & L. 201, 255 (2001). In other words, addressing implicit racial prejudice is less important when the issue of race is obvious. Yet, there is a constitutional right to probe racial bias only where there is a racial dimension to the case, or in a capital case where the crime is interracial. Turner v. Murray, 476 U.S. 28 (1986); Ham v. South Carolina, 409 U.S. 524 (1973); State v. Davis, 141 Wn. 2d 798, 824–25 (2000).
26 Cynthia Lee, “A New Approach to Voir Dire on Racial Bias,” 5 U.C. Irvine L. Rev. 843, 861 (2015).
27 Id.; see also, Cynthia Lee, supra, note 6; Anna Roberts, “(Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias,” 44 Conn. L. Rev. 827 (2012).
28 Professor Anna Roberts has suggested giving jurors the IAT as an educational device, prior to sending them to a courtroom. See id.. Others recommend that the IAT should not be used as a device to screen jurors. Kang, supra, note 1, at 1179–80. Professor Cynthia Lee opines that if the IAT were offered to jurors on a voluntary basis, it would reduce any risk of backlash. Lee, supra, note 26, at 867. However, most trial courts lack the resources necessary to offer the IAT, even if it were shown to be beneficial.