December 2016 Bar Bulletin
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December 2016 Bar Bulletin

Jury Diversity and Implicit Bias:
Tilting the Scales Toward Racial Balance

By Judge Theresa Doyle

(Second of Two Parts)

 

In November’s issue, Part I addressed juror bias generally and discussed proposed General Rule 36. Part II discusses the three main stages at which juror implicit bias can be addressed: juror orientation, jury instructions and voir dire.

How To Address Jurors’ Implicit Bias

Juror Orientation

In most courts, jurors are assembled together in a jury room and shown an educational video about the court and basic legal tenets, i.e., burden of proof and presumption of innocence, and deciding the issues based on the evidence. Many experts recommend addressing implicit bias here, before jurors are assigned out to a courtroom, for several reasons.29

First, the jurors are a captive audience so are likely to pay attention. Second, social science research into learning shows that impressions formed early can shape the understanding of what follows. This is called “framing,” “cognitive filtering” and “priming.”30

Third, the concept of deciding issues fairly will already have been introduced. Fourth, addressing the topic before jurors are sent to a courtroom for a particular case minimizes the risk that jurors will punish the attorney assumed to have requested the bias education.31

Finally, the internal motivation to be fair is highly effective in reducing the effects of implicit bias. It is at juror orientation that pride in the jury system, the role of jurors in a democracy, and the right to a fair trial are first introduced. Eliminating racial bias is logically part of that discussion.32

Judge Mark Bennett33 advocates showing jurors a short video clip that illustrates implicit racial stereotypes. This popular YouTube video shows a bicycle chained to a tree, and how the reactions of passersby change depending on the race and gender of the person trying to break the chain to free the bicycle.

Passersby look but don’t do anything when a white man approaches the bicycle and tries to remove the chain. But when a black man does exactly the same thing, passersby question him, some yell at him, a crowd gathers, and the police are called. When a white woman takes the same actions, several men stop and offer to help her.34

Jury Instructions

Jury instructions on implicit bias are becoming more common. Judge Bennett gives a jury instruction on implicit bias prior to opening statements35 and asks jurors to pledge to avoid stereotyping.36 Other jury instructions in use suggest that jurors engage in race-switching when evaluating the evidence. This means imagining, in a civil case, that the parties’ races are switched, and, in a criminal case, the races of the defendant and victim are reversed.37 The American Bar Association (ABA) offers an instruction similar to Judge Bennett’s.38 California also has a model instruction on implicit bias.39

The effectiveness of implicit bias instructions is the subject of scholarly debate.40 But what is agreed is that any instruction, to be effective, must avoid the authoritarian language common in jury instructions. Rather, formulations that encourage self-reflection and foster intrinsic egalitarian attitudes are advised.41 Judge Bennett’s instruction emphasizes that implicit bias is universal, which reduces the risk of resentment or backlash from jurors.42

In any event, it is clear that the Washington pattern instructions we use, admonishing jurors not to decide the case on “sympathy, bias, or personal preference” (WPI 1.01, 1.02, WPIC 1.01, 1.02), address conscious bias, but leave undisturbed implicit racial bias. A passive, color-blind approach, ignoring race, should be abandoned in favor of a multicultural approach that acknowledges group diversity and tackles bias.43 As noted by Justice Harry Blackmun, “In order to get beyond racism we must first take account of race.”44

Voir Dire

Finally, lawyers can address implicit racial bias during voir dire. As previously noted, research shows that implicit racial bias is most influential where the case is not racially charged, but the parties or witnesses are of different races.45 The recommended approach is to make race salient.46

The familiar statement, “this is not a race case,” ignores the social science research into implicit racial bias and needs to be retired. The very purpose of voir dire is to uncover bias and implements the constitutional right to trial by an impartial jury.47

There are many sources available to lawyers for formulating questions designed to ferret out racial bias without triggering juror defensiveness or animosity toward the questioning lawyer.48 However, even with well-crafted questions, some attorneys, particularly public defenders, are concerned about the risk of polarizing the venire and losing credibility among potential jurors if they bring up implicit bias.49 Others believe that the danger of unconscious racial prejudice is the greater risk, and that failure to address implicit bias with jurors in a careful manner violates the client’s right to competent representation.50

A questionnaire about racial attitudes is an option. Having jurors answer race-relevant questions before voir dire begins gets them thinking about race and guarding against unconscious racism.51 It could also serve to encourage more honest answers.

Coming from the court and not the lawyers, a questionnaire could reduce the risk of jury animosity toward the lawyer planning to inquire further about racial bias. To pull off this dialogue, judges must “become comfortable with being uncomfortable,” to quote my colleague, King County Superior Court Judge Veronica Alicea-Galvan.

Equal justice is the foundation of our legal system. Racially prejudiced juries are a direct threat to the legitimacy of the courts and democracy.52 Parties have constitutional due process and equal protection rights to a fair trial free of racial bias. Persons of color have a constitutional right not to be excluded from a jury based on their race.

Society has a right to procedural fairness in the legal system. A jury system corrupted by racial bias corrodes public confidence and violates the social contract between the government and the governed.

President Barack Obama has stated that one of society’s greatest challenges is to narrow the gap between the promise of our ideals and the reality of our times.53 The ideal is equal justice. Our challenge is to make it a reality.

Judge Theresa Doyle has been on 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).

29 See Cynthia Lee, “A New Approach to Voir Dire on Racial Bias,” 5 U.C. Irvine L. Rev. 843, 861 (2015); 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); Anna Roberts, “(Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias,” 44 Conn. L. Rev. 827 (2012); Jerry Kang, Judge Mark Bennett, et al., “Implicit Bias in the Courtroom,” 59 UCLA L. Rev. 1124, 1142 (2012).

30 Roberts, note 29, supra, at 861–66.

31 Id. at 865–66.

32 Id. at 865–66, 878–79.

33 Judge Bennett is a judge for the United States District Court for the Northern District of Iowa.

34 “What Would You Do?”, ABC television broadcast May 7, 2010, available at www.youtube.com/vladcantsleep.

35 “Do not decide the case based on ‘implicit biases.’ As we discussed in jury selection, everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, ‘implicit biases,’ that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and to resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases.”

See Kang, Bennett, note 29, supra, 59 UCLA L. Rev. at 1182. See generally, 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 (2010).

36 “I pledge I will not decide this case based on biases. This includes gut feelings, prejudices, stereotypes, personal likes or dislikes, generalizations or stereotypes.” Kang, Bennett, supra, note 29, 59 UCLA L. Rev. at 1182.

37 “Jury Selection and Race – Discovering the Good, the Bad, and the Ugly,” paper submitted by Jeffery Robinson, Director of ACLU Center for Justice, and others, available at www.americanbar.org.; Kang, Bennett, supra, note 29, 59 UCLA L. Rev. at 1184.

38 “Our system of justice depends on judges like me and jurors like you being careful and willing to make careful and fair decisions. Scientists studying how our brains work have shown that, for all of us, our first responses are often like reflexes. Just like our knee reflexes, our mental responses are quick and automatic. Even though these quick responses may not be what we consciously think, they could influence how we judge people and even how we remember or evaluate the evidence. Scientists have taught us some ways to be more careful in our thinking that I ask you to use as you consider the evidence in this case. Take the time you need to test what might be reflexive unconscious responses and to reflect carefully and consciously about the evidence.” See American Bar Association, “Achieving an Impartial Jury (AJI) Toolbox”, and extensive resources contained therein.

39 California has this instruction for use in civil cases: “Each one of us has biases about or certain perspectives or stereotypes of other people. We may be aware of some of our biases, but we may not share them with others. We may not be fully aware of some of our other biases. Our biases often determine how we act, favorably or unfavorably, toward someone. Bias can affect our thoughts, how we remember, what we see or hear, whom we believe or disbelieve, and how we make important decisions. As jurors, you are being asked to make very important decisions in this case. You must not let bias, prejudice, or public opinion influence your decision in this case.” CACI, section 113 (2012).

40 See Jennifer K. Elek and Paula Hannaford-Agor, “Can Explicit Instructions Reduce Expressions of Implicit Bias? New Questions Following a Test of a Specialized Jury Instruction,” National Center for State Courts, April 2014, archived at http://perma.cc/ZZD4-XD73; Jennifer K. Elek and Paula Hannaford-Agor, “First, Do No Harm: On Addressing the Problem of Implicit Bias in Juror Decision Making,” 49 Court Rev. 190–98 (2013); cf., Kang, Bennett, supra, note 29, 59 UCLA L. Rev. at 1182–84.

41 See id.

42 Kang, Bennett, supra, note 29, 59 UCLA L. Rev. at 1181–82.

43 Elek & Hannaford-Agor, supra, note 40.

44 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 407 (1978) (Blackmun, J., concurring in part and dissenting in part).

45 Kang, Bennett, supra, note 29, 59 UCLA L. Rev. at 1184; 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).

46 Lee, “A New Approach to Voir Dire on Racial Bias,” 5 U.C. Irvine L. Rev. 843, 867–68, supra, note 29; Peter Joy, “Race Matters in Jury Selection,” 109 Nw. U. L. Rev. 180, 184 (“How to Discuss Ferguson”) (2015).

47 State v. Davis, 141 Wn.2d 798, 824–25 (2000).

48 See “Jury Selection and Race – Discovering the Good, the Bad, and the Ugly,” supra, note 37. Examples to encourage juror discussion include open-ended questioning, i.e., for reactions to the Confederate flag, or to the expression, “playing the race card,” and asking, “What if no one in the courtroom looked like you?” or ”What do you think of the Black Lives Matter movement?” or “Do you think black people commit more crimes?”

49 Sarah Forman, “The #Ferguson Effect: Opening the Pandora’s Box of Implicit Bias in Jury Selection,” 109 Nw. U. L. Rev. Online 171, 176 (2015) (concern that jurors could view questions about implicit bias as an attempt to “play the race card”).

50 Joy, supra, note 46, 109 Nw. U. L. Rev. at 185–86.

51 Id. at 181–82.

52 Regarding the fairness of the justice system, “African Americans and Whites are on two different ends of the spectrum, with the former exhibiting strong signs of cynicism about the ability of the justice system to provide fair, impartial, and respectful justice, and the latter displaying substantially more confidence and trust in the system.” “Justice in Washington State Survey: 2012” (revised and updated 2014), report of the Washington State Minority and Justice Commission, available at www.courts.wa.gov/content/publicUpload/News/Justice.

53 “Speech on Race,” delivered on March 18, 2000: “What would be needed were Americans in successive generations willing to do their part-through protests and struggle, on the streets and in the courts, through a civil war and civil disobedience and always at great risk to narrow the gap between the promise of our ideals and the reality of our times.”

 

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