A failure of justice: Juries and Racism
A Failure of Justice:
Juries and Racism
Douglas L. Keene, Ph.D.
Rita R. Handrich, Ph.D.
2001
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A failure of justice: Juries and Racism
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Abstract
Like a cancer that mutates, detecting the form that racism takes in our society
requires steady vigilance. What defies logic is the presumption that racism has ceased to
be an issue in America. It may be more subtle, and thus harder to detect now than it was
in the 1950’s, but it is still a powerful and pervasive presence in American society. While
we may wish that citizens called upon to be jurors were capable of setting aside biases to
provide each plaintiff or defendant with a fair hearing, both the popular and scholarly
literatures tell us that plaintiffs and defendants of color are treated differently than their
white counterparts.
This article explores the literature on prejudice and racism in the country and in the
courtroom. While African-Americans are a smaller minority than Hispanic citizens in
many parts of the United States, to this date the research has been much more extensively
aimed at bias related to African-American citizens, and far more has been done in the
arena of criminal law than civil law. Many of the findings can safely be generalized,
though, and have merit across ethnic groups and court settings. Long-term strategies for
systemic change and short-term strategies for mitigating the effects of racism in the
courtroom are presented.
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A Failure of Justice: Juries and Racism
The African-American experience
It is certainly possible, even though essentially ignored in the literature on social
justice, that minority group members (such as African-Americans) as well as others in
traditionally less powerful groups might interpret information and react to injustice in
ways that are different than majority group members (Davidson, 1998). Krauss &
Schulman (1997) point to the racially divided nature of the United States and conclude it
is not surprising that black and white jurors bring differing experiences into the
courtroom. They (as well as Marder, 1999) believe that ‘nullification’ has become a
contemporary catch phrase to explain the fact that some black jurors reach conclusions
unlike those expected or desired by some whites. Davidson & Friedman (1998) refer to
this phenomenon (i.e., differing conclusions based upon the same evidence) as the
“persistent injustice effect” and report that blacks begin with a different “horizon of
expectations” about injustice and therefore reside in a different experiential world when it
comes to perceptions about injustice.
Krauss & Schulman (1997) believe that the myths being propagated about racebased jury nullification are themselves based in racism:
“Attacks on black jurors betray an expectation that blacks should deny their own
experiences and adopt those of whites. Surely this is racism--not the old-fashioned
kind, but the new fashioned kind. The kind where whites supply seemingly nonracial reasons (e.g., those jurors are not following the law) as the basis for racist
opinions. No doubt, the authors of each article criticized here would deny
believing that blacks are inferior and whites superior. But how else can we
understand the demand that black jurors leave their experiences at the courthouse
door?
In conclusion, we argue that the myth of black juror nullification is a racist attack
on the jury system motivated in part by a desire to limit the impact of 'minority'
peoples' experience on the justice system. Denying that race or racism exists is
possible only for whites whose majority status allows them to assume that they do
not have a race. National Jury Project post-trial interviews and mock trial research
show that minority people are more willing than whites to discuss race. Whites do
not like to talk about race, and overt expressions of racism have become socially
unacceptable” (Krauss, 1997).
Given the strong disagreements about the practice of nullification and the roles played by
race in jury decision-making, it seems important to examine the facts about race and
racism in the courtroom.
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Prejudice in America
Although minorities are only about 13% of the adult male population in the
United States, they represent almost 60% of the U.S. prison population [Harris, 1987
#382, (Butler, 1997a). Black men are 4.8 times as prevalent in prison as would be
predicted based on their proportion in the U.S. population; for Hispanics the
corresponding figure is 3.3 in contrast. White males are considerably under-represented
in prisons (Gottfredson, 1996).
Not surprisingly, surveys of minority group members in this country show that
minorities consistently report a belief that the law will work to their disadvantage:
Minorities are more likely than other Americans to doubt the fairness of the court system
and to perceive racist events against both whites and blacks (Davis, 1989). The issue of
prejudice is clearly more focal and central for members of traditionally oppressed groups
than it is for other individuals. Researchers posit that this extra level of awareness may
stem not only from efforts at self-protection but also from a general feeling of empathy of
others who are oppressed. It is also hypothesized that the heightened interpersonal
socialization of women in this country may make them more aware than men of
interpersonal infringements of all kinds. For example, women are more likely than men
to perceive sexism directed against men and racism directed at both blacks and whites
(Inman, 1996). Is, however, there any basis in fact for these “perceptions” of differential
treatment for blacks in the American courtroom?
Those courts that do permit verdict impeachment based on racial bias
occasionally hear stories of overt jury discussions of race and credibility. Statements such
as “You can’t tell one black from another”; exhortations from a juror to other panelists
that they should take the word of white victims over that of a black defendant; and even
references to a black witness being like a chimpanzee have come to light in hearings
(Johnson, 1996). Racial bias is clearly an issue in the courtroom.
Mock jury studies perhaps provide the strongest evidence that racial bias
frequently affects the determination of guilt. Lab findings in mock jury studies are quite
consistent: racial bias effects guilt determination. However, white subjects do not
consistently treat black defendants less favorably. This finding has led researchers to
believe that racial bias in the courtroom is precipitated by subconscious racial stereotypes
rather than overt and conscious hostility (Johnson, 1985). These stereotypes are believed
to have lingered even as old-fashioned racism (with overt prejudices expressed) has been
replaced by modern racism (with non-politically correct beliefs suppressed but old
stereotypes lingering which effect decision-making in complex ways). Researchers report
anecdotal examples of how modern racism is experienced by adults in this country:
“Many Southerners have confessed to me, for instance, that even though in their
minds they no longer feel prejudice toward Blacks, they still feel squeamish when
they shake hands with a Black. These feelings are left over from what they
learned in their families as children.” (Pettigrew, 1987).
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Even more recent research indicates that the college students and young children of today
are also learning these lessons. In 1992, Crump, Recupero & Roy compared white college
students interracial attitudes in 1970 and 1991 and found that while some attitudes had
become more egalitarian over time, others had grown more negative. Students became
more positive toward blacks on interracial issues such as housing, marriage, social
outings and altruism, but became more negative with respect to blacks committing crimes
(Crump, 1992). Further providing evidence that more subtle forms of racism continue to
be transmitted to our children is a 1997 study demonstrating how children’s notions of
social distance are affected by race (Holmes, 1997).
Despite anecdotal and research findings to the contrary, white jurors are assumed
by the courts to be color-blind, with the documented history of wrongful convictions and
acquittals perpetrated by racist white jurors ignored. Krauss & Schulman (1997) declare
that the original definition of color-blindness (as a step on the road to racial equality) has
been co-opted to instead stand for the denial of the existence of race as a factor in
American social relationships and therefore, in American juror’s perceptions. Davis
suggests that this denial of racism and the clear persistence of racism are inter-related as
it is difficult to change an attitude that is not acknowledged.
“Like a virus that mutates into new forms, old-fashioned prejudice seems to have
evolved into a new type that is, at least temporarily, resistant to
traditional….remedies” (Davis, 1989).
Lawrence (1987) concurs by pointing out there is great reluctance to admit that racism
infects almost everyone.
“Acknowledging and understanding the malignancy are prerequisites to the discovery
of an appropriate cure. But the diagnosis is difficult, because our own contamination
with the very illness for which a cure is sought impairs our comprehension of the
disorder “ (Lawrence III, 1987).
These underlying (and unacknowledged) racial biases are particularly dangerous
in the courtroom since prevailing societal beliefs about innocence and guilt may well
negatively affect the black defendant’s chances of a fair trial. Krauss & Schulman (1997)
report that surveys conducted by the National Jury Project over the past 20 years have
consistently found that between 15% and 45% of jury-eligible respondents believe that a
person who is brought to trial is probably guilty; and more than 50% expect defendants to
prove their innocence despite legal instructions to the contrary. Coupling these
misunderstandings of the law and our legal system with the realities of prejudice in this
country paints a fairly bleak picture for the black defendant’s chances of a fair hearing.
Given this picture, it seems important to examine the theories of “modern racism” to have
a clearer understanding of the dynamic and thus a better means of creating strategies to
mitigate its impact in the American courtroom.
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Modern racism: Theory and practical understanding of the research literature
Perhaps one of the easiest ways to understand modern racism is to look to our
everyday behaviors of using discriminating descriptors such as race, gender, or religion to
identify people with whom we are similar and those from whom we differ. Those
individuals (and this is most of us, to varying degrees) who are modern racists may seem
to comply with the newer, i.e. politically correct, egalitarian racial norms and express
them verbally, without actually internalizing them (Dean, 2000). According to theory, the
modern racist experiences anti-black feelings and believes that blacks violate traditional
American work values such as individualism and the Protestant work ethic. At the same
time, these modern racists are uncomfortably aware that prejudiced feelings/beliefs are
seen as socially inappropriate and therefore they are motivated to inhibit the overt
expression of their internal beliefs (Monteith, 1996).
According to Lule (1995) the tenets of modern racism include beliefs that
discrimination is a thing of the past; that blacks push too hard and too fast; that black
demands for opportunity are unfair; and that recent gains by blacks are undeserved. In
other words, the modern racist clusters blacks into a limited number of categories with
negative characteristics and gives symbolic expression to beliefs through the use of
stereotypes (Lule, 1995). Thus, many whites consciously believing themselves to be nonprejudiced actually harbor unconscious negative feelings and beliefs about blacks. These
unconscious negative feelings and beliefs may well be implicit attitudes, where the
conscious, self-reported egalitarian attitudes of aversive racists may represent explicit
attitudes. Therefore, the self-report of being non-prejudiced would be at odds with the
covert, underlying belief structure (Dovidio, 1997).
The self-report of non-prejudice is believed to stem from the desire to seem nonprejudiced to others. However, the covert, underlying stereotypes and attitudes are
observed when whites are asked to make complex decisions such as in trial or courtroom
situations (Beal, 2000) as well as in situations where they are asked to make judgments
with evidence that is ambiguous or unclear (Fein, 1997; Krauss, 1997). In these
situations, racial stereotypes arise and fill in details not presented by the evidence—and,
as one researcher put it, “People of color do worse” (McClellan, 1996).
The realities of prejudice, whether it is expressed as old-fashioned, overt,
‘redneck racism’ or as the new modern and covert racism, have resulted in different
senses of justice for blacks and whites in this country. The disparity in sentencing
between lacks and whites actually increased from 1984 to 1990 and, in some cases, nonwhites are still likely to receive longer sentences than whites (Krauss, 1997). Blacks and
whites not only perceive justice differently, they have differing actual experiences of the
application of justice.
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Black versus White Justice in America
A recent nationwide poll found that 60% of the blacks surveyed think blacks are
treated less fairly than whites by the police (Krauss, 1997). Other research evidence
shows that blacks are more suspicious than whites about the actions of arresting police
officers (Abramson, 1995); that blacks are more likely to believe that decisions to bring
criminal charges, to convict upon those charges, and to impose the death penalty are
tainted with racial bias (Bowers, 2001); that blacks have less confidence than whites in
the courts and are less approving of the police (Bowers, 2001); that blacks have a greater
distrust of the system, of police, of lawyers, and of evidence (Reske, 1996). Whites, on
the other hand, are more likely to see the criminal justice system as too lenient and
stacked in favor of defendants’ rights (Bowers, 2001).
Paul Butler suggests that black Americans have learned that “sometimes the white
majority giveth and sometimes the white majority taketh away” and he describes the
current system as a racial tyranny of the majority best labeled as a “Democratic
domination” (Butler, 1996). The difference between perceptions and experiences of black
versus white Americans in the courtroom has been the focus of study by a variety of
researchers. Studies have focused on race in general, race of plaintiff, race of defendant,
race of juror (in both civil and criminal cases), and, to a much lesser extent, on the race of
the attorney. These literatures will be reviewed in the pages that follow.
Race in general. Although few issues have drawn as much attention in both the
scholarly and mass media arenas as the practical effects of race in the courtroom, the
existing literature is inconclusive on the specific questions of whether and how race
affects decision-making in the courtroom (Conley, 2000). While researchers have learned
about bias and stereotyping and how they work, there is a general dearth of research
specifically examining the role played by race in the courtroom. The research that does
exist reflects inconsistent and often ambiguous results (Sommers, 2000) but does suggest
that race can matter. The question is simply how much, under what circumstances, and
how regularly (Fein, 1997).
Research done on race has established that Americans have intractable stereotypes
about blacks. Some research indicates that race-related juror biases may heavily depend
on the specific racial combination of defendant and victim and the racial makeup of the
jury (Kerr, 1995). These race-related biases may be mitigated when jurors are reminded
(via judicial instructions) to be impartial (Fein, 1997; Pfeifer, 1991). It is important
therefore, to examine the research on race of plaintiff, defendant, juror, and attorney, in
an effort to begin to understand the complexity of interactions inherent in the racially
mixed courtroom.
Race of plaintiff. Although most people agree that race should not play a role in
tort cases, they also agree that it does. Disagreement comes into play around how the role
of race should be addressed. Some believe that the judicial system should not address
race and instead act with ‘colorblindness’ while others suggest that the significance of the
role of race should be directly addressed (McClellan, 1996). Regardless of how one
A failure of justice: Juries and Racism
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believes racial issues should be dealt with, studies examining the impact of race on tort
case outcomes are in agreement: blacks do worse than whites. Blacks lose more often
than whites (both as plaintiffs and defendants) and black plaintiffs receive smaller
awards. Black defendants also, however, tend to pay less than their white counterparts
(McClellan, 1996). When it comes to being black and filing a tort case, there are
substantial concerns to be assessed:
“Tort cases involving 'personal' injuries or large money damages present
significant risks to clients who are people of color. A substantial risk is that race
will trump other considerations affecting the resolution of the dispute in
jurisdictions where people of color represent a minority among the judicial
decision makers” (McClellan, 1996).
Race of criminal defendant. The realities in criminal cases are even worse. With
few exceptions, it appears that both mock and real jury studies reveal race-based
decision-making and that there is evidence that the mock jury studies tend to understate
the extent of such racial differences. Indeed, racial disparities appear to be even more
pronounced when the crime is serious, such as murder or rape, or when the evidence is
more ambiguous and guilt or acquittal is a close call (Bowers, 2001). The study results
are striking in their similarities. Black defendants were convicted more readily and
sentenced more harshly in stranger rape situations (Hymes, 1993). White mock jurors
find the defendant guilty more frequently when the defendant is black than when the
defendant is white; this racial bias is especially prominent when the victim is white
(Bagby, 1994; Bowers, 2001). Subjects judged a defendant to be more guilty and
aggressive if he was labeled as Hispanic rather than if he was labeled as ethnically
nondescript (Bodenhausen, 1987). White mock jurors are more likely to impose more
severe punishment on black defendants (Bowers, 2001). Race-linked disparities are most
pronounced when the defendant is black and the victim is white; in such cases the
defendant is doubly disadvantaged (Bowers, 2001; Johnson, 1985).
Additional findings include the reports that both black and white defendants were
rated as more guilty when the victim’s race differed from their own (Hymes, 1993); white
jurors are more likely to convict when the victim is white and black jurors are more likely
to convict when the victim is black, regardless of the defendant’s race (Bowers, 2001);
and that white jurors tend to curb adverse treatment of black defendants when race is a
prominent or salient feature of the experimental manipulation but not when race is known
but not prominent in the experiment (Sommers, 2000).
A 2000 review article reports that, in general, gross bias against blacks will likely
not be evident in any one study, or at least would not be evident in any straightforward
and easily detectable manner. The theories proposed by modern racism, in that today’s
jurors will attempt to appear non-prejudiced, are supported by this review. The author’s
conclude that when bias is found, it will likely be linked to the jurors’ stereotypes and the
extent to which a defendant fits those stereotypes, as well as the context in which the
defendant appears (Conley, 2000).
The overwhelming evidence for the role of race in decision-making and the
assignment of punishment has prompted strong feelings about the importance of black
A failure of justice: Juries and Racism
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jurors. It seems that, while perhaps it is unconscious, white jurors are carrying the
cultural stereotype of the ‘dangerous black male predator’ into the jury room with them
(Bowers, 2001). Awareness of this research, coupled with an understanding of modern
racism, cries out for the inclusion of black jurors on cases with black defendants
(Johnson, 1988).
These problems are not limited to the United States. Canadian researchers point
out that between 12 and 16% of Canadians have admitted to strong intolerance based
upon race alone (Urbszat, 1998). Due to the awareness of this bias, a standard, known as
the “Parks Question” is allowed by judges in cases of challenge for cause due to racial
bias. The question has been modified to fit the circumstances of various cases, but the
original question was “Would your ability to judge the evidence in the case without bias,
prejudice or partiality be affected by the fact that the person charged is black and the
deceased is white?” (Urbszat, 1998). While there are growing tendencies to allow a
defendant’s request to ask jurors specifically about racial bias (Gelhaus, 2000), it is not a
standard practice. Attorneys for black defendants who are allowed unusually extensive
voir dire on racial prejudice often report that jurors deny initial queries but often
eventually admit to strong antagonism toward blacks in general and presumptions about
the particular defendant’s guilt (Johnson, 1985). The research literature on the race of the
juror demonstrates that voir dire is an important part of the overall strategy to mitigate the
effects of racism in the jury room.
Race of juror. The problems of obtaining and preserving black jurors are well
known. In many jurisdictions blacks are not only less likely than whites to be called for
jury duty in the first place, but once there they are less likely to be chosen as jurors.
Additionally, blacks tend to be under-represented on the panels from which jurors are
chosen (Higgins, 1999). Again, the literature on race of juror reflects consistent
differences between black and white jurors. White jurors are more likely to vote to
convict a defendant than are black jurors (Bernard, 1979; Fein, 1997) and white jurors
were less likely to show compassion, particularly toward a black defendant (Bernard,
1979). While much research has directly addressed the question of whether white are
more likely to convict defendants of color than similarly situated white defendants, it
appears that the results are not particularly conclusive in the experimental research
literature (Conley, 2000).
In the capital criminal trial arena, however, the results are much more conclusive
and disturbing. Bowers et al (2001) report their findings from interviews with 1,155
capital jurors from 340 trials in 14 states and drew multiple conclusions about the role of
race of juror in capital cases. Some of their findings are presented below. In an effort to
efficiently present the findings, the data are clustered into several groups:
Black defendant/white victim cases (B/W) versus other racially related cases:
Black jurors were much more likely than white jurors to believe that the
defendant was remorseful for the crime in B/W cases. Black and white
jurors quickly became polarized on these cases with regard to punishment:
whites for death and blacks for life over the course of the trial. Black
jurors were more likely than white jurors to identify with the defendant,
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his situation and his family than white jurors. A dominance of white male
jurors was strongly associated with the imposition of a death sentence: the
presence of 5 or more white male jurors dramatically increased the
likelihood of a death sentence. The presence of black male jurors was
strongly associated with the imposition of a life sentence. (In the absence
of black male jurors, death sentences were imposed in 71.9% of the cases
as compared to 42.9% when one black male was on the jury.) Successful
black male juror holdouts for life sentences were exceptionally resolute
and charismatic (Bowers, 2001).
Black/White interpersonal relationships on the jury:
Black jurors saw their white juror peers as racially biased, as favoring
death sentences, as impatient with dissent, and as indifferent to mitigating
evidence. White jurors in the majority on the jury sometimes took extreme
steps to force black holdout jurors to comply: ostracism, deception, and
coaching (Bowers, 2001).
Black/White intrapersonal differences during the jury experience:
Black jurors were much more likely to experience lingering doubts about
the capital cases and to acknowledge those doubts. Black jurors had more
doubts about the defendants’ guilt than white jurors regardless of the
defendants and victims race. That is, blacks had more doubts not only in
B/W cases and B/B cases but also in W/W cases. When interpreting the
same mitigating evidence, blacks were much more likely than whites to
show compassion toward the defendant. And, finally, white jurors
appeared to believe that black defendants were more dangerous than white
defendants and black jurors appeared to believe that defendants who kill
blacks are more dangerous than those who kill whites (Bowers, 2001).
Bowers et al summarize the results as follows:
“Whites are apt to make pro-prosecution interpretations of
evidence, especially when defendants are black and particularly on
issues such as eyewitness ID, probable cause, and resistance to
arrest. Blacks may be more critical in their interpretation of factual
questions presented a trial, particularly when police testimony is
involved. In capital cases, blacks may be more sympathetic than
white jurors to mitigating evidence presented by a black defendant
with whom they may be better able to identify and empathize and
whose background and experiences they may feel they understand
better than do their white counterparts” (Bowers, 2001).
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Race of attorney. An exhaustive review of the literature indicates only two actual
research studies examining race of the attorney. The first, conducted in 1981, looked at
the effect of attorney race on determination of client guilt and found a consistent antiblack attorney bias (Cohen, 1981). The second study, a dissertation completed in 1999,
did not find similar results to the Cohen study. Instead, Boliver (1999) found that when a
black defense attorney uses the race of the defendant as a defense strategy, it can result in
more lenient verdicts by black jurors but in harsher verdicts from white jurors. Secondly,
when a white defense attorney uses ‘the race card’, black juror verdicts are not affected,
but white jurors verdicts are again harsher (Boliver, 1999). The only other study that
mentions race of attorney is one primarily focused on the race of the defendant. In a study
of defendant race, it was found that jurors were more likely to acquit when a black
defendant is the lone person of color in the courtroom, and, he does not fit traditional
stereotypes of black criminals. When a black attorney was added, or black witnesses were
added, the differences between conviction rates for black and white defendants were
minimized. The authors concluded that prosecutors should avoid all white prosecution
teams when the defendant is black (Eisley, 2001).
Despite the dearth of research on the variable of attorney race, there is anecdotal
evidence that black attorneys pay attention to issues of attorney race and that they worry
their race may negatively affect their client’s outcome. McClellan (1996) describes the
following scenario experienced by an African-American attorney:
“Gene, an African-American attorney, represents plaintiffs in medical malpractice
and product liability cases. When he represents a person of color, he proposed
some form of the following voir dire question: The plaintiff in this case is
African-American as is his attorney. The defendant is white as is his attorney. Is
there any member of the jury panel who has had an experience or who holds
beliefs concerning race that make him unable to decide this case based on the law
and evidence because of the race of one of the parties or their attorneys?”
(McClellan, 1996).
The literature on race and racism in the courtroom strongly suggest it is important
to address both the systemic issues and to identify more immediate strategies for
mitigating the effects of racism in current cases.
Fixing the System: Strategies from the literature
There is general agreement in the literature that there are problems with the way
our current system is functioning when it comes to race and jury selection. Of course,
while there may be consensus that a given strategy might reduce racial bias, it may or
may not serve the interests of the trial more broadly. Several authors have suggested
strategies to improve the existing process. Those suggestions are listed in Table 1 below:
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Table 1
Fixing the System: Long-term Strategies for Balanced and Fair Jury Trials
Strategy
Eliminate or restrict peremptory challenges (Abramson, 1995; Alschuler, 1996)
Eliminate professional exemptions from jury service (Alschuler, 1996)
Enforce summons for jury duty (Alschuler, 1996) and use stratification in determining
how many summonses it will take to gather jurors from a given area (Higgins, 1999)
Do not disqualify jurors who have seen news coverage of the case (Alschuler, 1996) and
do not sequester juries (Alschuler, 1996)
Reduce influence of trial consultants and eliminate jury questionnaires (Alschuler, 1996)
Offer instructions on the law at the beginning of the trial (Alschuler, 1996)
Redraft standard jury instructions to improve clarity (Alschuler, 1996) and allow written
copies of the judge’s instructions on the law (Abramson, 1995)
Permit mini-summations and arguments as the trial proceeds (Alschuler, 1996)
Permit note taking by jurors (Abramson, 1995; Alschuler, 1996).
Permit witness questioning by jurors (Abramson, 1995; Alschuler, 1996).
Recruit jurors from fair cross-section of the community. Registered voter lists will not
work: Hispanics and blacks are notoriously underrepresented there (Abramson, 1995).
Permit jurors to talk with each other about case evidence (Abramson, 1995)
Accept the fact that race-conscious deliberating does not necessarily mean jury
nullification (Do, 2000)
While these strategies and others represent longer-term fixes to an ailing system, the
litigator needs strategies to use in the meantime. The following strategies are culled from
the social psychological and legal literature and represent a fairly exhaustive listing of
findings relevant to the purpose of mitigating the impact of racism in the courtroom
setting. Prior to discussing those strategies, however, it is important to critically evaluate
the jury simulation literature and to identify the methodological concerns affecting the
validity of the published results.
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Methodological concerns with jury simulation studies
A number of methodological concerns have been consistently expressed in the
jury simulation literature. They are similar to the caveats that apply to the use of focus
groups and mock trials to predict verdicts in civil trials. Jury simulation studies have
been criticized for inadequate sampling, inadequate trial simulations, and lack of
deliberations (Diamond, 1997; Weiten, 1979). Some writers have argued that simulation
studies cannot emulate what really happens in a courtroom (Bernard, 1979) and others
wonder whether reading about a black plaintiff or defendant in a vignette stimulates the
same extra-evidential biases that actually seeing the plaintiff or defendant would elicit in
the courtroom (Fein, 1997). Another author opines that generalizing to juries based on the
behavior of mock juries (often using college student populations as subjects) is a perilous
generalization indeed (Kerwin, 1994).
Indeed, in one study, when university students were compared to jury-eligible
participants, the university students and jury-eligible participants reacted in opposite
directions—thus bringing into question the generalizability of college student results to
the jury panel participants (Foley, 1997). A more recent paper (Bornstein, 1999),
however, reviewed 26 studies directly comparing student mock jurors to community
resident samples and found that in only 5 of the 26 studies was there a significant
difference between the two types of jurors. Where differences occurred, the student jurors
tended to be more lenient in their judgments than did community residents (Bornstein,
1999). It would seem, then, based on Bornstein’s review, that there is reason to believe
that student jurors may well under-report the racial biases we might expect to see with
jury-eligible participants. Other methodological concerns not withstanding, the existing
body of research is the best measure we have to identify strategies for mitigating the
impact of racism in the courtroom.
For clarity, the strategies drawn from the literature will be grouped according to
the natural flow of the trial: witness preparation, creating jury instructions, supplemental
jury questionnaires and voir dire, developing the narrative themes, and optimizing the
impact of your case presentation. Table 2 presents a summary of strategies and the
following pages discuss the research literature supporting the recommended theories.
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Table 2
Strategies for mitigating the effects of racism in the courtroom
Trial Phase
Witness preparation
Strategies
1) Assess and improve verbal and nonverbal
communication style
2) Make your client as attractive as possible
(physically attractive; or if not, focus on
interpersonally attractive features; or if not,
educate jurors regarding the social
psychological literature on the bias toward
attractive people
1) Advocate for clarity in jury instructions
Jury Instructions
Voir dire and Supplemental
Jury Questionnaires
2) Plan strategies for dealing with inadmissible
evidence depending on the facts of your case
1) Consider the hazards of automatically
selecting jurors similar to your client
2) Consider the persuasive power of a small
number of jurors
3) Ask questions that provide information on
levels of racism
1) Use a story
Trial Strategies
2) Educate about cross-racial witness
identification if relevant
3) Watch for racial bias when race is not a
salient case factor
4) Engage juror empathy
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Witness preparation strategies. Based on the literature there are two basic witness
preparation strategies to attend to in an effort to mitigate the effects of modern racism in
the courtroom:
1) prepare your client to use powerful rather than powerless speech patterns and
non-verbal behavior and
2) 2) make your client as attractive as possible.
Speech patterns (verbal and nonverbal). Witness preparation strategies should provide
coaching to the witness on using more powerful verbal speech styles to communicate in
the courtroom. This is particularly important for minority and female clients who may
tend to communicate in a more indirect, more qualified and less assertive pattern
(Bornstein, 1999; Johnson, 1996; Mendoza, 2000). O’Barr (1982) studied courtroom
speech style in North Carolina. The linguistic variable most critical to his findings was
the use of powerful versus powerless speech:
“Powerless speech was characterized by a number of features that occur with high
frequency. These include hedges ("I guess..."), super-polite forms ("I'd really
appreciate it if..."), tag questions ("John is here, isn't he?"), speaking in italics
(intonational emphasis equivalent to underlined words in written language such as
emphatic 'so' or 'very'), emphatic adjectives (divine, charming, sweet lovely),
hypercorrect grammar and pronunciation (bookish grammar and formal
enunciation), lack of humor, direct quotations (rather than paraphrasing), use of a
special lexicon (such as the color words magenta or puce), and question
intonations in declarative contexts (such as in response to the question, "When
will dinner be ready?" saying "Around 6pm." Mock jurors’ ratings of taped
testimony indicated clear and significant differences between the testimony given
in powerful and powerless speech. Jurors who heard powerful speech rated the
witness as more believable and more convincing. Moreover, the raters judged the
witness using the more powerful speech style as significantly more competent,
trustworthy, and intelligent” (O'Barr, 1982).
In addition to the important issue of using powerful verbal speech patterns, there are
indications of problems majority group members have in accurately decoding the nonverbal mannerisms of minority group members. Researchers have labeled this
phenomena “the demeanor gap” (Rand, 2000) and express concerns that if the ‘demeanor
gap’ is not addressed, white jurors may believe they detect deception when instead they
are observing the deference and indirectness meant to communicate respect to the
questioner. Therefore, witness preparation strategies should attend to non-verbal as well
as verbal preparation.
A failure of justice: Juries and Racism
16
Making your client as attractive as possible. As old-fashioned as it may seem, there is
abundant research to indicate that the “what is beautiful is good” stereotype (Castellow,
1990) continues to be strong in American society. Physically attractive people are
believed to be intelligent, kind, confident, interesting, sexy, assertive, poised, sociable,
strong, modest, candid, and more exciting than those who are less physically attractive
(Clark, 2000). Preparing your client for trial may well include selection of attire, makeup
and accessories, modifying nonverbal mannerisms, and modifying verbal style.
In general, physically attractive defendants are less likely to be judged ‘guilty’
(Bagby, 1994; Boliver, 1999; Clark, 2000; Kerwin, 1994; Mazella, 1994). Of particular
relevance to racism, is that being attractive is more likely to effect length of sentence than
is race. That is, attractive black defendants receive sentences, if found guilty, that do not
differ from sentences received by white defendants (Bagby, 1994; Rector, 1993).
Additionally, if the defendant is perceived more positively, it is more likely he or she will
receive a ‘not guilty’ verdict, regardless of race (Bagby, 1994). Finally, attractive
defendants are given the benefit of the doubt and more lenient sentencing when the
evidence was ambiguous (Kerwin, 1994).
If your client is not particularly physically attractive, focus on other constructs
such as likable personality, middle-class status, having a spouse and children, a history of
being an upstanding citizen with no criminal record (Boliver, 1999), or similarity to
jurors in terms of general social attitudes or lifestyle (Kerr, 1995).
If your client does not have any of the above characteristics, and you are
unfortunate enough to have an attractive victim or plaintiff on the other side, it would be
potentially helpful to educate jurors about the fact that people tend to favor attractive
people over unattractive ones and specifically urge them to be fair and not show that
common favoritism bias (Castellow, 1990). A study by Friend & Vinson (1974, cited in
Castellow, 1990) found that jurors who were trying to be impartial tended to
overcompensate for their biases—thus resulting in a bias in the opposite direction, with
jurors “leaning over backwards” to avoid showing favoritism to the attractive
plaintiff/victim.
Jury instructions: Advocating for clarity. The research literature strongly suggests that,
even though black defendants are seen as more often guilty than white defendants, clear
jury instructions can serve to mitigate disparate treatment (in either verdict or
punishment) stemming from stereotypes (Lynch, 2000; Pfeifer, 1991).
a.
Specific racial bias instructions. The research is mixed in terms of recommendations
in this area. Modern racism theory would suggest that making the unconscious
stereotypes conscious will result in less discriminatory treatment by white jurors
(Dovidio, 1997). However, there are some bodies of research (on the paradoxical
effects of thought suppression and psychological reactance) that would suggest the
possibility that specific judicial admonishments to avoid racial biases could backfire
(Boliver, 1999; Kassin, 1998). A more cautious approach could be one of subtly
raising the issues of stereotypical beliefs without directly admonishing the jury to
“not do that”.
A failure of justice: Juries and Racism
b.
17
Instructions on ‘forgetting’ inadmissible evidence. Again, the literature is mixed.
Some researchers say that a direct judicial admonishment can result in juror’s
ignoring the inadmissible information (Kassin, 1997). Others say that it is
possible that instructing jurors to disregard inadmissible evidence could result
instead in an increased attention to the information (Kassin, 1998). Still others
suspect that jurors may be more able to disregard unemotional inadmissible
evidence but that they have more trouble disregarding emotional inadmissible
evidence (Edwards, 1997; London, 2000). Additional research findings indicate
that jurors comply with an instruction to disregard when the evidence is
inadmissible due to a lack of credibility but not when it is excluded due to a legal
technicality (Kassin, 1997).
Based on these findings, it would seem reasonable to pay attention to the reasons
for which evidence is inadmissible. If the evidence is emotional and excluded due
to a legal technicality, one might think that jurors will have more difficulty in not
considering that information in their deliberations, even when so instructed.
Evidence that is not emotional and is excluded due to a lack of credibility would
be less damaging.
c.
A final strategy to detract attention from potentially damaging but inadmissible
evidence would be to arouse suspicion about the motives of the source of the
inadmissible information. Attribution research shows that a state of suspicion
about an actor’s motives triggers critical thinking and facilitates the discounting
of behaviors with multiple plausible causes (Kassin, 1997; Kassin, 1998).
Jury Selection Strategies for Mitigating Racial Biases. There are many approaches to voir
dire. Some attorneys choose jurors similar to the defendant. Others choose a cross-section
of jurors. Others take what they get and hope for the best outcome. The social
psychological literature offers a few general thoughts on 1) selecting jurors similar to the
defendant/plaintiff, and 2) on the persuasive power of a small number of jurors.
a.
Selecting jurors similar to the defendant. The selection of jurors similar to the
defendant draws upon the similarity-leniency rule that posits that jurors similar to
the defendant will be less likely to arrive at a guilty verdict and will be less harsh
in any punishment assigned. The literature would indicate a need for some caution
in this style of thinking about voir dire.
When the evidence against a defendant is very strong and the defendant and the
potential jurors are members of the same minority group, a defense attorney may,
in fact, end up hurting prospects for an acquittal by selecting jurors on the basis of
their similarity to the defendant. It is possible that a phenomenon known as “the
black sheep effect” will be activated and jurors will find the defendant’s behavior
inexcusable and proffer a harsher punishment than jurors dissimilar to the
defendant may have (Kerr, 1995).
b.
Selecting jurors to be optimally persuasive. A number of researchers have
addressed the issue of how many jurors it takes to turn around a jury deliberation.
Mock jury research demonstrates that it takes at least 3 jurors who hold an
A failure of justice: Juries and Racism
18
opinion in opposition to the majority in order to sway a majority in a different
direction (Clark III, 1999; Johnson, 1985). Choosing (when possible) minority
jurors who are charismatic and resolute can be helpful (Bowers, 2001). Planfully
selecting task-oriented jurors who may end up as presiding juror can also focus
the jury on the rules and fact to be considered, thereby reducing the power of
extraevidentiary factors (Kassin & Wrightsman, 1983 in Bagby et al, 1994).
c.
Supplemental juror questionnaire items or potential voir dire questions. A number
of items have been identified in the social psychological research literature that
appear to differentiate between people with high levels of modern racism and
those with low levels of modern racism. Using these questions as a screen may
assist in the selection of jury members with low levels of modern racism and
therefore, result in fairer treatment in the jury room.
d.
What is your opinion of interracial marriage? A 1997 Gallup poll found that
61% of whites approve of marriage between blacks and whites compared to only
25% in 1972.While the 1997 poll suggests an improvement, the continuing
disapproval of the 39% is significant. National Jury Project research has found
that whites who continue to disapprove of interracial marriage are also less
accepting of a black person’s claim of discrimination and more likely to acquit a
white police officer accused of beating a black person. Thus, white views of
interracial marriage continue to be an indicator of other racially based
predispositions (Krauss, 1997).
e.
Attribution of racial bias on others. The question of what a juror thinks others
believe about racial issues is extremely important. This question relies on the
tendency people have to believe that others think, act, and feel as they do.
Research participants tended to engage in a projective bias—by overestimating
the degree to which personal intergroup beliefs were shared by others (Brown,
1996). Thus, a potential juror who thinks that ‘society’ has negative feelings about
blacks, may him or herself share those negative feelings—due to a projective bias
in overestimating the degree to which society shares his/her own personal belief
system.
f.
Attributions of aggression. If you saw a picture of a black man named John
hitting another man named Jim, what would you say is the best descriptor of that
picture: “It looks like John hit Jim” or “John appears to be an aggressive
person”. Although modern racists are able to avoid overt expressions of racist
behavior for the most part, their attitudes are often shown in more subtle forms of
expression, such as the way they characterize the behavior of out-group members.
While a low modern racist might be likely to stick to the facts (“John hit Jim”)
when describing a stereotypical behavior performed by an African American,
high modern racists would perhaps be more likely to generalize the specific
behavior to a personality trait (“John is aggressive”) (Schnake, 1998).
g.
Questioning about modern racism. A number of questions are consistently used to
assess levels of modern racism. Questions could be asked and scored to provide a
rough estimate of level of racism. The questions are as follows:
A failure of justice: Juries and Racism
19
Modern racism items (rated on a 5 point scale ranging from 1(strongly disagree) to 5
(strongly agree) are as follows:
1. Discrimination against blacks is no longer a problem in the U.S.
2. It is easy to understand the anger of black people in America.*
3. Blacks have more influence on school desegregation plans than they
ought to have.
4. Blacks are getting too demanding in their push for equal rights.
5. Blacks should not push themselves where they are not wanted.
6. During the past few years, blacks have gotten more economically than
they deserve.
7. During the past few years, the government and news media have shown
more respect to blacks than they deserve.
* reverse scoring to determine racial bias
A failure of justice: Juries and Racism
20
Trial Strategies
Trial strategies drawn from the social psychological literature include:
1) using a story format for the case narrative;
2) addressing any issues related to cross-racial witness identification;
3) being vigilant for additional racial bias when race is not a salient case
theme; and
4) engaging empathy.
a.
Using a story. Use of a story has become commonplace in trial strategy. The
recommendation holds firm. The Story Model is based on the hypothesis that
jurors impose a narrative story organization on trial information. Providing a story
organization for jurors helps them to comprehend the evidence and to reach a predeliberation verdict (Pennington, 1992).
b.
Educate jurors about cross-racial witness identification issues. The “own-racebias phenomenon” (ORB) describes the finding that own-race faces are better
remembered than faces of another, less familiar race (Meissner, 2001).This is not
a difficult concept to grasp—as problems with racial recognition are so
commonplace they have been the subject of both cliché and joke: “They all look
alike” (Gleicher, 1999). While many researchers agree that witnesses are better at
identifying suspects of their own race, they disagree on the extent to which crossracial impairment affects all racial groups (Brady, 1999). It would be wise to
educate jurors about problems with ORB when the only identification is a crossracial one and that identification is not corroborated by anyone else.
c.
Maintain vigilance for racial bias when race is not a salient case fact. This
strategy is a counter-intuitive one. This finding is based in the principles of
modern racism and is explained by a number of researchers. In essence, when
race is a salient factor in a case, white jurors become aware that race is a factor
and that they ‘should’ appear non-prejudiced. When race is not salient, however,
egalitarian norms are not triggered and white people will be more likely to render
judgments tainted by stereotypes (Devine, 1991; Dovidio, 2000; Sommers, 2001).
In other words, when white jurors are not reminded or pressured by situational
cues to avoid prejudice, they often let down their guard and demonstrate bias
(Sommers, 2001).
d.
Engage jurors’ empathy. While jurors are more likely to empathize with members
of their own race (Linder, 1996), there are larger issues with which jurors can
experience empathy during a trial. For example, a mother of any race may weep
in sympathetic distress as another mother describes the death of her child.
In a personal injury suit, for example, one of the greatest challenges is to enhance
the ability of the triers of fact to relate to and identify with the plaintiff. Four
different strategies are recommended to increase juror empathy with the plaintiff:
A failure of justice: Juries and Racism
21
1) explain how the plaintiff actually responded to the incident with emotional
suffering and that they are continuing to suffer;
2) provide jurors with information that will result in an emotional level of
understanding for the jurors by fostering a development of a sense of “how
much it hurt” and how intensely the trauma continues to affect the life of the
plaintiff;
3) enhance the capacity of the jurors to relate the trauma to their own
experiences; and
4) provide jurors with a sense of how this trauma interacts with the plaintiff’s
past traumas (if any) and how it was exacerbated or diminished in intensity or
effect (Mayers, 1995).
It is important to note that empathy is more likely when the juror observes distress rather
than simply imagining it. The ability to imagine hold with power to produce empathy, but
the resulting empathic reaction is typically weak compared to the reaction associated with
the direct observation of a victim (Linder, 1996).
Summary
Despite the protest that jury nullification is being practiced by black jurors, the
literature supports the notion that black plaintiffs and defendants are at a disadvantage in
the American legal system. Major findings of the research literature suggest that when
race-related issues are legitimately introduced as elements of the fact pattern, it has the
effect of reducing the overall impact of racial bias in the jury’s behavior. To the extent
that the racial features of the case can be presented in a manner that brings to the
foreground the possibility that race plays a part in the way the case is viewed, the modern
version of racial bias tends to retreat. The aversion that most of the white public now has
to the idea of being considered a racist can mitigate behaviors that are fundamentally
biased. While the research on the effect of race on the damages awards is filled with
methodological problems, it is clear that all elements of damages are subject to being
diminished if the plaintiff is a racial minority group member. There are strategies
available in the social psychological literature that may help to mitigate the effects of
racism; it is also clear that much more work remains to be done.
Doug Keene, Ph.D.
Keene Trial Consulting
3930 Balcones Drive
Austin, TX 78731
[email protected]
A failure of justice: Juries and Racism
22
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