I am racist in ways I am not even aware. Most people are no different than me. We literally do not know what it is like to walk in another person’s shoes, especially if they are of another race. Researchers refer to this as “implicit bias.” If you are curious about your racial thinking process, take the Implicit Association Test found at https://implicit.harvard.edu/implicit/
“What often surprises members of the court community and other professionals is that more subtle biases or prejudices can operate automatically, without awareness, intent, or conscious control. Personal attitudes and acquired knowledge often help individuals function more efficiently by making it easier for the brain to recognize and respond quickly to new people or situations. But some attitudes, especially racial and cultural stereotypes, distort decision making by unfairly influencing judgments about others. Although explicit or consciously endorsed racial prejudices in contemporary American society may be on the decline, this subtler form of implicit racial bias persists.” Elek, J. & Hannaford-Agor, P. First, Do No Harm: On Addressing the Problem of Implicit Bias in Juror Decision Making, Court Review 49 (2013), http://www.ncsc-jurystudies.org/What-We-Do/~/media/Microsites/Files/CJS/What%20We%20Do/First%20Do%20No%20Harm.ashx
This realization came to me as I was working on developing questions about race for a recent trial. One of the central contributions of the research on implicit bias is the conclusion that even people who do not want to be biased, and indeed believe that they’re not, will still carry implicit associations that influence how they evaluate others.
Trial lawyers are aware that the criminal system at trial attempts to decode racism by voir dire or jury selection (“Raise your hand if you are a racist.”) and jury instructions (“The court is telling you not to be racist.”) It seems to me that if someone is racist these approaches will do no good. Most racists today are not going to admit being racist in public. People who are have some form of implicit bias may feel threatened or insulted. After all, no one likes to be told when they are wrong. Finally, taking a cue from those who want to fly a confederate flag, some people may feel a court is insulting their personal independence: the right to hold a racist view.
So what is the best solution (right after self-awareness)? More diverse jury composition. “More diverse juries tend to produce decisions less biased by the defendant’s race, presumably because they force jurors to engage with one another on an equal basis in deliberations and to expressly confront different conclusions about the trial evidence that were reached based on the jurors’ unique life experiences and attitudes, including implicit biases.” Elek, J. & Hannaford-Agor, P., supra.
But what do you do if, well, as in my case, my client was one of three African Americans in the not just on the panel but in the whole courtroom? Worse given the racial composition of the particular county, striking the panel would change faces but not the races of the potential jurors. One thing that judges should seriously consider is allowing written juror questionnaires in addition to oral voir dire. Studies show people are more honest when answering these questionnaires than when asked the question in open court. Chang, L, & Krosnick, J. A.. Comparing oral interviewing with self-administered computerized questionnaires Public Opinion Quarterly, 1-14 (2010). Second, contrary to what many judges believe, potential jurors are more likely to lie when a judge asks them voir dire questions than if asked by a lawyer. So courts should allow for wide open voir dire, even on topics the court has already asked about. Susan Jones, Judge-Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor, Law and Human Behavior, Vol. 11, No. 2 (1987), http://www.juryresearchinstitute.com/img/articles/Judge%20vs.%20Attorney.pdf Third, right at the start, try and get potential jurors to accept their implicit bias and acknowledge that the particular case may not be right for them. Attorney Dawn Rablin has a wonderful introduction in voir dire where she explains that everyone has “baggage” that they carry with them. It is neither right nor wrong it is simply who the person is. It lets the jurors know you accept them for who they are so the self-disclosure can begin. She further explains that depending on what “baggage” a person carries with them determines if they are right for a case. I think it is a wonderful way of getting people to acknowledge they may have certain biases and in a non-judgmental way get them to talk about in the context of a case.
Finally when discussing race with a potential jurors, it is critical for that awareness to emerge in response to open-ended questions and not through the close-ended (yes or no, or “wouldn’t you agree”) questions that sometimes dominate voir dire. Cynthia Lee, A new approach to voir dire on racial bias, 5 UC Irvine LR 843 (2015), http://www.law.uci.edu/lawreview/vol5/no4/Lee.pdf
Lee explains, “Open-ended questions that encourage reflection and thought about the powerful influence of race would be better than close-ended questions that simply encourage the prospective juror to give the politically correct response.” She shares one example provided by Jonathan Rapping of Gideon’s Promise:
You have just learned about the concept of [implicit racial bias]. Not everyone agrees on the power of its influence or that they are personally susceptible to it. I’d like to get a sense of your reaction to the concept of subconscious racial bias and whether you are open to believing it may influence you in your day-to-day decision-making. Let me start by asking for your reaction to learning about the ideas of implicit, or subconscious, racial bias.
Lee adds other suggestions for bringing racial bias to mind, like asking panelists about significant interactions that they have had with members of other races, or about admired African American figures.