The Framework for Voir Dire on the Issue of Race

posted by Judge_Burke @ 15:41 PM
September 6, 2016

We all make decisions about what is proper and improper in voir dire questions, particularly when it comes to race. In my experience, voir dire is among the most divisive areas where judges are literally all over the map. Nevertheless, I thought I’d share this and ideally prompt some commentary from readers about how to best conduct voir dire on the issue of race. What follows is taken from a scholarly article, but I think it lends support to my belief that you need to give lawyers a wide berth in voir dire when it comes to questioning about race: 

It is well established that Americans, particularly whites, strongly associate criminal activity with race and race with criminal activity. That is, blacks are generally characterized as aggressive, hostile, criminal, and violent by members of the public (Sniderman and Piazza 1993Sniderman, P., and T. Piazza. 1993. The Scar of Race. Cambridge: Harvard University Press.; Hurwitz and Peffley 1997Hurwitz, J., and M. Peffley. 1997. “Public Perceptions of Race and Crime: The Role of Racial Stereotypes.” American Journal of Political Science 41 (2): 375–401.10.2307/2111769; Peffley and Hurwitz 1998Peffley, M., and J. Hurwitz. 1998. “Whites’ Stereotypes of Blacks: Sources and Political Consequences.” In Perception and Prejudice: Race and Politics in the United States, edited by J. Hurwitzand M. Peffley, 996–1012. New Haven, CT: Yale University Press.). For example, in Devine and Elliot’s (1995Devine, P. G., and A. J. Elliot. 1995. “Are Racial Stereotypes Really Fading? The Princeton Trilogy Revisited.” Personality and Social Psychology Bulletin 21: 1139–1150.10.1177/01461672952111002) follow-up study on Princeton students, 147 white students were provided a checklist comprised of 93 adjectives and asked to mark those that represent stereotypes about blacks. They found that ‘hostile’ and ‘criminal’ were in the top 10 adjectives frequently identified to describe African-Americans. Moreover, in their examination of public attitudes toward youth, race, and crime, Soler (2001Soler, M. 2001. Public Opinion on Youth, Crime and Race: A Guide for Advocates. Washington, DC: Building Blocks for Youth.) found that over 34% of respondents agreed that black juveniles are more likely to commit crime than white juveniles, and 35% agreed that black lows youth are more prone to violence than young people of other races.

Research also shows that the public overestimates the proportion of crimes committed by people of color. Using national survey data, Chiricos et al. (2004Chiricos, T.K. Welch, and M. Gertz. 2004. “Racial Typification of Crime and Support for Punitive Measures.” Criminology 42 (2): 358–390.10.1111/crim.2004.42.issue-2) discovered that a racially diverse group of respondents exaggerated black involvement in violent crime and burglary. Specifically, respondents estimated that 40% of people who commit violent offenses and 38% of people who are involved in burglary are black; however, crime victimization surveys showed these rates to be 29 and 32%, respectively. Based on the results of a nationally representative survey, Pickett et al. (2012Pickett, J. T.T. ChiricosK. M. Golden, and M. Gertz. 2012. “Reconsidering the Relationship between Perceived Neighborhood Racial Composition and Whites’ Perceptions of Victimization Risk: Do Racial Stereotypes Matter?” Criminology 50 (1): 145–186.10.1111/crim.2012.50.issue-1) also discovered that white Americans overestimated black participation in burglaries, illegal sale of drugs, and juvenile crime by 20 to 30%. Overall, studies suggest that whites and respondents from other racial and ethnic backgrounds racially typify crime.

Some scholars assert the criminalization of black people is facilitated in large part by racially biased media representations of crime. Media messages are potent tools in the construction of ‘otherness’ and an ‘us vs. them’ discourse, common in crime stories, where ‘us’ – the good guys – need to be wary of ‘them’ – the predatory criminal, who is often portrayed as animalistic, vengeful, violent, and a member of a racial/ethnic minority group (Barak 1994Barak, G. 1994. “Between the Waves: Mass-Mediated Themes of Crime and Justice.” Social Justice 21: 133–147.). In her examination of local news programming in Chicago, Entman (1992Entman, R. M. 1992. “Blacks in the News: Television, Modern Racism and Cultural Change.” Journalism & Mass Communication Quarterly 69: 341–361.10.1177/107769909206900209) found that 84% of crime stories about African-American suspects involved violent crime compared to 71% of white offenders. Furthermore, 38% of black suspects were featured while being physically held or restrained by officers compared with 18% of white suspects being featured in similar circumstances. Because the public relies on the mass media as their primary source of information about crime, the high volume of crime news that involves members of specific racial and ethnic groups is enough to convince the average person that the face of crime is colored (Rome 2002Rome, D. 2002. “Stereotyping by the Media: Murderers, Rapists, and Drug Addicts”. In Images of Color, Images of Crime, edited by C. R. Mann and M. Zatz, 71–81. 2nd ed. Los Angeles, CA: Roxbury.). Indeed, the stereotypical image of blacks as a criminal threat has led to perceptions of the ‘criminalblackman’ (Russell 1998Russell, K. K. 1998. The Color of Crime. New York: New York University Press.), which play into the public’s fear of crime.

Spurred by mass media, criminalized depictions of black males have produced a host of damaging consequences, including the perpetuation of negative stereotypes about blacks. However, these images and ideologies of black criminality are not new. During the earliest periods of American development, European colonists transported Africans to the New World as chattel slaves, a degradation that lasted well into the twentieth century (Bell 1992Bell, D. A. 1992. Race, Racism, and American Law. Boston, MA: Little Brown., 2). In order to justify their enslavement, black people had to be viewed as inferior beings, and were often portrayed as animalistic and violent ‘savages’ who were inherently criminal (Fishman 2006Fishman, L. T. 2006. “The Black Boogeyman and White Self-Rightousness.” In Images of Color, Images of Crime, edited by C. R. MannM. S. Zataand N. Rodriguez, 197–211. New York: Oxford University Press.; Unnever and Gabbidon 2011Unnever, J. D., and S. L. Gabbidon. 2011. Race, Racism, and Crime. New York: Taylor & Francis.). The legacy has persisted with images of ‘menacing’ blacks, most recently revived in the 1970s and 1980s in the context of the ‘War on Drugs,’ which some have come to see as a ‘War on blacks’ (Nunn 2002Nunn, Kenneth B. 2002. “Race, Crime and the Pool of Surplus Criminality: Or Why the ‘War on Drugs’ Was a ‘War on Blacks’.” Journal of Gender Race and Justice 6: 381–445.). That is, blacks have borne the brunt of the drug war, as they are disproportionately arrested, prosecuted, convicted, and imprisoned for drug offenses (Tonry 1995Tonry, M. 1995. Malign Neglect: Race, Crime, and Punishment in America. New York: Oxford University Press.; Alexander 2010Alexander, M. 2010. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.). Ultimately, it is argued that the structural inequalities facing many blacks is rooted in the nation’s history, and is a product of, and integral to, their ongoing racialization (Wacquant 2002Wacquant, L. 2002. “From Slavery to Mass Incarceration: Rethinking the ‘Race Question’ in the US.” New Left Review 13: 41–60.; Omi and Winant 2015Omi, M., and H. Winant. 2015. Racial Formation in the United States. 3rd ed. New York: Routledge.).

The historical criminalization of blacks coupled with excessive news coverage portraying African-Americans as criminal is integral to the formation of implicit bias (Staats and Patton 2013Staats, C., and C. Patton. 2013. State of the Science: Implicit Bias Review. The Kirwan Institute. http://www.kirwaninstitute.osu.edu/reports/2013/03_2013_SOTS-Implicit_Bias.pdf.). Implicit bias refers to the attitudes and stereotypes that impact our understanding, actions, and decision-making processes in an unconscious manner (Staats and Patton 2013Staats, C., and C. Patton. 2013. State of the Science: Implicit Bias Review. The Kirwan Institute. http://www.kirwaninstitute.osu.edu/reports/2013/03_2013_SOTS-Implicit_Bias.pdf.). Research with police officers has examined implicit bias in law enforcement settings. Correll et al. (2007Correll, J.B. ParkC. M. JuddB. WittenbrinkM. S.Sadler, and T. Keesee. 2007. “Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot.” Journal of Personality and Social Psychology 92 (6): 1006–1023.10.1037/0022-3514.92.6.1006) used video game simulation in which armed black and white men appeared, and instructed officers from the Denver Police Department (who were predominately white) to shoot armed targets as quickly as possible. They found that officers shot armed black suspects more quickly than armed white suspects, but that they were less likely to mistakenly shoot at unarmed black suspects than members of the general public. Likewise, another study of police officers from across the USA found that not only were officers quicker to shoot black suspects than white suspects but also that the officer’s accuracy was higher in scenarios involving African-Americans than for scenarios involving whites (Sadler et al. 2012Sadler, M. S.J. CorrellB. Park, and C. M. Judd. 2012. “The World is Not Black and White: Racial Bias in the Decision to Shoot in a Multiethnic Context.” Journal of Social Issues 68: 286–313.10.1111/j.1540-4560.2012.01749.x). Automatic implicit bias has also been found to negatively influence officers’ interpretations of blacks’ behavior (as suspicious or aggressive), and the perception of blacks as more blameworthy, thus meriting harsher sanctions (Graham and Lowery 2004Graham, S., and B. S. Lowery. 2004. “Priming Unconscious Racial Stereotypes about Adolescent Offenders.” Law and Human Behavior 28 (5): 483–504.10.1023/B:LAHU.0000046430.65485.1f; Richardson 2011Richardson, L. S. 2011. “Arrest Efficiency and the Fourth Amendment.” Minnesota Law Review 95 (6): 2035–2098.). Available evidence suggests that the general public is aware of such bias on the part of law enforcement.  


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