Mikah Thompson (UMKC School of Law) has posted Bias on Trial: Toward an Open Discussion of Racial Stereotypes in the Courtroom (Michigan State Law Review, Forthcoming) on SSRN. Here is the abstract:
In the 2017 case Pena-Rodriguez v. Colorado, the U.S. Supreme Court discussed several safeguards that are in place to assist the trial court in identifying racial bias among jurors. These safeguards include voir dire examination regarding racial bias, observation of juror demeanor and conduct that might demonstrate racial bias, reports of racially biased comments or actions by jurors during trial, and non-juror evidence of racial bias after trial. The Court acknowledged that these safeguards may be insufficient at times and therefore added a fifth one, holding that trial courts may review evidence suggesting that racial bias was a motivating factor in a juror’s decision to convict a criminal defendant even when the evidence of bias rears its head during otherwise non-impeachable jury deliberations.
This Article demonstrates that the safeguards identified by the Court must be improved if they are to assist trial courts in ferreting out juror bias.
Social science research has made clear that a majority of Americans carry some level of subconscious or implicit bias against racial minorities and that this bias manifests itself in the application of racial stereotypes. These stereotypes can influence many aspects of the jury’s functions. Until courts and legislatures are willing to craft safeguards that will address the impact of bias head-on, the jury system will continue to be infiltrated with bias.
I believe that the first step in ridding the jury system of racial bias is to tell the truth about the prevalence and effect of bias. This includes naming the stereotypes that are at play whenever a person of color enters a courtroom. Through honest, open dialogue, we can begin to chip away at the justice system’s tradition of discrimination. I acknowledge that these truths may make us uncomfortable, but the truth and reconciliation process tells us that we can heal only after we have sat in the discomfort.
Section I of this Article explores the prevalence and impact of racial bias among jurors. This Section reviews the social science research establishing that bias, whether conscious or unconscious, affects the way we perceive those who are different from us. This Section also names many widely known stereotypes about minorities and discusses how those stereotypes affect the jury’s core functions of character assessment, witness credibility assessment, and fact interpretation and recall. Section II briefly reviews the facts of Pena-Rodriguez and discusses the two preemptive safeguards that purportedly protect parties from racial discrimination in the courtroom. This Section demonstrates that those two safeguards, voir dire and jury instructions, are not universally available to criminal defendants and, when used, are not always effective. Finally, Section III details my proposals for improving voir dire and jury instructions in a way that places the truth at the forefront and moves our system toward an open discussion of racial bias in the courtroom