Voir Dire And Implicit Bias

Supreme Court of North Carolina Reverses Convictions Based on Trial Judge Flatly Prohibiting Questions About Implicit Bias to Prospective Jurors

By Evidence ProfBlogger 

An implicit bias is “‘an association or preference that is not consciously generated and is experienced without awareness.’” Michele Benedetto Neitz, Pulling Back the Curtain: Implicit Bias in the Law School Dean Search Process, 49 SETON HALL L. REV. 629, 656 (2019) (quoting J. Bernice B. Donald & Sarah E. Redfield, Framing the Discussion, in ENHANCING JUSTICE: REDUCING BIAS 5, 14 (Sarah E. Redfield ed., 2017)). So, does a court violate the Constitutional rights of an African American defendant by precluding his attorney about implicit bias during jury selection? That was the question addressed by the Supreme Court of North Carolina in State v. Crump, 851 S.E.2d 904 (N.C. 2020).In Crump, Ramar Crump, a African American man, was convicted of 9 counts of armed robbery and second degree kidnapping, 2 counts of possession of a firearm by a convicted felon, conspiracy to commit armed robbery and 2 counts of assault with a deadly weapon with intent to kill. These charges stemmed from a shootout between Crump and police officers.

During jury selection, the trial judge precluded defense counsel from asking prospective jurors about implicit bias, including the following exchange: [DEFENSE COUNSEL]: Now, something else I want to talk about. This one is a difficult one. It’s called implicit bias. It’s the concept that race is so ingrained in our culture that there’s an implicit bias against people of a particular race, specifically African Americans, that people experience. What I’m going to do is I’m going to ask a couple of pointed questions of you all about that…. When you hear the statement the only black man charged with robbery, what’s the first thing that pops into your head?[THE STATE]: Objection. THE COURT: Sustained. [DEFENSE COUNSEL]: Is there anything that pops into your head when I say that statement, any thoughts? [THE STATE]: Objection.THE COURT: Sustained.

The Supreme Court of North Carolina first found that the trial court erred by flatly prohibited questions about implicit bias. The court then found this error was prejudicial and reversible, agreeing with this argument by the defense:

Defendant asserts that he was prejudiced by the trial court’s restrictions on his questioning during voir dire because the jurors’ determination of his guilt or innocence depended upon their resolution of a core factual dispute—who shot first on the night of 29 September 2013, defendant or the police officers—based solely on their weighing of defendant’s and the officers’ competing accounts. Thus, defendant contends that if he had been given the opportunity to assess the jurors’ possible racial biases and opinions regarding police-officer shootings of black men, he would have been able to intelligently exercise his for-cause and peremptory challenges in a manner that would have allowed him to exclude jurors who might impermissibly base their decision to believe one witness and disbelieve the other on improper biases. In addition, defendant emphasizes that the questions he sought to ask were also relevant to other disputed facts considered by the jury at trial, most notably what inference to *916 draw from defendant’s refusal to immediately surrender to law enforcement officers after the shooting.

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