Hidden Racial Bias – Why We Need to Talk to Jurors about Ferguson
Reprinted by special permission of Northwestern University School of Law, Northwestern University Law Review Online. The citation for this article is Patrick C. Brayer, Hidden Racial Bias: Why We Need to Talk with Jurors About Ferguson, 109 Nw. U. L. Rev. Online 163 (2015)
As recent tragic events confirm, issues of race frame our national identity and define our capacity to achieve true equality for all individuals. By its very nature and traditions, the law is a profession tasked with confronting inequality and discrimination in our society. As issues of race continue to influence our communities, nation, and world, the legal profession will be charged with leading future discussions on how prejudice and bias affect our clients. Unfortunately, as legal professionals, we still struggle with the question of whether to talk about race in voir dire.
This essay discusses our obligation as judges, academics, and practitioners to understand how unconscious racial bias exists in the hidden belief systems of many, if not all, jurors. These actors must also recognize that open dialogue in jury selection is a proven strategy against the effects of individual undetected prejudice. Furthermore, attorneys must concede hidden bias in themselves before fully comprehending the devastating impacts of racial biases. The events in Ferguson, Missouri have exposed potential jurors to experiences dominated by issues of race. The opinions, beliefs, and prejudices of future fact-finders will be greatly shaped by how they perceive these events and interpret the issues.
On August 18, 2014, I found myself in a routine situation for a career public defender: preparing to select a jury in a criminal case by questioning the citizens of St. Louis County, Missouri. Inside of the courtroom, the setting was normal, but the scene outside the courthouse was anything but ordinary. Nine days previously, less than ten miles from where my venire panel sat, eighteen-year-old Michael Brown was shot and killed by a police officer in nearby Ferguson, Missouri. National and local media had descended upon Ferguson and broadcasted images of nightly confrontations between police and demonstrators who firmly believed that an unarmed African-American teenager had been unjustifiably gunned down. Social, Internet, television, and print media were flooded with stories and images of grief, looting, tear gas, political disputes, tactical teams, and burning buildings.
Since the shooting, my assembled panel of potential jurors were exposed to—and in some cases participated in—a national debate on many issues, including how law enforcement and local courts treat people of color and the rights of law enforcement to use force to defend themselves and their communities. On this Monday morning of scheduled jury service, these citizens entered a courthouse that just a few days before—and again the following day—was guarded by a sizeable police presence armed with riot gear and hand ties, poised to repel protesters.
The potential jurors before me all had opinions and experiences concerning how minorities are generally treated by police. Many held views on how police and citizens treated each other on the streets of Ferguson. As a litigator, I needed to know the beliefs, attitudes, and biases of my potential jurors. But I still harbored a very private concern: that this subject was too controversial and too personal, and would become a distraction from the trial. I feared the jurors would resent me and my client for introducing the issue.
It was hypocritical of me to consider avoiding a dialogue about Ferguson with prospective jurors, seeing as I have publicly preached the importance of discussing issues of race in voir dire. Race was not a major issue in my case, but how my jury viewed law enforcement was an important concern. Yet, I still harbored doubts about saying the word “Ferguson.”
An attorney’s own private fears are just one roadblock preventing him or her from discussing race during voir dire. Some judges prohibit any mention of race by litigators. Thus, structural, strategic, and emotional barriers prevent litigators from engaging in an open discussion of race in voir dire. But it remains critically important that actors in the justice system, such as myself, overcome these barriers and address issues of race during the jury selection process. To emphasize this point, this essay surveys psychological research and jury studies that indicate just how large a role race can play in jurors’ decisionmaking processes.
Please read the entirety of this essay (with citations) at http://www.northwesternlawreview.org/northwesternlawreview.org/online/hidden-racial-bias-why-we-need-talk-jurors-about-ferguson
Additionally, two other excellent articles on this topic were published simutaneously by Northwestern University Law Review Online. They are:
(1) Sarah Jane Forman, The #Ferguson Effect: Opening the Pandora’s Box of Implicit Racial Bias in Jury Selection, 109 Nw. U. L. Rev. Online 171 (2015), and (2) Peter A. Joy, Race Matters in Jury Selection, 109 Nw. U. L. Rev. Online 180 (2015),