Racial Discrimination in Criminal Defense Cases Some Jury Selection Questions to Reduce the Problem

Discrimination refers to action against other people on the grounds of their group membership—particularly the refusal to grant members of another group the rights that would be granted to similar members of one’s own group. Traditional out-groups have been members of other races, religions, ethnicities, nationalities, or social classes. Discrimination may also be taken against members of the opposite sex, older adults, adolescents, people of other sexual orientations, disabled persons, or even pro-choicers or pro-lifers. Many members of a certain group develop an active dislike for members of another group.

This can have a large impact on criminal defendants as well as civil clients. In this paper a few questions to test for racial discrimination will be presented. Racial discrimination in the criminal justice system has been documented. Under trial conditions, these attitudes and behaviors can take an extreme and aggressive form and can justify the oppressive treatment of other racial groups. Racism is not an inevitable result of contact between different groups. Members of a particular in-group are not equally prejudiced and those who are can be prejudiced for different reasons. Differentiating between racists and non-racists is critical if the results of jury trials are to be fair to minority clients.

Here are a few questions that measure racism.

What race do you consider yourself? (If you feel more comfortable; just assess race by looking at the juror. For the largest racial groups; remember that there are considerable differences in attitudes toward minorities.)
Are race relations better, worse, or about the same as they were one year ago?
On the whole, do you think most white people in (name of your county, city, or town) want to see African Americans get a better break, or do they want to keep blacks down, or don’t they care one way or the other?
Do you think there is likely to be any serious racial trouble in this community in the next two or three years? If so, please explain.
If African Americans came to live next door, would you move?
Would you have any objects to sending your children to school where a few/half/more than half of the children were blacks?
Do you think there should be laws against marriages between African Americans and whites?
Are you in favor of racial integration, racial segregation, or something in between?
Have you personally, or has any member of your immediate family ever been the victim of a crime you believe was motivated by hatred of your race?
In general, do you think that the progress this country is making towards civil rights for African Americans and other racial minorities is going too fast, too slow, or is about right?
Over the past several years, do you feel there’s been an increase, a decrease, or no change in the level of tension among different racial and ethnic groups in American society?
Do you feel that your race has put you at a disadvantage when seeking a job?
Discrimination against blacks is rare today: completely agree, mostly agree, mostly disagree, or completely disagree?
If you and your friends belonged to a social club that would not let African Americans/whites join, would you try to change the rules so that African Americans/whites could join?
In general, do you think that the progress this country is making towards civil rights for African Americans and other racial minorities is going too fast, too slow, or is about right?
How important is it that social gatherings be made up of people from different races?
In general, do you think that society treats people of all races the same? Yes. No. Please explain.
Have you been discriminated against? If yes, please explain.
Do you think that some people use racial discrimination as an excuse for their own shortcomings? If yes, please explain.
Have you ever been afraid of someone of another race? If yes, please explain.

There is a good chance that I will not be permitted to use all the juror questions that I would like for a particular case. What is important is that we try to use new and more valid and reliable questions and do whatever we can for any given case. Asking more questions and asking questions in different ways is useful. Not addressing racial discrimination when representing a minority client is a substantial mistake.