When race matters in a case, it plays a role in the outcome, just like the state’s burden of proof, the credibility of witnesses, the identification of the defendant-client, how the jury views the police involved in the case, or, if the client testifies, how believable the jury thinks the client is. Race matters to this degree because race affects the way jurors view each of these issues.
This Essay addresses the importance of a trial lawyer discussing the lawyer’s fears about a case, including issues of race, in jury selection. Part I explains why race matters and how important race-salient jury selection is, especially when race is not an obvious issue in the case. Part II argues that discussing topical issues that may affect how jurors approach a case, especially those issues in the community in which a trial is taking place, is a necessary subject for juryselection. Finally, Part III uses events in Ferguson, Missouri, in 2014, to suggest how an attorney could approach discussing a topical matter, such as Ferguson, with the panel of prospective jurors.