In an effort to empanel more diverse juries, California will now pull names from tax rolls. The court currently relies on drivers licenses and voter registration to call people for jury duty.
krcrtv.com: CA courts will use state income tax records for jury duty starting Jan. 2022
Washington Post has an article examining different reform efforts around the country to remove racial discrimination in jury selection.
As efforts to reform the criminal justice system at the federal level have largely stalled, state policymakers are opening a new front in the fight to reduce bias in the system by aiming to eliminate racial discrimination in jury selection...
Washingtonpost.com: Many juries in America remain mostly White, prompting states to take action to eliminate racial discrimination in their selection
Interesting Q and A with Jasmine Gonzales Rose about English proficiency and jury service.
Parkrapidenterprise.com: Minnesota jurors must speak English — some worry that's a proxy for race in jury selection
In Tennessee v. Gilbert, the defendant appealed his conviction for aggravated assault, reckless endangerment, and unlawful possession of a weapon by a convicted felon. The Tennessee Court of Criminal Appeals overturned the defendant's conviction based on a violation of the hearsay rule and the jury room decor. Here, the United Daughters of the Confederacy maintained the Giles County Courthouse to include the jury deliberation room. As a result, the jury room included a number of mementos of the Confederacy which exposed jurors to extraneous prejudicial information and violated the African-American defendant's constitutional rights to a fair trial conducted by an impartial jury, due process, and equal protection under the law.
This essay calls for an expansive view of Fourteenth Amendment equal protection against the discriminatory empanelment of juries grounded upon a culture of systemic racism. For an individual juror fundamental elements of survival during a pandemic are access to health care, safe transportation, and connective technology. Yet, structural and systemic racism precludes many potential jurors of color from securing these necessary supports, thus denying them the ability to be recognized on juror source list or accommodated for jury service. Jury service is a direct and impactful act of citizen agency over the justice system, and the systemic exclusion of individuals from jury service based on race and economic status is a denial of that agency and a constitutional violation. Supreme Court rulings like Duren v. Missouri are inadequate to provide relief in the face of such violations and only provide outdated and ineffectual remedies to this mass denial of equity.
Every week brings a new story about racialized linguistic discrimination. It happens in restaurants, on public transportation, and in the street. It also happens behind closed courtroom doors during jury selection. While it is universally recognized that dismissing prospective jurors because they look like racial minorities is prohibited, it is too often deemed acceptable to exclude jurors because they sound like racial minorities. The fact that accent discrimination is commonly racial, ethnic, and national origin discrimination is overlooked. This Article critically examines sociolinguistic scholarship to explain the relationship between accent, race, and racism. It argues that accent discrimination in jury selection violates constitutional and statutory law and focuses on Title VI of the Civil Rights Act of 1964, equal protection under the Fourteenth and Fifth Amendments, and the fair cross-section requirement of the Sixth Amendment. It situates accent discrimination within the broader problems of juror language disenfranchisement and racial subordination in the U.S. courts. Finally, it advocates for inclusive practices, namely juror language accommodation.
The right to an impartial jury and the right to serve on a jury are defining aspects of the American legal system. However, this nation has yet to fully make good on these guarantees to African Americans. Black people are routinely underrepresented in jury pools and Black defendants often face juries that fail to reflect the communities in which they are prosecuted. Despite laws prohibiting racial discrimination in jury selection and legislation to improve jury representation, the under-representation of Black people on juries persists.
This article draws an unbroken thread from the history of total exclusion of Black people from juries to the contemporary under-representation of Black people in jury pools. Historically, the framers excluded Black people from citizenship, and by extension from serving on juries. Although the Reconstruction Amendments extended citizenship rights to African Americans, racially neutral, but vague juror qualifications enabled state officials to continue excluding Black people from juries well into the Twentieth Century. Today, felony disenfranchisement prevents millions of Americans from being eligible to serve on juries, including a disproportionate number of African Americans.
This article argues that policies to increase racial diversity on juries must account for the centuries’ long exclusion of Black people. Such reforms must be large scale and transformational, addressing juror eligibility standards, fair cross section jurisprudence, and policies governing juror summons. Only then can America’s promise to Black people of an impartial jury selected free from racial discrimination be recognized.
Kentucky has moved one-step closer to increasing the diversity of its jury pool by passing Senate Bill 132 unanimously out of the state senate. The bill is now headed to the state house. If passed and signed by the governor, the new law would add individuals with state issued identification to the master voter list in each county. At present, only those with driver's licenses or voter registration are included in the jury pool.
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.
Eyewitness misidentification is the leading cause of wrongful convictions in our criminal justice system. Own-race bias, the phenomenon of being better able to remember the faces of people who share one’s own race than the faces of people of other races, makes cross-racial eyewitness identifications decidedly less reliable than same-race identifications. Yet absent clear and specific guidance on the shortcomings of cross-racial identifications, juries in criminal trials readily credit eyewitness testimony.
Criminal defense attorneys can play a vital role in reducing the risk of cross-racial misidentifications. With the holding in New York v. Boone, New York recently became one of only a handful of states that require juries be informed about the risks of cross-racial eyewitness identifications in certain circumstances.
Please join Marne L. Lenox, Assistant Counsel at the NAACP Legal Defense and Educational Fund, Inc. (LDF) and co-author of LDF’s amicus brief in New York v. Boone to learn more about:
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