Implicit Bias Infects Jury Selection

The right to a jury trial is one of the most important rights in our criminal justice system. An accused has a constitutional right to be judged by a jury of his/her peers. But seasoned criminal defense lawyers know that, while this sounds good on paper, in practice, things are often done a bit differently. It is not unusual for a minority defendant to begin jury selection having several minorities as potential jurors, only to find that those persons have been removed by the prosecutor for some flimsy reason. The U.S. Supreme Court established the foundation for challenging racial bias in jury selection in the seminal case of Batson v. Kentucky. This case prohibits lawyers from using race as a basis for a peremptory strikes of potential jurors. The problem with this ruling is that all that is required to justify a strike of a minority juror is a “race-neutral” reason. Prosecutors soon caught on, and then started coming with all kinds of supposed race-neutral reasons – such as a juror’s “appearance”, a juror’s “lifestyle concerns”, receiving public benefits, “expressing a distrust of law enforcement”, and living in a “high crime area”. But outside of those extreme examples, some prosecutors may not even realize that they are acting on the basis of prejudice.That is what makes implicit bias in jury selection so difficult. The bottom line is that the framework in Batson, is simply not good enough to root out implicit bias. Recognizing this, some states, like Washington, Connecticut and California, have now ruled that a judge need not find purposeful discrimination in dismissing minority jurors. Instead, these states now look at whether an objective observer could view race or ethnicity as a factor in deciding to strike a minority juror. Hopefully, other states will catch on and bring jury selection in to the 21st century.