A New Approach to Voir Dire on Racial Bias

Abstract

One question that attorneys in racially charged cases face is whether to attempt to conduct voir dire into racial bias. Voir dire is the process of questioning prospective jurors to ensure that those chosen to sit on the jury will be impartial and unbiased. Whether it is a good idea from a trial strategy perspective to voir dire prospective jurors when an attorney believes racial bias may have played a role in the events underlying the case is a question over which reasonable minds can disagree. Perhaps the most common view is that reflected by Albert Alschuler who suggested twenty-five years ago that any voir dire into racial bias would be minimally useful. In this article, I challenge Alschuler's belief that voir dire into racial bias is of minimal benefit. I argue that calling attention to the possibility of racial bias in either the actions of the individuals involved in the case or the jurors themselves can raise the salience of race and encourage jurors to view the evidence in a less biased way than if they were not paying attention to the possibility of racial bias. While I agree with Alschuler that a simple, close-ended question like Are you going to be biased against the defendant because of his race? is unlikely to be helpful, I believe a series of open-ended questions, asking jurors to reflect upon how racial bias, both explicit and implicit, might affect their ability to impartially consider the evidence, can be beneficial. My article proceeds in three parts. In Part I, I review the Supreme Court's jurisprudence on voir dire into racial bias. In Part II, I examine recent social science research that may help answer the question whether calling attention to race during voir dire helps or hurts. On the one hand is a wealth of empirical research conducted over the last decade that strongly suggests calling attention to race motivates jurors to treat Black and White defendants equally. These studies indicate that when race is not highlighted, jurors tend to be more punitive and less empathetic toward Black defendants than White defendants. On the other hand are a few recent studies suggesting that when individuals are made aware of extreme racial differences in the prison population, i.e. when they are given information that suggests there are many more Blacks and Latinos than Whites in prison, Whites are more likely to support punitive criminal justice policies. I conclude in Part III that as a matter of trial strategy, it is best for an attorney concerned about racial bias to confront the issue of race head on. I argue that it is best to do so early and often, rather than waiting until just before the jury deliberates, as it may be too late by then to change jurors' minds.