Challenging Jurors' Racism

Abstract

Despite overwhelming documentation of disproportionate arrest, prosecution, conviction, and incarceration of Black Americans and the many psychological tools available to assess racism and implicit bias, antiracist jury selection remains an understudied area of research. An evidence-based jury selection process is an urgent need, particularly due to the historical and ongoing racial bias within this process. This article attempts to assist judges and attorneys in their efforts to select an impartial jury by equipping them with a better understanding of different forms of racism (e.g., overt, covert, symbolic, aversive) as well as providing an introduction to insightful psychometric tools that can be used to prioritize the selection of antiracist jurors and identify those who hold implicit and explicit biases or others who are likely to be impartial in their assessment of the case. Attorneys have tended to focus on a person’s race or self-reported attitudes to identify racism in potential jurors, but these approaches do not effectively identify aversive racists, who need to be asked direct questions about their behaviors rather than their attitudes. Likewise, efforts to identify racial justice allies amongst potential jurors should be employed to identify people who are able to approach their jury duty in a courageous anti-racist manner. Some tools discussed include the Color-Blind Racial Attitudes Scale (CoBRAS), Symbolic Racism Scale 2000 (SR2K), Modern Racism Scale (MRS), Multigroup Ethnic Identity Measure (MEIM), Black-White Implicit Association Test (BW-IAT), and the Interpersonal Racial Allyship Scale (IRAS). We also propose a novel questionnaire created by the authors that is specifically designed to differentiate racial justice allies from aversive racists. We hope this article will help to inform the development of a more robust system to select antiracist jurors, and ultimately help to create a more just American legal system.

Keywords: jury selection, challenge, peremptory, voir dire, questionnaire, racism, implicit, implied, antiracist, aversive, allies