Jury selection as a funny thing. As I’ve said before, it is far more art than science.
Most courts have a list of standard questions of the ask every juror during jury selection. One of those questions is whether or not the prospective juror is biased for or against a law enforcement witness.
This question leads to the unfair exclusion of African-American jurors.
Courts should stop asking it.
The Purpose of Voir Dire
Voir dire is the process by which the court, and sometimes the parties, ask prospective jurors questions to determine if they would be fair jurors for the case. In many courts, the judge will first ask a list of fairly standard questions to the entire jury pool. Then, each juror will be called to the bench to be asked follow-up questions by the court and the parties about their initial answers to the questions.
The Supreme Court has said that “[v]oir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.” Mu’Min v. Virginia, 500 U.S. 415, 431 (1991). That does not mean that any question is an appropriate one during voir dire. For example, I’ve never seen a court allow the parties to ask a jury to describe her political views.
The Supreme Court has invalidated laws and practices that systematically exclude racial minorities from juries and prevents parties from using peremptory challenges to strike a prospective juror based on race. Voir dire may not be used to advance one party’s agenda to exclude racial minorities from the jury.
The Standard Question about Law Enforcement Officers
But what if a standard question asked by the court systematically excludes members of the jury pool who are African-American? What then?
In many of my trials, the judge will ask a standard question along these lines
At least one law enforcement officer will be testifying during this trial. I will be instructing the jury at the end of the trial of the testimony of the law enforcement officer should be treated the same as the testimony of any other witness and that the jury should not give either greater or lesser weight to the testimony of a witness just because the witness is a law enforcement officer. Do any of you have such strong feelings about law enforcement where the police – either positive or negative – that you would have difficulty following that instruction?
What Happens When the Court Asks this Question?
On the face of it, this is this question seems appropriate. If someone in the jury pool feels very strongly or very negatively about one type of witness who will be testifying and therefore couldn’t be fair in judging that witness’s credibility, then that person shouldn’t be on the jury. Right?
But what happens in practice is this: the vast majority of prospective jurors who answer this question “yes” do not do so because they feel positively about the police. They do so because they feel very negatively about the police. And, not surprisingly, those prospective jurors are often African-American.
It’s no secret that the African-American citizens here in Washington DC and many other places have a more negative view of law enforcement officers than white citizens.
For example, NPR reported in October 2017 that 60% of black Americans say that they or a family member have been stopped or treated unfairly by police because they are black. A survey conducted by the Pew Research Center in September 2017 found that black Americans and Latino Americans were considerably less likely than whites to view police officers positively. Specifically, 74% of whites gave law enforcement positive ratings (a “warm” rating on a scale of cold to warm feelings); in contrast only 30% of black Americans felt the same.
Those views are no doubt influenced not only by personal experience but also by high profile examples of unjustified police violence against minorities.
The problem for jury selection is that when a prospective juror says that he has strong negative views about the police is that the court strikes that juror for cause. The Government does not have to use a peremptory challenge to strike that juror. In my experience, this question leads to the disproportionate use of for-cause strikes against African-American jurors.
That means that the jury selected may not reflect the racial diversity of the community or the diversity of views about law enforcement officers. When my client is African-American, it is yet another roadblock to obtaining a jury of his peers.
Of course, it’s always possible that an African-American prospective juror—even one who has negative views of the police—may not be a good juror for my client. As trial lawyers, though, we often have to rely on generalizations rather than specifics. There simply is not enough time in the jury selection process to delve deeply into a prospective juror’s views and approach to analyzing the evidence they will see.
Two Solutions to the Problem
It’s always easy to throw stones. It’s harder to come up with a solution.
I have three ideas on that front.
First, stop using answers to this question to strike jurors for cause. Instead, make the prosecutor use a peremptory strike to get rid of a juror who doesn’t think he or she can be fair to a law enforcement witness or has strong views about the police.
After all, everyone has biases about certain professions. One prospective juror may believe that a doctor would never lie on the stand or that a teacher is particularly truthful. Another juror may distrust a member of the clergy or a lawyer who testifies.
It is unfair to ask this question of only one type of witness since the answers so often result in excluding young, African American jurors. Trials are full of all types of witnesses.
Second, if the judge believes that this question about law enforcement bias is necessary, then the court should ask other questions to eliminate government-leaning jurors.
For example, the court should ask prospective jurors whether or not they believe that because someone has been accused of a crime, he “must have done something wrong.” The court should ask prospective jurors whether they believe a defendant would lie on the stand to avoid being convicted of a crime. The court should ask prospective jurors whether they would believe “scientific” evidence more than other evidence, if the government intends to rely on that type of evidence at trial.
Third, the court should use the answers to these other questions in the same way it uses the question about law enforcement witnesses: to strike jurors for cause. That way, the results of voir dire is to strike jurors who are likely defense-leaning and those who are likely government-leaning, rather than only the ones who are likely defense-leaning.
If we want fair juries, we have to start asking the right questions and stop asking the wrong ones.