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Monday, September 14, 2015

Subconscious Juror Bias

I am a big fan of juries. But it is our job as lawyers to be sure that we structure the process of summoning, seating, and using juries in a way that maximizes their effectiveness. I have argued that we need to do a better job of writing instructions they can understand (because they really try), and that broader jury question formats are more consistent with the political and instruments purposes of the jury. My interest became more than academic when I actually served as a juror in a criminal trial in 2014. That experience reinforced my theoretical expectations: a very diverse group of jurors analyzed the evidence, listened to and learned from each other, deliberated carefully, referred to the court's instructions, and took the process very seriously.

I was so enthusiastic about the experience that, the following semester, I taught a seminar about juries. The students read a lot of empirical information about juries -- from selection through deliberation and on to post-service issues. And they did a bit of research of their own.  (The students also blogged, which I recommend as a way to get students to think and write). One issue kept coming up in almost every context: the impact of juror biases, especially racial biases, on the entire jury system. The Batson process would be laughable if the impact weren't so serious. In addition, as in other areas of the law, subconscious bias on the part of people who believe themselves to be racism-free is hard to prove.

That's why I found this recent New Jersey case, State v. Brown & Smith, so fascinating. Brown and Smith were charged with carjacking, and their defense was that they were not the carjackers. During jury deliberations, Juror #4 told two other jurors that she had seen two African-Americans in her neighborhood and this made her “nervous” because this was not typical in the area where she lived. She therefore thought this “may have had some kind of sinister connection to the trial.”  The judge questioned all three jurors and assured them that they were not in danger, but the jurors' assumptions about race went largely unexamined.

In considering on appeal whether the jurors should have been removed, the Appellate Division got it:

When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based only on the race of the participants, she revealed a deeply-rooted, latent racial bias that required her removal from the jury. The trial judge erred in permitting her to remain on the jury and continue deliberating merely based on the juror's self-serving denial of racial bias.  Her initial instinctive, subliminal association of race with criminality or wrong-doing far trumped her subsequent assurances of impartiality. In her willingness to come forward and candidly report her misgivings, Juror 4 also revealed her unawareness of how engrained her racial bias was in her subconscious. This incongruity between Juror 4's conscious acts and latent beliefs is one of the most pernicious, unintended aspects of our jury system. (p. 3 of PDF)

The court wrote at length about the trial process, hoping to provide guidance to trial judges that would make clear that the trial judge's attitude -- "[W]e expect to some extent people have developed certain prejudices, some fixed ways of thinking" -- is unacceptable. A juror's assurance that he or she has no biases, or can set them aside, should not overcome evidence of lurking racial profiling.

By the way: for a wonderful weekly email with news related to both civil and criminal juries, subscribe to the National Center for State Court's Jur-E Bulletin.

Posted by Beth Thornburg on September 14, 2015 at 09:30 AM in Blogging, Civil Procedure, Criminal Law, Judicial Process, Teaching Law | Permalink


I am a big fan of Mark Spottswood's work on this & related subjects, if you don't know it already:


Posted by: Brian L. Frye | Sep 16, 2015 4:29:33 PM


Are you aware of the research indicating that jurors and judges make very similar decisions? See, e.g., Robbenolt, Evaluating Juries by Comparison to Judges: A Benchmark for Judging, 32 Fl. State Univ. L. Rev. 469 (2005). This is not to say there are not problems with juror decision-making (and judge decision-making too) caused by a host of motivational and cognitive biases, but the process does not seem to be random.

Posted by: Stuart Ford | Sep 15, 2015 11:47:23 AM

I like juries, too, and roulette wheels, and twenty-sided die, and any other system that can answer extraordinarily important questions with answers that are effectively randomly determined. Oh, and when such results aren't randomly determined, this blog post provides support for the proposition that such results are informed by biases that make such results somehow even worse. So, yeah, a lot to like there.

Posted by: Jon | Sep 14, 2015 10:56:09 PM

I, too, have used a blog to encourage student engagement (using wordpress.com) -- and, coincidentally, to teach behavioral science as part of the curriculum. It's been very successful, I think. I wonder how prevalent this practice is. Any thoughts? ([email protected]).

Posted by: Tigran Eldred | Sep 14, 2015 10:31:25 AM

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