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Excerpted From: Laura Victorelli, The Right to Be Heard (And Understood): Impartiality and the Effect of Sociolinguistic Bias in the Courtroom, 80 University of Pittsburgh Law Review 709 (Spring, 2019)(Student Note)(131 Footnotes)(Full Document)


LauraVictorelliThe Supreme Court has held that the promise of equality to all citizens of the United States, regardless of color, means criminal defendants of all colors have the right to an impartial jury. Over time, however, this impartiality has come into question, especially in the age of the Civil Rights and Black Lives Matter Movements. Studies show that most Americans exhibit automatic preferences for white people and biases against black people. In fact, research indicates that whites who kill black people are twice as likely to be exonerated than blacks who kill whites in stand-your-ground jurisdictions.

The consequences of these biases affect the fairness of trials involving both defendants of color and plaintiffs of color. One such example is Trayvon Martin, who was shot and killed by George Zimmerman while walking in his Florida neighborhood. Throughout the country, skeptical Americans questioned the impartiality of the Trayvon Martin trial and those of other black plaintiffs and defendants.

Naturally, impartiality must come from all actors of a trial, from judges, to prosecutors, to jurors to achieve a fair and just result. However, achieving this vital impartiality is nearly impossible when jurors have preconceived notions of race. While many people may not admit to their inherent racism, or even recognize it, there are certain cultural norms and differences that affect the way we make decisions. Our inherent biases come in as one of the several complex, “psychological processes in which jurors must attend to information, evaluate theories, resolve inconsistencies, and persuade one another in the pursuit of a verdict.” In short, when an unknown or unaddressed bias enters this equation, it undermines impartial results.

Though both black and white jurors have innate biases, the racial makeup of jury boxes and defendants in the United States makes white biases against black defendants especially problematic. Because most jurors are white, and most defendants are black, white juror bias is more consequential and dangerous than bias demonstrated by black jurors.

This Note explores the ways in which sociolinguistics, specifically black speech, triggers juror biases and affects the impartiality of jury decisions. Specifically, it explores the way African American Vernacular English (“AAVE”) is perceived by white jurors and how these perceptions can potentially affect verdicts when there is a black plaintiff or defendant involved.

Section I of this Note will give an overview of sociolinguistics and its effect on racial biases.

Section II will describe the long-studied history of biases exhibited by white juries against black plaintiffs and defendants.

Section III will merge these concepts and discuss the implications of sociolinguistics in the courtroom.

Finally, Section IV will propose some possible solutions to prevent inherent biases triggered by speech perceptions from entering into the courtroom.

[. . .]

Humans have biases, and as a result, any system that relies on people to make judgements of innocence and guilt is inevitably biased. It is only through education and deeper exploration of these tendencies that we will ever know enough to minimize these issues. As sociolinguists like John Rickford research into the future, we will build on our knowledge of this specific bias and be able to better address it in the courtroom, where impartiality is a right guaranteed by the Constitution. Doing so is critical in our criminal justice system, which provides all people, regardless of color, equal protection under the law.

Candidate for J.D., 2019, University of Pittsburgh School of Law.