Excerpted From: Rachel Kunjummen Paulose, Black Jurors Matter: Why the Law Must Protect Minorities' Right to Judge, 27 Berkeley Journal of Criminal Law 133 (Fall, 2022) (215 Footnotes) (Full Document)


RachelKunjummenPauloseHistorically, courts, litigants, and scholars have viewed the impartial juror as someone who has not experienced discrimination. In the context of a case in which the very issue is racism, the traditional view has prevented people who have certain experiences, largely people of color, from serving on a jury in order to remedy the wrong. The traditional view has perpetuated alienation of people of color from their government, denied litigants the judgment of the whole community, and perpetuated injustice.

All this has come at the cost of truly representative juries. Does anyone have standing to invoke the rights of the citizens to oversee their government and participate in the judicial process? In a government “of the people, by the people, and for the people,” do not the people possess a right to jury service? If so, does the government have the power to vindicate this service? Could those rights to serve be implicated by explicit bias, as the Supreme Court seems to have recognized, as well as by implicit bias? Does implicit bias reveal itself in the ideal of the purported unbiased juror as an older white male juror? Does this implicit bias exact a toll on individual trials, our government, and our culture that is just as pernicious as explicit bias? Do state legislatures and Congress have the power to remedy this implicit bias by limiting the grounds on which defendants may exercise peremptory strikes?

In this article, I argue that the answer to all these questions is “yes.” I review Congressional attempts to eliminate race as a basis for jury service. I examine the evolution of Supreme Court cases that tiptoe toward recognizing a juror's right to serve and toward a defendant's right to an impartial jury. I consider the role of microaggressions and implicit bias, in denying minorities a seat on the jury by reviewing the few cases in which pretextual reasons are recorded. I describe why the voir dire process must be modified to weed out implicit bias during jury selection to ensure a truly representative jury. I review current state laws prohibiting using race as a basis to strike a juror. I also lay out pending state legislation addressing the role implicit bias plays in juror selection and peremptory strikes. I conclude that Congress and individual state legislatures must amend current laws to explicitly prohibit implicit bias during juror selection. Finally, I consider and respond to critiques of the ideas advanced in this article.

Although implicit bias in trial procedures has inspired many law review articles, no scholar has yet written about the implicit bias ongoing in voir dire of minority jurists who testify truthfully as to their experiences. The present voir dire process unfairly excludes out people who have no actual bias, simply because they articulate a different reality than what white America lives, breathes, and experiences every day. Ironically, the implicit bias of the justice system is given force by the voir dire process, in which attorneys can accuse Black jurists of bias as a way to infringe their right to serve. This article aims to articulate a claim for why minority experiences on the jury fundamentally matter and advocate for minority inclusion as a matter of constitutional law and good public policy.

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Our present legal system demands that minority jurors conform to norms of whiteness by erasing their unique life experiences, at the cost of participating in our judicial process. This implicit bias undermines the integrity of the jury selection process. The judges, lawyers, and litigants who discount the experiences of racial minorities, which in many ways are different than the experience of white people, are preventing democracy from flourishing. Implicit bias in jury selection must be acknowledged, prohibited, and eradicated.

The author is a Visiting Professor at the University of St. Thomas School of Law, a former United States Attorney (District of Minnesota, 2006-08), and a 1997 graduate of Yale Law School.