Jurors and Implicit Bias
In their Burden of Proof column David Paul Horowitz and Lukas M. Horowitz write: The judicial system recognizes and addresses attorney bias in jury selection, bias of eyewitnesses when identifying people of other races in criminal trials, and the impact of implicit bias on attorneys and judges. However, one stakeholder in our judicial system does not receive guidance in implicit bias: jurors. Whether they should, or not, is this month's topic.
January 25, 2019 at 02:40 PM
9 minute read
Bias, of all kinds, is all over the news today, and as our broader society struggles to address bias, the judicial system has too. Steps have been taken to address, and attempt to eliminate, bias at different stages of litigation, by different participants, in both civil and criminal litigation.
The practice of some prosecutors to exclude jurors based on race led the U.S. Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), to bar race-based peremptory jury challenges. The late Judge Sheila Abdus-Salaam noted in the New York Court of Appeals' decision in People v. Bridgeforth, 28 N.Y.3d 567, 571 (2016), “[w]e recognize the existence of discrimination on the basis of one's skin color, and acknowledge that under this State's Constitution and Civil Rights Law, color is a classification upon which a Batson challenge may be lodged.” Batson's holding has been expanded to bar exclusion based on “the basis of race, gender or any other status that implicates equal protection concerns.” Id.
Batson was decided 33 years ago, yet on Dec. 4, 2018, the New York Times carried an article titled “Yes, Jury Selection Is as Racist as You Think. Now We Have Proof.” We have a long way to go, baby.
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