The effects of race-conscious jury selection on public confidence in the fairness of jury proceedings: an empirical puzzle.

• Author: King, Nancy J.
• Position: Symposium on bias in justice administration

1. INTRODUCTION 1177 II. THE RELEVANCE OF JURY COMPOSITION TO PERCEPTIONS OF JURY FAIRNESS 1182 A. The Effects of Racial Composition on Perceptions of Fairness 1182 B. The Effects of Jury Service on Perceptions of Fairness 1185 III. BEYOND RELEVANCE: MISSING PIECES IN THE EMPIRICAL PUZZLE 1186 A. The Pervasiveness and Strength of the Effects of Racial Composition on Perceptions of Fairness 1187 B. The Effects of Other Procedural Features, Such as Race-Conscious Selection Methods, on Perceptions of Fairness 1187 1. The Relevance of Attitudes Towards Other Types of Affirmative Action 1188 2. Perceptions of Varied Uses of Race During the Selection Process 1190 IV. GROUP DIFFERENCES IN PERCEPTIONS OF FAIRNESS 1190 A. Litigants' Perceptions vs. Jurors' Perceptions 1191 B. The Perceptions of Minority Group Members vs. the Perceptions of Majority Group Members 1192 V. HOW EMPIRICAL INFORMATION CAN ASSIST COURTS ASSESSING JURY SELECTION PROCEDURES THAT CONSIDER RACE 1195 A. Helping to Frame the Normative Questions 1195 B. Two Illustrations 1197 VI. CONCLUSION 1201 I. INTRODUCTION

   Regulating the selection of criminal juries has never been particularly easy for the Supreme Court, and it will soon become even more difficult. For several decades, the Court struggled to define and secure the criminal defendant's Sixth Amendment, equal protection, and due process rights to be judged by juries chosen without discrimination.(1) Recently, dissatisfied with the inability of this defendant-centered approach to control discriminatory selection practices,(2) the Court turned its focus from the rights of defendants to the rights of potential jurors whose opportunities for jury service are affected by jury discrimination. In Powers v. Ohio,(3) the Court held that a peremptory challenge based on race violates the equal protection right of the challenged veniremember not to have her opportunities for jury service determined by her skin color.(4) Powers and its progeny(5) have placed defendants in the secondary role of enforcers of jurors' equal protection rights, granting defendants relief whenever jurors' rights are violated. This shift away from litigant rights to juror rights solved some doctrinal problems but created others. One of these problems is the subject of this essay--the task of judging when, if ever, the Constitution permits racial preferences in jury selection.

   The Court's heightened protection for potential jurors is on a collision course with increasingly popular race-conscious measures designed to secure representative juries. As more and more lawmakers recognize the dangers of ignoring the effects of racial underrepresentation on juries, selection methods that take account of race have proliferated. The race of potential jurors is now considered by judges choosing trial venues, by jury commissioners selecting names for jury source lists, by jury clerks selecting names of qualified jurors, and by judges choosing grand jurors and grand jury forepersons.(6) Defendants, the designated enforcers of colorblind jury selection, are already seeking relief from convictions and indictments by advocating expansive interpretations of the juror's right to be free from race-based treatment. One African-American defendant, for instance, successfully challenged his indictment by convincing an appellate court that the trial judge violated the rights of potential grand jury forepersons when the judge, attempting to remedy past discrimination against African-Americans, chose an African-American grand juror to serve as foreperson.(7) Others have challenged race-conscious efforts to diversify jury lists,(8) venires,(9) and grand juries.(10) Judging from the hostile reception the federal courts have extended recently to race-conscious efforts to influence the election of legislators,(11) proponents of race-conscious reforms in jury selection can anticipate serious judicial resistance to their efforts as well.

   One way to negotiate between the interest of the defendant in securing a racially diverse jury and the interest of potential jurors in race-neutral treatment is to focus instead on a third interest, the interest of society in maximizing public confidence in the fairness of jury proceedings. In the equal protection parlance with which courts inevitably frame these questions, allocating opportunities for jury service among potential jurors on the basis of race should be permissible when it is narrowly tailored to advance the interest of the state in promoting public confidence in the fairness of jury proceedings.(12) Focusing on what is good for society rather than on the rights of jurors or the rights of defendants has at least two advantages. It directs our attention to a principled basis for deciding what to do when the interests advanced by these rights conflict, and it recognizes that social groups, large and small--not just individuals--are affected by jury procedures.

   Yet conditioning the scope of rights upon the reaction their protection may trigger is a complex task. Judges must decide if race-conscious procedures that ensure greater racial diversity or representation will create more or less trust in the fairness of jury proceedings. Ostensibly, their decisions should be premised upon accurate information about public perceptions of those procedures. Like other uses of public sentiment to define legal rules,(13) an appearance-of-fairness approach to evaluating affirmative action in jury selection raises questions of proof, precedent, and policy. Is a judge's personal assessment enough proof of public attitudes, or are studies of particular rigor and specificity required?(14) Does a determination of public sentiment in one case preclude a different determination in another case?(15) Do the purposes of equal protection require that community attitudes be evaluated in particular ways? In this essay, I consider the insights that opinion polls and procedural justice research(16) can offer judges who will consider such questions regarding jury selection procedures that take account of race.(17)

   Existing research confirms that the product of affirmative action in jury selection--racially representative juries--can enhance perceptions of jury fairness. Little information is available, however, about reactions to race-conscious means of achieving this end. The research does not tell us whether or not litigants or observers would react negatively to various race-based means of obtaining racial representation, or whether potential negative reactions would cancel out or overshadow the positive reactions that representative results produce. Nor does it tell us whether public sensitivity to racial representation on juries or to the methods used to attain that representation would vary with locality, time, or case type. The available information does strongly suggest that responses to these procedures may differ among groups. The existence of group differences poses what is probably the most significant challenge for courts that assess the effects of race-conscious jury selection on public confidence in the fairness of the jury proceedings--the challenge of deciding when and why the perceptions of some may be more significant than the perceptions of others.

2. THE RELEVANCE OF JURY COMPOSITION TO PERCEPTIONS OF JURY FAIRNESS

   Jury selection procedures that increase racial representation on juries could improve the public image of our jury system as fair and unbiased in two ways. First, increasing the racial and ethnic diversity of juries can make particular jury decisions seem fairer to litigants and observers, which in turn can bolster support for the jury as an institution. Second, the jury may function as a "school for civic duty"(18) in which jurors learn about the responsibilities of citizenship and form stronger bonds to their government and its institutions.(19) In exposing more citizens to the experience of serving as jurors, jury selection procedures that are more inclusive could foster greater acceptance of jury proceedings. I will address the empirical support for these two theories in turn.

   1. The Effects of Racial Composition on Perceptions of Fairness

      The claim that reforming jury composition in particular cases can improve overall perceptions of the fairness of jury proceedings rests on three premises. First, it assumes that general perceptions of jury fairness are dependent not only upon preexisting beliefs, but also upon exposure to individual jury proceedings. While several researchers have demonstrated that preexisting views about fairness and legitimacy determine "to an important degree" attitudes about institutions such as courts,(20) some research has shown that allegiance to or diffuse support for decision making institutions is not immune to the effects of individual experience. In the words of one team of researchers:

      If citizens bring positive beliefs about courts, law, and government to their encounters, these attitudes serve to preserve a sense of attachment to the regime even in the face of such severe deprivations as imprisonment. On the other side of the coin, for citizens with negative predispositions, experience exaggerates their sense of alienation.(21)

      In other words, education is not the only way to increase support for jury proceedings.(22) We should be able to increase public trust of jury proceedings somewhat by improving the appearance of fairness in individual proceedings.

      Second, jury composition can affect perceptions of the fairness of a jury proceeding only if those perceptions are based in part upon the proceeding itself, not simply upon the jury's decision. One of the central findings of procedural justice researchers is that procedures, independent of verdicts and sentences, influence the acceptance of criminal proceedings. Procedural fairness can persuade participants and observers to accept an outcome as fair even when that decision is not the one they would have preferred.(23)

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