What's the story? An analysis of juror discrimination and a plea for affirmative jury selection.

• Author: Turner, Clem

WHAT'S THE STORY? AN ANALYSIS OF JUROR DISCRIMINATION AND A PLEA FOR

AFFIRMATIVE JURY SELECTION

1. Introduction 289 II. Social Cognition Theory 292

   1. Cognitve Categorizing is Common 293

   2. Cognitive Categorizing Affects Cognitive Judgments 294

   3. Bias Against Minorities -- Specific Studies 295

   4. Effects on Memory and Recall 296

   5. Cognitive Categorizing is Unconscious 297

   6. Conclusion 298 III. The Story Model 298

   1. The Story Model -- A Description 299

   2. Bias Effects on the Model 301

   3. Additional Effects on the Model 302

   4. Conflicting Juror Story Constructions 304

   5. Conclusion 306 IV. Court Attempted Remedies 307

   1. Voir Dire -- The Challenge for Cause 308

   2. Peremptory Strikes -- Challenges Without Cause 312

   3. Conclusion 316 V. Affirmative Selection 317

   1. Group Deliberation Studies 317

   2. Affirmative Selection -- The Process 318 VI. CONCLUSION 322

1. Introduction

   The Sixth Amendment to the U.S. Constitution guarantees the right to a trial by jury for any offense that is not classified as "petty" (i.e., any offense with a mandatory imprisonment of longer than six months). Furthermore, the law requires this jury to be fair, impartial, and comprised of the defendant's peers. These requirements supposedly shield innocent citizens from government coercion. There is a significant question, however, as to whether the jury system and its rules designed for impartiality are an effective safeguard of every defendant's rights.(1)

   Juries may be prone to discriminate against members of minority groups in the United States. Of the 789,700 male inmates in 1992, 51 %, or 401,700, were black, and of the remaining 388,000, nearly all were white.(2) Because 93% of Hispanic prisoners describe themselves as white and only 7% describe themselves as black, however, a significant portion of those counted as white inmates consists of Hispanics.(3) Thus, the actual number of minorities (i.e., blacks and Hispanics) incarcerated is greater than even these statistics suggest. In 1992, for every 100,000 white and Hispanic residents of the United States, 372 were incarcerated. For black males, the number of prisoners for every 100,000 residents was 2,678 -- over seven times higher. The number of black men incarcerated between the ages of twenty-five and twenty-nine was 7,210 for every 100,000. Of black men aged thirty to thirty-four, 6,299 per 100,000 were in prison. Furthermore, in the District of Columbia during 1991, 42% of the black men aged eighteen to thirty-four were involved with the D.C. criminal justice system, 15% were in prison, 21% were on probation or parole, and 6% were being sought by the police or on bond awaiting trial.(4)

   Critics might argue that these grave statistics do not reflect a problem with the criminal justice system, but are indicative of much greater involvement by minorities in crime. A 1982 sociological study by Alfred Blumstein, however, suggests that this is not the case.(5) If blacks and whites were treated equally once they were under the control of the criminal justice system, racial sentencing disparities would be equivalent to disparities in arrest rates. Yet, taking arrest rate percentages into account, Blumstein found that black defendants were incarcerated at a 20% higher rate than should be expected.(6) His conclusion rests on statistical figures that show that racial disproportionality in arrest rates accounts for only 80% of the racial disproportionality in incarceration rates. Furthermore, the disproportionality of black to white incarceration rates is more pronounced in cases where juries have greater discretion in determining the duration of the sentence.(7) Since this study was published, Congress as well as certain state legislatures have promulgated sentencing guidelines in an attempt to address this problem. Nevertheless, the guidelines cannot address the potential problem of juries convicting blacks of more serious charges based on less evidence than white defendants.

   A study of death penalty cases revealed that defendants found guilty of killing whites received the death penalty in 11% of the cases, but defendants guilty of killing blacks received the death penalty in only 1% of the cases.(8) The death penalty was imposed in 22% of the cases involving black defendants and white victims; in 8% of the cases involving both white defendants and white victims; in 1% of cases involving both black defendants and black victims; and in 3% of cases involving white defendants and black victims. After taking into account thirty-nine nonracial variables, the study determined that defendants charged with killing whites were 4.3 times as likely to receive a death sentence than defendants found guilty of killing blacks.

   Juror discrimination is not the sole direct cause of these disparities. Prosecutors who racially discriminate in their indictments and in the penalties they seek augment the disparity.(9) For example, prosecutors may be taking juror biases into account when they make decisions, negotiate pleas, and exercise their prosecutorial discretion.(10) Therefore, jury discrimination exerts a great influence on the criminal justice system even in those cases where a jury is not involved in the prosecution.

   This Note explores the problem of racial discrimination in criminal juries and suggests that greater minority r-epresentation through affirmative juror selection is necessary to correct this flaw. In Part II, social cognition theory is examined to determine the source of racial bias and show its pervasiveness in human perception. Part III presents the Story Model, a prevalent cognitive model used to explain how juror's decide cases. This analysis reveals the extent to which bias can distort the juror's decision making process and shows why greater cultural diversity is necessary in the petit jury. Part IV analyzes the current judicial remedies for this problem, which recognize that increased cultural representation is essential in jury venires. The reasons for the ineffectiveness of these solutions also are discussed. Part V analyzes psychological data on group dynamics to show that affirmative selection is the best method to effectively insure the necessary diversity in the petit jury.

2. Social Cognition Theory

   The legal system is designed for the "fair and impartial" juror who approaches a trial with an open mind. Through voir dire, the system attempts to screen out those jurors who might contaminate the process with preconceived notions that affect their judgment. Cognitive psychologists suggest, however, that searching for twelve people free from any bias will be futile. Using social cognition theory, they contend that the ideal "impartial" juror does not exist. Social cognition theorists are concerned with the cognitive structures and processes of the human mind. Social cognition theory can be summarized by three central claims: (1) Stereotyping (i.e., creating cognitive categories) is common to all humans; (2) Once in place, stereotypes bias our judgments about others; and (3) We are unaware of the impact these stereotypes have on our decisions.(11)

   1. Cognitive Categorizing is Common

      Social cognition theory rests on the basic premise that in order to function, we must design strategies for simplifying the world around is.(12) Our human minds are not designed to refrain from making instant judgments about our environment and the stimuli around us. This strategy developed in prehistoric times, when it was necessary for hunting, gathering, and reckoning with novel situations. We had to be able to act based on less than perfect information. Certain cognitive side effects are produced, however, when we group objects into categories.(13) Those items that we group into the same category appear more similar than they actually are. Likewise, objects placed in different categories are perceived as being more dissimilar(14) We also create a mental "prototype" of the typical member of each category.(15) For example, we construct examples in our minds of a typical chair (e.g., wooden, no arms), a typical tree (e.g., large brown trunk, green leaves), and even a typical student (e.g., diligent and hard-working).(16)

      The categorical structures that people use to group objects are called schemas. Schemas function like theories about how the world operates.(17) They enable us to "identify stimuli quickly[,] ... fill in information missing from the stimulus configuration, and select a strategy for obtaining further information, solving a problem, or reaching a goal."(18) When we are interpreting a person's behavior, we match the incoming perception against our relevant subset of mental schemas. If the behavior fits an existing schema, it "instantiates" that particular schema.(19) Once instantiated, other elements of the schema are then imposed on the incoming perception, and the information tends to be ordered in a manner that reflects the structure of the activated schema.(20) This method of information processing has enabled humans to learn quickly from their environment and adapt to new, yet similar, surroundings.

      Cognitive efficiency, however, has its price. In intergroup relations, the schemas we use, mediated through perception, inference, and judgment, can result in racial prejudice "whether we intend it or not, whether we know it or not.(21) For example, many people, regardless of how liberal they might be, become nervous when they see a black man approaching them late at night with few people around.(22)

   2. Cognitive Categorizing Affects Cognitive Judgments

      Many studies have shown that random and arbitrary classification of people into ingroups and outgroups can lead to discrimination and prejudice. In a study by Anne Locksley, subjects classified themselves into groups by pulling tickets out of a can.(23) They were either classified as a Phi or a Gamma. Locksley found that despite the obviously arbitrary and random nature of the group selection process, subjects gave significantly more...