This article is written by Madhuli Kango, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.
Trial by Jury is ‘an essential principle of law; the bulwark of liberty and the shield of the poor from the oppression of the rich and powerful’. This system of Trial by Jury originates from the assemblies and courts of ancient Greece, Rome and Babylon. In the 11th Century, England adopted this methodology and sooner or later imposed it in its various erstwhile colonies. Juries began to be understood as the ‘conscience of the community’, ensuring respite from the tyranny of arbitrary punishments and representing a citizenry self-governance.
As the prominence of juries grew, academicians and scholars through literature and discussions, deliberated upon the existence and impact of juror’s biases and prejudices on the process and its resultant consequences. 12 Angry Men is one such eloquent exhibition of the presence of prejudices amongst jurors and its impact on jury deliberations. In the movie racial bias is depicted when the jurors refer to the accused and his community as ‘them’, inevitably building a sense of alienation and distinction, hinting that people from the accused’s community are inherently involved in criminal undertakings. Juror 3 held personal bias and saw the accused as a symbol of his estranged son and therefore misplaced his anger, parting with objectivity. Ironically, a sense of ‘reverse prejudice’ can be observed in Juror 8 who initially votes for non-guilty, not because of evidence, but as he was sympathetic of the accused and his troubled upbringing.
Recognizing the existence and prevalence of prejudice in the jury, the first half of this article will explore the theme of racial bias amongst jurors and then subsequently suggest ways to curb and contain this prejudice to ensure the sanctity of the trial.
Racial bias and the jury
In a democratic society, juries possess remarkable power and responsibility. They are a representation of integrity and fairness in the criminal justice system. The duty of a jury is to arrive at the verdict beyond any reasonable doubt, by looking at the presented evidence and the applicable laws Jurors must warrant that they undertake the process with utmost neutrality ensuring adherence to the fundamental rights of a fair trial. Irrespective of the idealistic theories of impartiality, discussions of juror bias have persisted since their existence. Critical opinion on objectivity is adopted due to the presence of extra-evidential factors that impact the efficacy of the process, Of these factors, race is the most prominent.
In the light of real-life cases:
In the trial of O.J. Simpson, the jury composition and the defendants’ use of the race card brought forth questions about the fairness of the acquittal. Jury consultants’ data exhibited that African-American women are most sympathetic to O.J. Simpson and rightly the jury which acquitted Simpson had nine African-American women out of the total twelve.
In Australia, racial bias of jurors came to prominence during the criminal trial of white police officer Christopher Hurley who was charged with manslaughter and assault for the custodial death of an Indigenous man, Mulrunji Doomadgee. An independent inquiry confirmed the actions of Hurley, but the all-white jury found him not guilty. Ironically, an all-white jury sentenced Lex Wotton, an Indigenous man with life imprisonment for protesting against Hurley’s acquittal.
The aforementioned American and Australian cases are pertinent to understanding the effects of juror’s race and a community’s perception towards guilt on the final verdict. Research states that jurors of one race tend to hold biases against defendants of the other, essentially indicating that white jurors will treat indigenous defendants worse than they would treat a comparable white defendant, and vice versa. Added to that, prosecutors believe that historical oppression has made indigenous population biased against the police and the criminal justice system and thus their participation as jurors is challenged more often than that of the others. Hence, while the indigenous are ominously overrepresented as defendants in criminal trials, their numbers on such juries are bleak.
To understand the perpetuation of biases in the modern era it is crucial to realize that, biases aren’t necessarily explicit but also implicit under which individuals aren’t outright racist and in fact report ‘egalitarian racial attitudes’ but make decisions based on negative racial preconceptions. This bias stems from the juror’s personal experience and differing backgrounds which brings forth numerous preconceived notions and assumptions, greatly influencing the outcome of any case. Implicit bias holds the potential to rise from the ‘simplest of the racist cues’, and hampers jurors’ evaluation. People who test high on implicit bias construe ambiguous facts to the benefit of their personal cause. This implicit bias tends to exists amongst all individuals at some level or the other and the right to an impartial jury is lost the moment this bias enters the trial.
Bias due to media
Additionally, it is vital to note that high-profile cases tend to make it difficult for the court to have an unbiased jury. Pre-trial publicity, extensive media coverage, and now social media forums can lead to the predetermined concepts for the vast majority of the public (including potential jurors). If we look at the example of the Irvin v Dowd case, the voir dire investigation showed that 90% of the 370 potential jurors and two thirds of the chosen jury had already molded a prejudiced opinion of guilt prior to the trial due to the pre-trial publicity and media coverage.
Secondly, when taking heed of the impact on the jury, we can see that questioning the jurors about their prejudices cannot be relied upon as well. For instance, in the case of Beck v Washington, the court concluded that:
“The pre-trial publicity was so intensive and extensive or the examination of the entire panel revealed such prejudice that a court could not believe the answers of the jurors and would be compelled to find bias or perform opinions as a matter of law.”
According to a study conducted in 2007, jurors who are death certified tend to be prone to more exposure to pre-trial publicity and consequently tend to rule ‘guilty’. This is because these certified jurors were seen to be watching the daily news more than other civilians. This made them more aware of the circulating content in the media and caused them to lean towards a pro-prosecution ideology. There have also been instances of ‘stealth jurors’ where they purposely seek a seat on a specific cases’ jury in order to either incarcerate someone they believe is guilty, benefit from the publicity (financially or otherwise), or simply gain some screen time from the media. Either way, the effectiveness of methods to detect prejudiced jurors are getting more and more difficult as the reach of the media progresses.
Having recognized the existence of racial bias and its detrimental effect on jurors, it is vital to address this issue in the criminal justice system. Since implicit bias is malleable, education and training are potent sources to manage the preconceptions and their subsequent impacts on trials. Recognizing that jurors are in court for a period of 3-4 days on an average, this training mustn’t begin only after entering the courtroom but should be a part of continuously taught social curriculum, where individuals must learn to recognize implicit biases and their detrimental effects.
Simultaneously justice systems can focus on developing a jury guide that can make the jurors aware about the existence and implication of implicit bias. Research shows that with knowledge of the existence of the bias, individuals work towards correcting and controlling their behaviour. Whilst in the courtroom, the judges must be the watchdog, they must recognize and object to insertion or perpetuation of biases in the process by attorneys and similarly discipline those who err.
Representativeness is the crux of an impartial jury, diversity removes the scope of discrimination and ensures democratic decision making. Confidence of citizenry in the system increases as different perspectives are brought forth in the jury discussion. The jury poll must therefore bring forth a variety of individuals possessing different characteristics in terms of age, race, gender and educational qualification to name a few.
It is no doubt that all humans have internalized preferences and biases stemming from their upbringing, cultural conditioning and media portrayal, and no matter how hard they try to suppress these preconceived notions, research suggests that implicit bias influences judgements and perceptions. The presence of these prejudices becomes a special cause for concern for jurors as it affects their neutrality thereby hampering a fair trial. Realizing that there cannot be one swift mechanism that erases centuries long stereotypes, we are left with two options, to accept the frailties and look for possible solutions or, to put our head down and ignore the reality.
Lady Justice is depicted wearing a blindfold to symbolize objectivity, but the existence of biases present that justice might not be as blind as it seems. Judicial systems must therefore, choose the first option and look for potent solutions, research must be continuously undertaken to find feasible resolutions. Apart from research, first and foremost it must be ensured that the jury is diverse, a well-represented jury offers varied perspectives and instils in the public a sense of confidence and belief. Lack of diversity compromises the integrity and credibility of the judicial system and the subsequent biased verdicts result in social unrest and riots, violating the essence of democracy.
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