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August 28, 2016 Practice Points

Diversity Matters: Confronting Implicit Bias with Jury Diversity

Suggested methods to increase participation of diverse citizens

by Nacente S. Seabury

One of the greatest challenges facing jury diversity is the way in which potential jurors are summoned. In most jurisdictions, potential jurors are selected from voter registration rolls, driver’s license lists, and state identification lists. Though marginalized groups are active in the civic process, choosing potential jurors based solely on these three factors hinders access because of systemic obstacles that block people of color from becoming registered to vote or obtaining identification. Communities of color are less likely to have the requisite identification to be included in jury pools. Felony convictions, which act as a significant barrier to voter registration, disproportionately impact Black and Latinx communities. Other groups, such as women and the poor, are systemically discouraged from participating in the judicial process. Impoverished citizens usually decline jury duty because of financial concerns. Caretaking and other familial responsibilities prohibit many women from responding to service. Thus, working class women are often doubly barred from participation, because they must balance both caretaking and employment, leaving little time for civic participation.  

When the voices of those who have been historically marginalized and silenced are missing from juries, implicit biases are reinforced to the detriment of those outside of hegemonic expectations. Implicit biases are prejudices that a person may have based on race, gender, culture, religion, class, or other factors. These biases are shaped by one’s socially constructed perceptions of social normalcy. Even physical cues, such as body language and accents, act as heuristics to delineate who is “like us.” Attitudes like cultural norms may mean the difference between a conviction and acquittal, or a positive or negative civil judgment.  

Having implicit biases does not necessarily make someone a bad person or a poor juror. While everyone has implicit biases to some extent, hegemonic perceptions are typically reified in courts and on juries. In the United States, the dominant cultural perceptions are shaped from a largely white, affluent, straight, cisgender male perspective. This narrow lens compounds upon other institutional hierarchies that marginalize communities of color, women, the LGBTQ community, and the poor. When juries are constructed from only that perspective, other voices continue to be suppressed, and the waters of justice are muddied with uncertainty regarding the legitimacy of the process.  

Heterogeneous juries are important because they help ensure that the voice of the fact-finder encompasses different societal perspectives. Jury diversity is not solely about amplifying non-dominant perspectives. The very fabric of our court system is the belief in a jury of one’s peers. Jury diversity demands that we acknowledge that our peers hold different perceptions based on their own life experiences and places in society. Someone from a white, affluent neighborhood may not have the life experiences to completely understand the thought process and rationale of the actions of a person from a poor, non-white, and/or multilingual community. Diverse juries help to remediate that discrepancy and get closer to true, less biased justice. 

There are several critical avenues available to increase participation for diverse citizens. First, using other measures to find potential jurors in marginalized communities would help increase participation. Instead of relying solely on traditional lists, communities should utilize supplemental lists and community-based services that have contact information for more individuals. Local tax rolls, community centers, churches, and even food pantries maintain lists of individuals who may fall outside of the traditional rolls. With time, this partnership would allow communities of color and the poor—two groups disproportionately subject to the criminal justice system—to see the courts as partners in seeking to justice, rather than as adversaries. 

Second, raising compensation for jurors would increase participation while ensuring income will be available for the livelihood of poor jurors. Low compensation is a barrier for those forced to choose between service and relative financial security. Higher pay will allow people to take the time to serve, making the pool increasingly socioeconomically diverse.  

Third, states must efficiently address post-felony voting rights restoration. In many states, felony convictions are not absolute bars to voting rights. The restoration process, however, is cumbersome. Many citizens are not even aware voter restoration is an option. States must be held accountable and outline the path to voting restoration to each former felon.  

Increased participation will raise voices, awareness, and contributions to the judicial process. Justice should be a reflection of society as a whole, not just the voices of the privileged. Promoting jury diversity will redefine and enrich our concepts of justice with a point of view that is shaped by all societal perspectives. 

Keywords: business and commercial, diversity, implicit bias, jurors, jury, litigation, trial 

Nacente S. Seabury is an associate at Polsinelli in Kansas City, Missouri.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).