Many people would view this interaction as a perfect example of what works in our criminal justice system. Here, it would seem, we have not put our heads in the sand—we’ve acknowledged that there are prejudices certain jurors bring to court, and we’ve directly addressed them. We haven’t shied away from asking awkward questions, and we’ve followed up to make our expectations clear. Just as important, we’ve gone big: Every jury in every criminal case is taken through the screening. Even if they don’t make it onto a panel, those in the jury pool leave with an understanding of what impartiality means and how to achieve it. Isn’t this meaningful, honest progress?
In fact, our approach to juror screening provides a good illustration of precisely what we are doing wrong in our quest to eliminate unfairness from the law. It represents a serious challenge we face in realizing science-based reform. While we purport to address bias, what we actually do is reinforce a false narrative of what bias is, where it comes from, and how it can be remedied. And this puts us in a worse spot than if our system took no position on bias at all.
Take the matter of introspection. There’s a wealth of research suggesting that many biases can’t be detected through soul-searching. And while it’s one thing for us all to walk around believing that it’s possible to self-reflect and identify all of our hidden proclivities, it’s quite another thing to have the legal establishment confirm that intuition. Unfortunately, that is exactly what many of our rules and procedures do.
In the Third Circuit, for instance, jurors are asked questions to determine if they “have any beliefs, feelings, life experiences, or any other reasons that might influence [them] in rendering a verdict.” Does the fact that the defendant was born in Guatemala matter to you? Would you discriminate against someone based on the color of his skin? As a juror, you think about the person you are—someone who believes deeply in equality—and you answer, “No, of course not.” You know you’re not racist. Case closed: There is no threat of bias toward the Hispanic defendant.
What’s so damaging about this is not just that a juror may end up mistakenly believing that he’s capable of objectivity, but that by weighing in, the Third Circuit stacks the cards against addressing the scourge of implicit racial bias. Now, to enact reform, we must overcome not only people’s inherent skepticism but also the fact that they have been told repeatedly that such bias does not exist: If you know you are completely egalitarian, you cannot discriminate.
The same thing happens when our legal system bolsters the myth that being impartial is simply a choice. Over and over, during the trial process, jurors are instructed to switch off their irrelevant thoughts, emotions, and beliefs. “Do not allow sympathy, prejudice, fear, or public opinion to influence you,” Third Circuit jurors are told. “You should also not be influenced by any person’s race, color, religion, national ancestry, or gender.” Likewise, whenever the judge sustains an objection, “you must disregard the question or the exhibit entirely. Do not think about or guess what the witness might have said in answer to the question; do not think about or guess what the exhibit might have shown.” And if the judge orders evidence to be stricken or removed from the record, “you must not consider [it] or be influenced [by it] in any way.”