What's the Story? an Analysis of Juror Discrimination and a Plea for Affirmative Jury Selection

Article excerpt

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

AFFIRMATIVE JURY SELECTION

I. Introduction 289 II. Social Cognition Theory 292

A. Cognitve Categorizing is Common 293

B. Cognitive Categorizing Affects Cognitive Judgments 294

C. Bias Against Minorities -- Specific Studies 295

D. Effects on Memory and Recall 296

E. Cognitive Categorizing is Unconscious 297

F. Conclusion 298 III. The Story Model 298

A. The Story Model -- A Description 299

B. Bias Effects on the Model 301

C. Additional Effects on the Model 302

D. Conflicting Juror Story Constructions 304

E. Conclusion 306 IV. Court Attempted Remedies 307

A. Voir Dire -- The Challenge for Cause 308

B. Peremptory Strikes -- Challenges Without Cause 312

C. Conclusion 316 V. Affirmative Selection 317

A. Group Deliberation Studies 317

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

I. 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. …