“When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.”
– Supreme Court Justice Thurgood Marshall, Peters v. Kiff, 407 U.S. 493, 503 (1972).
A study conducted by psychologist Samuel Sommers concluded that diverse juries were less likely to presume a defendant’s guilt than all-white juries. Diverse juries also evaluated the evidence more thoroughly, deliberated longer, and made fewer factual errors. It was concluded that this was a result of white jurors being more careful and systematic in making decisions when interacting with non-white jurors. Sommers, S.R. (2006). On racial diversity and group decision making: Identifying multiple effects of racial composition on jury deliberations. Journal of Personality and Social Psychology, 90 (4), 597. The benefits of having diverse juries are not limited to the accused; they are appreciated by society as a whole. Trust in the criminal justice system is preserved and verdicts are more likely to be accepted with diverse juries.
So how do we work with diverse juries? As advocates, what can we do to use diverse juries to our clients’ benefit and what are the pitfalls we should be mindful of?
- Recognize and understand the importance of implicit bias. Lots of people would never consider themselves biased against any group of people; however implicit bias is perhaps best described as “thoughts about people you didn’t know you had”.
- Understand what diversity means. Jurors do not all share in the same, religion, education, socioeconomic, and geographic backgrounds. Don’t limit the idea of bias or diversity in your mind to just one factor when selecting a jury.
- Do your research in advance. In some counties, lawyers have access to juror information cards before voir dire begins. Use this information and time to develop a better idea of the demographics of your jury and the jurors’ background. You will know what you’re working with, how to frame your presentation, and what to be mindful of.
- Speak clearly. Don’t assume that you have a panel of all native English speakers. Slow it down, and enunciate to ensure that your message is understood.
- Mean what you say and say what you mean. Figurative language can get lost in translation or not received the same by all jurors. Instead of saying “The Defendant was going to fix the Complaining Witness’s wagon” (one of my law partner’s preferred Southern phrases)—consider saying “The Defendant confronted the Complaining Witness.” Instead of “Ladies and gentleman, I’m going to tell you how the cow ate the cabbage” (another favorite)—just say “I’m going to tell you exactly what happened.”
- Use visual aids during voir dire or witness examination. If there is a language or cultural barrier, pictures, videos, drawings, and diagrams can help aid the listener.
- Take a moment to stop and confirm that your panel members are following the discussion. Don’t assume that everything you’re saying is being understood. Ask along the way if any of the panel members have questions about what you’re discussing. Offer clarification or rephrase the point you’re trying to make.
- Keep it tight. The shorter you keep your presentation, and the less you talk and start to ramble, the less likely you are to stray from your game plan.
- Avoid humor. What might be amusing in one culture could be offensive or just unfunny in another.
- Be mindful of nonverbal communication. For example, the thumbs up might signal confirmation or great job while in some countries in West Africa and the Middle East, it means “up yours!”
- Do not assume everyone has your same beliefs and values. When I was in law school, I would come down to the courthouse and watch jury trials. There was a talented defense attorney that quoted a lot of scripture in his closing arguments. It seemed to play well with the jury, but he also ran the risk of alienating those with different beliefs or those that were unfamiliar with the Bible.
- Use local examples. One thing that everyone on a jury has is common is that they live in the same county. Use headlines from your local community that everyone has experienced or is familiar with.
- Make your client universally identifiable and relatable. If you did it right, you picked a diverse jury so chances are your client is being judged by people that don’t look or sound exactly like your client.
- Educate yourself and keep learning. Read books, travel, talk to different people in order to continue to learn about other people and cultures. Talk to jurors after trials and ask them questions about what they liked and didn’t like about your presentation style.