Lady Justice may be Blind, but is She Racist? Examining Brains, Biases, and Behaviors Using Neuro-Voir Dire

This paper discusses the possible use of functional magnetic-resonance imaging as potentially useful in jury selection. The author suggests that neuro-voir could provide greater impartiality of trials than the standard voir, while also preserving existing privacy protections for jurors. He predicts that ability to image and understand a wide range of brain activities, most notably bias-apprehension and lie detection, will render neuro-voir dire invaluable. However currently, such neuro-solutions remain preliminary.

Racially Imbalanced Peremptory Challenges by the Defense as a Reactionary Process

The use of peremptory challenges in American criminal trials has been found to be racially discriminatory despite race-based motivation being unconstitutional in jury selection. One argument made in defense of peremptory challenges is that the prosecution and the defense counteract each other, and “cancel out” each other’s impact. Using data from 208 criminal trials in Mississippi, this study examines whether the prosecution and defense counteract each other and what impact this has on juries. Findings suggest that the prosecution has a significant effect on the defense’s use of peremptory challenges. Although the average proportion of Black jurors is not significantly different as a result of peremptory challenges, the greater dispersion in proportions increases the volatility in jury composition.

Criminal Trials and Reforms Intended to Reduce the Impact of Race: A Review

This review collects initiatives and legal decisions designed to mitigate discrimination in pretrial decision making, jury selection, jury unanimity, and jury deliberations. It also reviews initiatives to interrupt implicit racial biases. Among these, Washington's new rule for jury selection stands alone in treating racism as the product of both individual actors’ decisions and long-standing legal structures. Washington's rule shows the limits of recent US Supreme Court decisions addressing discrimination in cases with unusual and clearly problematic facts. The court presents these cases as rare remediable aberrations, ignoring the well-documented history of racism in jury selection. The final section juxtaposes limited reforms with the contemporary prison abolitionist movement to illuminate boundaries of incremental reforms. Reforms must reflect cognizance of the extent to which racism exists at multiple levels. Reforms that do not are less likely to make change, because they are either narrow in scope or focused on discrimination by individuals.

The Experience of a Legal Career: Attorneys’ Impact on the System and the System's Impact on Attorneys

Because attorneys are essential to a fair legal process, it is important to understand the experience of a legal career. This article first reviews research on the influence of attorneys on the legal system, focusing on the effect on the influence of trial attorneys on ( a) juries, with a particular focus on attorney skill, behavior, trial decisions (i.e., joinder/severance, jury selection, opening arguments, witness selection, questioning style, cross-examination, objections, closing arguments), and characteristics (gender, race/ethnicity, attractiveness), and ( b) clients. The article then reviews the limited research on the role and impact of attorneys outside the litigation context, followed by the influence of the legal system on attorneys, with a focus on attorney distress (prevalence, causes, and consequences). The review concludes with a discussion of the overall relationship between attorneys and the legal system.

Implicit Bias and Antidiscrimination Policy

The science behind implicit bias tests (e.g., Implicit Association Test) has become the target of increased criticism. However, policymakers seeking to combat discrimination care about reducing bias in people’s actual behaviors, not about changing a person’s score on an implicit bias test. In line with this argument, we postulate that scientific controversies about implicit bias tests are irrelevant for antidiscrimination policy, which should instead focus on implicit bias in actual discriminatory behavior that occurs outside of awareness (in addition to instances of explicit bias). Two well-documented mechanisms can lead to implicit bias in actual discriminatory behavior: biased weighting and biased interpretation of information about members of particular social groups. The policy relevance of the two mechanisms is illustrated with their impact on hiring and promotion decisions, jury selection, and policing. Implications for education and bias intervention are discussed.