How should attorneys address race with juries?

By CORREY STEPHENSON, Lawyers USA, the national sister paper of Lawyers Weekly

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Race remains an important – and an awkward – subject in the United States, which makes it that much harder for lawyers to address with jurors.

Should racial issues always be presented to jurors? How does an attorney ask potential jurors about their own perspectives and experiences relating to race and get honest answers?

Lawyers USA asked several trial consultants for their guidance on dealing with juries and race.

“Lawyers are very aware of race as an issue, but often uncomfortable about discussing it with jurors,” said Douglas Keene, Ph.D., a clinical and forensic psychologist and litigation consultant at Keene Trial Consulting in Austin, Texas. “They don’t want to be accused of playing the race card, or they aren’t sure how to address the issue.”

As a general rule, Keene said the answer to the question of addressing race is counter-intuitive: raise the issue when it is not relevant to the case itself, but where race is the main issue, don’t bring it up.

“When people are confronted with overtly racial circumstances – an employment-discrimination lawsuit where the racist behavior is explicit, for example – there isn’t a problem evoking racial awareness,” Keene said. “The real problem is the run of the mill personal injury case, where the issue of race shouldn’t be a factor – but it is.”

Mock jurors who wouldn’t describe themselves as racist will award less money for an African-American plaintiff, for example, and explain that he wouldn’t have gotten a job anyway, Keene said, or when answering a question, they will use the phrase “those people.”

The most important thing is to try to initiate a conversation, he said. By asking carefully-phrased questions, lawyers can get an understanding of a juror’s outlook on racial issues.

Starting the conversation

Trial attorneys must be delicate about how they start the discussion of race, agreed Richard Gabriel, a trial consultant and president of Decision Analysis in Los Angeles.

“If you ask a jury panel, ‘Do you have a bias against someone of another race?’ you aren’t going to get any hands,” he said.

The best way to get an honest answer may be to allow a juror to “create a distance” from his or her answer, said Keene, past president of the American Society of Trial Consultants.

Instead of asking a panel of potential jurors directly if they have an issue with plaintiffs who were born in Mexico but immigrated to the U.S., Keene suggests asking: “Does anybody know someone for whom the mere fact that this family – although legal citizens – started their life in Mexico would be a problem?”

By having the door open to talk about someone else, potential jurors will be more likely to begin a dialogue about racial issues, he said.

And their answers could provide a wealth of information.

“People who hang out with racist people tend to be more comfortable with racist attitudes,” Keene said. On the other hand, someone who answers, “I don’t think any of my friends would say ‘yes’ to that scenario,” also tells an attorney about who that person chooses to spend his or her time with.

Another option is to give jurors an “out” when asking questions, Keene said.

If the plaintiffs are an entrepreneurial African-American couple, don’t simply ask jurors if they would expect the couple to have financial success in the future for which they should be compensated.

Instead, ask something like, “Would you be willing to give these plaintiffs full consideration for financial success where they had done well in the past but evidence of their future income is uncertain?”

That way, jurors can respond that it was the plaintiffs’ uncertain income that would impact their thinking, not their race, Keene said.

Background and community

To help get a sense of a potential juror’s outlook on race, it is essential to find out about his or her background, Gabriel said.

“Race is a huge label that we use to talk about a lot of very individualized issues that may affect a case,” Gabriel said. “Within that label, lawyers have to ask how people were brought up, what have they been taught and what are their personal experiences.”

In addition, race is often tied together with other issues, like religion or socio-economic status, Gabriel noted, or even personal experience.

He used the O.J. Simpson trial as an example.

While people often reference the race of the Simpson jurors to explain why O.J. was found not guilty, Gabriel – who worked for the defense in that case – said most people aren’t aware that at least eight members of the jury had a family member who had a negative experience with members of the police force.

“While the label of race is often used to justify the trial’s outcome, the real attitude I found much more relevant was that the jury was receptive to the defense’s argument that it was possible the police could have [played a role in the crime],” Gabriel said.

To understand how jurors will respond to racial issues, lawyers need to ask them about their personal history and community, he emphasized.

“Find out where people grew up and how they were raised, which can help get at the issue of race indirectly,” he said. “People are much more willing to talk about their parents’ views of race, or what community they were raised in and how diverse it was.”

Dr. Andrew Sheldon, a lawyer and psychotherapist who founded Sheldon Sinrich, a jury consulting firm in Atlanta agreed.

“Ask questions like, ‘What church do you belong to? Is the congregation mixed? Have you gone to a church with a mixed congregation?'” he suggested.

Race can also play into group dynamics in a jury room, Sheldon said. Cultural differences might lead some jurors to be more deferential, for example.

Another way to get around asking jurors point-black about race is to ask about political issues that involve race, such as affirmative action or immigration, Gabriel said.

In addition, lawyers should pay attention to the way in which possible jurors answer questions.

“Some jurors talk about race in terms of knowledge, while others will talk about racial issues as a direct experience,” Gabriel said, noting that a juror’s perspective will clearly impact how he or she deals with issues of race during trial.