Can an all-white jury be fair to a black man?

The Sixth Amendment to the U.S. Constitution provides the right to an impartial jury in criminal prosecutions, but what constitutes impartiality? The Supreme Court has held that the jury must be drawn from a representative cross-section of the community (Taylor v. Louisiana, 1975). To determine unconstitutional exclusion of a group, the court has said the group must be: 1) distinctive 2) lacking fair and reasonable representation because of reasons 3) caused by the system of jury selection (Duren v. Missouri, 1979).

The Supreme Court is once again considering the question of impartiality with the case of Diapolis Smith (Berghuis v. Smith, 08-1402). Smith was convicted in 1993 of second-degree murder by an all-white jury. The jury pool was compiled from driver’s licenses and identification cards. Prospective jurors were exempted from service if they lacked transportation or child care, or had work-related excuses. The circuit court pool was further diminished because jurors were first selected by the city misdemeanor district courts and then those left were available for felony circuit court service. In the 60- to 100-person pool of prospective jurors, only three were African-American and none of those three made it into the final 37 considered for Smith’s trial. The county population was approximately 8 percent African-American, and the city 18 percent at the time of the trial.

One issue for the U.S. Supreme Court in Smith’s case was whether the trial court’s method for selecting jurors resulted in a fair representation of the community. Most courts apply an “absolute disparity” test, which subtracts the percentage of minorities in the jury pool from the baseline percentage of a minority group in a county’s population. In Smith’s appeal, the court employed a comparative disparity process in which the absolute disparity of a minority population is divided by the proportion of that minority in the general population. In general, the absolute test provides the portion of the overall population that has been excluded, while the comparative test provides the decrease in likelihood that members of a minority group will be called for jury service. Smith’s case highlights two important issues for psychologists. The first involves perceptions of fairness and racial compositions of juries, and the second involves the use of statistics in court opinions. Some scholars (Hiroshi Fukurai, Edgar Butler and Richard Krooth, 1991) have argued that racism prevents minorities from fully participating in the jury system. For instance, socioeconomic barriers and judicial discrimination can prevent racial minorities from serving on juries, and that is problematic because research suggests a juror’s race affects trial outcomes. In a 2007 review of the literature, Sam Sommers, PhD, of Tufts University, demonstrated that race can have an influence on a jury’s verdict, but additional research is needed to determine the mechanisms and nuances of how such an influence takes place. Psychologists are well-positioned to do such research.

The second issue relates to courts using mathematical and statistical formulas in making policies. At the beginning of Smith’s oral arguments before the U.S. Supreme Court, Justice Stephen Breyer attempted to use the binomial theorem to hypothesize about different colored balls within an urn as an example of how many African-American jurors should be expected on a jury. With his example, he concluded that about one-third to one-half of the juries would have at least one black person on them. His math lesson was met with less-than-enthusiastic acceptance. (Justice Antonin Scalia said, “We don’t have any urns here.”) The conflicting court opinions on the absolute versus comparative disparity test and Scalia’s comment reflect a general difficulty or unwillingness of some judges to appreciate mathematical or statistical arguments. Not only in the area of racial discrimination, but also with many other important issues within the courts, experimental and clinical psychologists will probably find themselves explaining and promoting a mathematical argument to a less than receptive judiciary. However, having the ability to do so correctly and effectively will prove to be an important asset to our field.

“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).