Black Innocence and the White Jury
Racial prejudice has come under increasingly close scrutiny during the past thirty years, yet its influence on the decisionmaking of criminal juries remains largely hidden from judicial and critical examination. In this Article, Professor Johnson takes a close look at this neglected area. She first sets forth a large body of social science research that reveals a widespread tendency among whites to convict black defendants in instances in which white defendants would be acquitted. Next, she argues that none of the existing techniques for eliminating the influence of racial bias on criminal trials adequately protects minority-race defendants. She contends that this will remain so even if the prosecution-oriented rules of Swain v. Alabama (peremptory challenges) and Ristaino v. Ross (voir dire) are modified or overruled in cases currently before the Supreme Court. Finally, Professor Johnson details an equal protection argument that turns on accepting the social science data as proof of purposeful discrimination, and she proposes a prophylactic remedy.