Postconviction Review of Jury Discrimination: Measuring the Effects of Juror Race on Jury Decisions

In Part I, I review the empirical evidence concerning the effect of jury discrimination on jury decisions. Using the work of social and cognitive psychologists, I argue that the influence of jury discrimination on jury decisions is real and can be measured by judges in certain circumstances. The empirical studies suggest criteria that courts could use to identify the cases in which jury discrimination is most likely to affect the verdict. I also refute the argument that white judges can never predict the behavior of jurors of racial backgrounds different than their own and conclude that judicial estimates of the effects of jury discrimination on jury decisions are feasible.

I address in Part II pragmatic and constitutional objections to rules that require judges to measure the influence of jury discrimination on jury decisions. I argue that neither the specter of government-sponsored ”jurymandering” nor antidiscrimination principles limit the choice or application of review standards for jury discrimination. I conclude that the choice between outcome-dependent tests and outcome-independent tests should rest instead on a careful balancing of the costs of disturbing judgments in criminal cases against the costs of tolerating proven jury discrimination.

In Part III, I examine the difficulties of conditioning postconviction relief for jury discrimination upon a showing that the discrimination caused the conviction of an “actually innocent” person. Review standards that test for innocence or accuracy are intended to promote truthful judgments. When applied to jury discrimination, they require a judge to compare the factual accuracy of the decision reached by the illegally selected jury with the factual accuracy of the decision a legally chosen jury would probably make. I argue that this is a standard1ess task, one that courts should not be required to perform.