“[A] second-best strategy to striking potential jurors with high implicit bias is to increase the demographic diversity of juries to get a broader distribution of biases, some of which might cancel each other out. This is akin to a diversification strategy for an investment portfolio. Moreover, in a more diverse jury, people’s willingness to express explicit biases might be muted, and the very existence of diversity might even affect the operation of implicit biases as well. In support of this approach, Sam Sommers has confirmed that racial diversity in the jury alters deliberations. In a mock jury experiment, he compared the deliberation content of all-White juries with that of racially diverse juries. Racially diverse juries processed information in a way that most judges and lawyers would consider desirable: They had longer deliberations, greater focus on the actual evidence, greater discussion of missing evidence, fewer inaccurate statements, fewer uncorrected statements, and greater discussion of race-related topics. In addition to these information-based benefits, Sommers found interesting predeliberation effects: Simply by knowing that they would be serving on diverse juries (as compared to all-White ones), White jurors were less likely to believe, at the conclusion of evidence but before deliberations, that the Black defendant was guilty. Given these benefits, we are skeptical about peremptory challenges, which private parties deploy to decrease racial diversity in precisely those cases in which diversity is likely to matter most. Accordingly, we agree with the recommendation by various commentators, including Judge Mark Bennett, to curtail substantially the use of peremptory challenges. In addition, we encourage consideration of restoring a 12-member jury size as ‘the most effective approach’ to maintain juror representativeness.”

Source: Hon. Mark W. Bennett, Devon Carbado, Pam Casey, Jerry Kang,  et al. “Implicit Bias In The Courtroom.” 56 UCLA L. Review 1124, 1180-1181. 2012.


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