Moving the Needle: Two Promising Tools to Attack Arkansasâ•Žs Racial Disparity in Criminal Sentencing

University of Arkansas at Little Rock Law Review University of Arkansas at Little Rock Law Review

Volume 43 Issue 1 Article 1

2020

Moving the Needle: Two Promising Tools to Attack Arkansas’s Moving the Needle: Two Promising Tools to Attack Arkansas’s

Racial Disparity in Criminal Sentencing Racial Disparity in Criminal Sentencing

Anastasia M. Boles

University of Arkansas at Little Rock William H. Bowen School of Law

, amboles@ualr.edu

Follow this and additional works at: https://lawrepository.ualr.edu/lawreview

Part of the Civil Rights and Discrimination Commons, and the Criminal Law Commons

Recommended Citation Recommended Citation

Anastasia M. Boles,

Moving the Needle: Two Promising Tools to Attack Arkansas’s Racial Disparity in

Criminal Sentencing

, 43 U. ARK. LITTLE ROCK L. REV. 1 (2020).

Available at: https://lawrepository.ualr.edu/lawreview/vol43/iss1/1

This Article is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has

been accepted for inclusion in University of Arkansas at Little Rock Law Review by an authorized editor of Bowen

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MOVING THE NEEDLE: TWO PROMISING TOOLS TO ATTACK

ARKANSAS’S RACIAL DISPARITY IN CRIMINAL SENTENCING

Anastasia M. Boles

TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................1

II. RACE AND INCARCERATION IN ARKANSAS ....................................6

A. Sentencing Disparities in Arkansas ........................................9

B. The Science of Racial Bias and the Criminal Justice System

..............................................................................................12

III. RACISM, THE CONSTITUTION, AND THE JURY PROCESS ...............15

IV. BEFORE THE VERDICT: ARKANSAS’S NEW JURY INSTRUCTION ..17

A. AMI Crim. 2d 101 ................................................................18

B. Other Jurisdictional Approaches ...........................................19

C. The Efficacy of Jury Instructions Concerning Racial Bias ...23

D. Suggested Uses for AMI Crim. 2d 101 .................................24

V. AFTER THE VERDICT: EVIDENCE OF JUROR BIAS DURING

DELIBERATIONS ........................................................................34

A. The Peña-Rodriguez Decision ..............................................39

B. Recommendations for Leveraging Peña-Rodriguez .............43

VI. CONCLUSION ................................................................................50

APPENDIX A ..................................................................................50

APPENDIX B ..................................................................................52

I. INTRODUCTION

Over the past few decades, social scientists have examined the ways

that racial bias, in explicit and implicit forms, operates at all levels of the

* Associate Professor, University of Arkansas, Little Rock, William H. Bowen School

of Law; J.D. Columbia Law School, B.A. Stanford University. Thanks to my parents – Len

and Annie; without their help I could not have continued my research during the COVID-19

pandemic of 2020. I am grateful to Professor Emerita Adjoa Aiyetoro and Julie Vandiver for

their insightful comments. I also want to thank my research assistants: Alec Comerford, Sa-

rah Dika, Zoë Harris, and Katelyn Joyner. This project was completed with the assistance of a

grant from the University of Arkansas at Little Rock William H. Bowen School of Law.

2 UA LITTLE ROCK LAW REVIEW [Vol. 43

criminal justice system.

Racial bias can affect outcomes at every point hu-

man judgment is involved.

Studies have shown that bias may impact a

range of actors in a criminal case, including law enforcement, prosecutors,

defense attorneys, judges, and jurors.

A body of legal scholarship analyzes

the intersection of racial bias and criminal punishment and recommends

specific actions to reduce racial disparities.

The Sixth Amendment grants criminal defendants the right to an impar-

tial jury, yet the problem of racial bias by jurors still permeates the criminal

justice system. Juror racial bias persists despite judicial and congressional

efforts to guarantee access for black jurors to the jury pool,

ensure race-

neutral peremptory strikes,

allow counsel to question jurors about racial

bias during voir dire,

and invalidate other jury-related laws rooted in rac-

ism.

Despite these efforts, some jurors bring racial bias into the deliberation

room:

1. See Jerry Kang, Implicit Bias: A Primer for Courts, at 4–6 (August 2009),

http://jerrykang.net/research/2009-implicit-bias-primer-for-courts/; Mark W. Bennett, Mani-

festations of Implicit Bias in the Courts, in ENHANCING JUSTICE: REDUCING BIAS 8 (Sarah E.

Redfield ed., 2017); Robert J. Smith, Justin D. Levinson & Zoë Robinson, Implicit White

Favoritism in the Criminal Justice System, 66 ALA. L. REV. 871, 872–74 (2015); BIAS IN THE

LAW: A DEFINITIVE LOOK AT RACIAL PREJUDICE IN THE U.S. CRIMINAL JUSTICE SYSTEM (Jo-

seph Avery & Joel Cooper eds., 2020).

2. See Kang, supra note 1, at 3–5.

3. Id; Bennett, supra note 1, at 8; Smith et al., supra note 1, at 872–74; BIAS IN THE

LAW, supra note 1.

4. E.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE

OF COLORBLINDNESS (2010); Ian F. Haney López, Post-Racial Racism: Racial Stratification

and Mass Incarceration in the Age of Obama, 98 CAL. L. REV. 1023 (2010); L. Song Rich-

ardson & Phillip Atiba Goff, Implicit Racial Bias in Public Defender Triage, 122 YALE L.J.

2626, 2628 (2013); Jeffrey J. Rachlinski et. al., Does Unconscious Racial Bias Affect Trial

Judges?, 84 NOTRE DAME L. REV. 1195 (2009); andré douglas pond cummings, Reforming

Policing, 10 DREXEL L. REV. 573 (2018); Jelani Jefferson Exum, Sentencing Disparities and

the Dangerous Perpetuation of Racial Bias, 26 WASH. & LEE J. CIV. RTS. & SOC. JUST. 491

(2020).

5. U.S. Const. amend. XIV, § 1; Strauder v. West Virginia, 100 U.S. 303, 303–09

(1880); Neal v. Delaware, 103 U.S. 370 (1881); Hollins v. Oklahoma, 295 U.S. 394 (1935)

(per curiam); Avery v. Georgia, 345 U.S. 559, 560–62 (1953); Hernandez v. Texas, 347 U.S.

475, 476–77 (1954); Castaneda v. Partida, 430 U.S. 482, 483–85 (1977).

6. See Batson v. Kentucky, 476 U.S. 79, 82–83 (1986); Edmonson v. Leesville Con-

crete Co., 500 U.S. 614 (1991); Georgia v. McCollum, 505 U.S. 42 (1992).

7. Ham v. South Carolina, 409 U.S. 524, 526–27 (1973); Rosales-Lopez v. United

States, 451 U.S. 182; Turner v. Murray, 476 U.S. 28 (1986).

8. See Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (requiring unanimity in criminal

verdicts).

2020] MOVING THE NEEDLE 3

 During a sexual assault trial of a Hispanic defendant, one juror was

convinced the defendant was guilty because “[n]ine times out of ten

Mexicans were guilty of being aggressive towards women.”

 A juror deliberating a death sentence for a Black defendant ex-

pressed, “[a]fter studying the Bible, I have wondered if [B]lack peo-

ple even have souls.”

 Another jury deliberated an assault charge involving a

Native American defendant.

One juror expressed,

“[w]hen Indians get alcohol, they all get drunk,” and

the jury needed to convict the defendant and “send a

message back to the reservation.”

 During deliberations for a rape charge, one juror commented, “Let’s

convict this nigger already, I am ready to play golf.” Another report-

edly responded, “The nigger should have taken a plea deal any-

way.”

In Peña-Rodriguez v. Colorado, a recent Sixth Amendment decision

examining racial bias during jury deliberations, Justice Kennedy observed

that the problem of racial bias and the jury process was “a familiar and re-

curring evil that, if left unaddressed, would risk systemic injury to the ad-

ministration of justice.”

The “familiar and recurring evil” of racism in the jury room helps ex-

plain the racial disparities that exist in criminal sentencing. The United

States Census Bureau estimates that as of July 1, 2019, Black Arkansans

comprised 15.7% of the state’s population.

Yet, as of June 2019, Black

inmates were 42% of the state’s incarcerated population.

The racial dispar-

ity is even starker for serious offenses—53% of those serving a life sentence

(with or without parole) and 52% of those on Arkansas’s death row are

Black.

Empirical studies examining the correlation of race and criminal

9. These facts are taken from Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 862 (2017).

10. These facts are from Tharpe v. Ford, 139 S. Ct. 911, 913 (2019).

11. United States v. Benally, 546 F.3d 1230 (10th Cir. 2008), abrogated by Peña-

Rodriguez v. Colorado, 137 S. Ct. 855 (2017).

12. Id. at 1231–32.

13. State of Louisiana v. Hills, 2019 WL 3024107 at *1 (La. App. 2019); Joe Gyan Jr.,

Convicted Rapist Granted New Trial; Baton Rouge Judge Cites Racial Animus Among Some

Jurors, THE ADVOCATE, Feb. 1, 2019, https://www.theadvocate.com/baton_rouge/news

/courts/article_e124bf3c-e380-11e8-ad29-af274dd7986e.html.

14. Peña-Rodriguez, 137 S. Ct. at 868.

15. UNITED STATES CENSUS BUREAU, QUICK FACTS: ARKANSAS, https://www.census.gov

/quickfacts/AR.

16. ARKANSAS DEPARTMENT OF CORRECTIONS, ANNUAL REPORT: FY 2019 at 22.

17. Id. at 25.

4 UA LITTLE ROCK LAW REVIEW [Vol. 43

punishment in Arkansas have found a statistically significant relationship

between race and the sentence an Arkansas defendant will receive in homi-

cide cases.

In other words, the best predictor of the criminal sentence an

Arkansas defendant will receive for homicide is not how severe the crime is,

whether the defendant has access to legal services, the amount of education

a defendant has, or whether a defendant has a mental health issue. The best

predictor of the severity of sentence for homicide in Arkansas is whether or

not the defendant is Black.

Jury trials are a small but important part of Arkansas criminal sentenc-

ing. Arkansas juries decided just 3% of the criminal cases in the state in

2018.

Arkansas’s capital murder statute requires a jury to find, beyond a

reasonable doubt, the existence of “aggravating circumstances” before im-

posing the death penalty.

Defendants facing a capital murder charge cannot

seek a plea bargain for a lesser charge, waive a jury trial, or waive jury sen-

tencing unless the prosecutor agrees not to seek the death penalty.

A jury’s

imposition of a death sentence is not automatic—trial judges can delay sen-

tencing to consider additional information before entering judgment of the

death penalty,

and the Supreme Court conducts a review of each capital

case.

Thus, jurors in Arkansas have an enormous role in deciding the cases

with the most severe racial disparities in sentencing—homicide cases. In-

deed, Arkansas jurors, along with any racial bias they harbor, are gatekeep-

ers to the death penalty.

Moving the needle

closer to racial equity in criminal sentencing will

require, among other things, mitigating racial bias throughout the jury pro-

18. See David C. Baldus et al., Evidence of Racial Discrimination in the Use of the

Death Penalty: A Story from Southwest Arkansas (1990-2005) with Special Reference to the

Case of Death Row Inmate Frank Williams, Jr., 76 TENN. L. REV. 555, 560 (2009); Adjoa A.

Aiyetoro & Tara V. DeJohn, Rejecting the Wrongs of Yesterday: A Multifacted Approach to

Eliminating Racial Disparities in the Arkansas Criminal Justice System, 6 TENN. JOURNAL OF

RACE, GENDER, & SOCIAL JUSTICE 105, 107–09 (2017).

19. Aiyetoro & DeJohn, supra note 18, at 107–09.

20. COURT STATISTICS PROJECT, 2018 GENERAL JURISDICTION CRIMINAL JURY TRIALS

AND RATES: ARKANSAS, http://www.courtstatistics.org/court-statistics/interactive-caseload-

data-displays (last visited Aug. 27, 2020). The Court Statistics Project maintains an interac-

tive database available at the appended link.

21. Ark. Code Ann. § 5-4-603. Capital murder trials in Arkansas are bifurcated; the jury

first decides whether a defendant is guilty of capital murder, then hears evidence relevant to

sentencing and decides whether to impose the death penalty. Ark. Code Ann. § 5-4-602.

22. Ark. Code Ann. § 5-4-608; Ark. R. Crim. P. 31.4.

23. Ark. Code Ann. §§ 16-90-105(b) and 16-90-107(e).

24. State v. Robbins, 339 Ark. 379, 386, 5 S.W.3d 51, 55 (1999) (automatic review of

death penalty sentence by Arkansas Supreme Court).

25. The common phrase “moving the needle” has particular significance to the Author.

In a conversation with Professor Emerita Adjoa Aiyetoro about sustaining activism when

faced with the reality of slow pace of social change, she advised, “Focus on the work. Focus

on moving the needle.”

2020] MOVING THE NEEDLE 5

cess. There is reason to be hopeful. Arkansas now has the benefit of two

important tools to dismantle the operation of racial bias in the jury room.

The first tool is Arkansas’s new criminal jury instruction, amended AMI

Crim. 2d 101(d), which empowers courts and attorneys to speak with poten-

tial jurors about bias in innovative ways.

The second tool is the United

States Supreme Court’s decision in Peña-Rodriguez v. Colorado, which held

that the Sixth Amendment requires that verdicts be overturned when there is

evidence that a juror acted from overt racial bias.

Peña-Rodriguez has not

yet been analyzed by federal or state courts in Arkansas. This Article exam-

ines both tools and asserts that used together, AMI Crim. 2d 101(d) may

help mitigate juror racial bias before a criminal verdict, and Peña-Rodriguez

may operate to impeach jury verdicts tainted by racial bias after a verdict.

Momentum is building around the country to improve racial equity in

the criminal justice system. During the editing of this article, the United

States has been forced to turn new focus to the problem of racism in the

criminal justice system, spurred by the deaths of Ahmaud Arbery, Breonna

Taylor, George Floyd, and many others.

In response to the outrage, courts

around the country have voiced a commitment to challenging the operation

of racial bias in the legal system.

For example, Justice Bernette Joshua

Johnson, Chief Justice of the Louisiana Supreme Court, has powerfully

called for changes in the criminal justice system:

As Chief Justice and chief administrator of our state’s courts, I readily

admit our justice system falls far short of the equality it espouses. And I

see many of its worst injustices meted out in the criminal legal system . .

. We need only look at the glaring disparities between the rate of arrests,

severity of prosecutions and lengths of sentences for drug offenses in

poor and African American communities in comparison to those in

wealthier White communities, to see how we are part of the problem.

26. Appendix A contains a comparison view of the changes to AMI Crim. 2d 101. Ar-

kansas has separate model instructions for criminal and civil cases. The amendment to the

civil instruction, AMI Civ. 103, is identical.

27. Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017).

28. See Grace Hauck, Echoes of Emmett Till Case; George Floyd’s Killing by Police

Could Be ‘Tipping Point’ in Fight for Justice, like Boy’s Murder in 1955, USA TODAY, June

8, 2020, at 1A; Buchanon et al., Black Lives Matter May Be the Largest Movement in U.S.

History, N.Y. TIMES, July 3, 2020, https://www.nytimes.com/interactive/2020/07/03/us/

george-floyd-protests-crowd-size.html.

29. A collection of recent court statements addressing the need to address racism in the

legal system can be found at NATIONAL CENTER FOR STATE COURTS, STATE COURT

STATEMENTS ON RACIAL JUSTICE, https://www.ncsc.org/newsroom/state-court-statements-on-

racial-justice (last visited Aug. 27, 2020).

30. Letter from Bernette Joshua Johnson, Chief Justice of the Louisiana Supreme Court,

to her colleagues (June 8, 2020), https://www.lasc.org/press_room/press_releases/2020/2020-

6 UA LITTLE ROCK LAW REVIEW [Vol. 43

Arkansas’s new jury instructions, along with the expanded Sixth

Amendment protection in Peña-Rodriguez, provide powerful tools for eradi-

cating racial bias from Arkansas criminal sentencing. Part II of this article

examines the state of incarceration in Arkansas and the racial disparities in

Arkansas’s criminal sentencing. Part III analyzes the intersection of racial

bias and the jury process. Part IV examines AMI Crim. 2d 101(d), Arkan-

sas’s new criminal jury instruction, and situates the instruction in the nation-

al trend of approaches. This section will recommend uses for the instruction

pre-verdict to work toward racial equity in criminal trials. Finally, Part V

discusses the implications of the Peña-Rodriguez case for Arkansas courts.

This section briefly discusses the history of the no-impeachment rule, codi-

fied in Fed. R. Evid. 606(b) and Ark. R. Evid. 606(b), and how lower courts

are applying Peña-Rodriguez. The section ends with recommendations on

interpreting Peña-Rodriguez to further the goal of racial equity in criminal

sentencing.

II. RACE AND INCARCERATION IN ARKANSAS

Black defendants are overrepresented in Arkansas prisons as well as

throughout the United States.

The United States Census Bureau estimates

that as of July 1, 2019, Black Arkansans comprise 15.7% of the state’s pop-

ulation.

Yet, Black inmates were 42% of the state’s prison incarcerated

18_Justice_for_All_in_Louisiana.pdf. In response to the killings by law enforcement and

private citizens, the Washington Supreme Court also issued a powerful statement:

. . . recent events have brought to the forefront of our collective consciousness a painful fact

that is, for too many of our citizens, common knowledge: the injustices faced by black Amer-

icans are not relics of the past. We continue to see racialized policing and the overrepresenta-

tion of black Americans in every stage of our criminal and juvenile justice systems.

The legal community must recognize that we all bear responsibility for this on-going injus-

tice, and that we are capable of taking steps to address it, if only we have the courage and the

will. The injustice still plaguing our country has its roots in the individual and collective

actions of many, and it cannot be addressed without the individual and collective actions of

us all.

Joint Letter from the Justices of the Supreme Court for the State of Washington to Members

of the Judiciary and the Legal Community (June 4, 2020),

http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Judiciary%20

Legal%20Community%20SIGNED%20060420.pdf.

31. UNITED STATES CENSUS BUREAU, supra note 15; THE SENTENCING PROJECT, THE

COLOR OF JUSTICE: RACIAL AND ETHNIC DISPARITY IN STATE PRISONS, June 14, 2016,

https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnicdisparity-in-

state-prisons/.

32. UNITED STATES CENSUS BUREAU, supra note 15. The U.S. Census Bureau reports the

following demographic estimates for Arkansas: White non-Hispanic (72.2%), Black or Afri-

can-American (15.7%), American Indian or Alaska Native (1%), Asian (1.7%), Native Ha-

waiian or Other Pacific Islander (.4%), two or more races (2.2%), Hispanic or Latino (7.7%).

Id.

2020] MOVING THE NEEDLE 7

population as of June 30, 2018.

Compared to White inmates, Black in-

mates in Arkansas generally receive longer sentences and serve more time

before release.

In addition, Black men continue to be overrepresented both on death

row and among inmates executed. As of August 2018, there were 15 White

males, 14 Black males, and one Hispanic male on death row.

Of those exe-

cuted on Arkansas’ death row, Black men comprise 32% of inmates execut-

ed since 1990 (10 of 31 inmates), and 60% of inmates executed since 2000

(6 of 10 inmates).

The startling racial disparities in Arkansas should not be

viewed in isolation. The current numbers must be contextualized with Ar-

kansas’s history of lynching, the over-criminalization of black men, convict

leasing, and mass incarceration.

As Riley Kovalcheck recently observed,

“Arkansas has never known a time when African Americans are not dispro-

portionately jailed.”

Arkansas is experiencing a startling increase in incarceration generally.

Despite an eight percent downward trend in national incarceration rates, the

rate of imprisonment in Arkansas actually increased by 35 percent between

2000 and 2017.

While there have been efforts to decrease the state’s prison

population, the number of people incarcerated in Arkansas is projected to

33. ARKANSAS DEPARTMENT OF CORRECTIONS, supra note 16, at 22. White inmates are

54% of the Arkansas inmate population, and Hispanic inmates are 3% of the population. Id.

34. Id. at 21. For Arkansas inmates released in FY 2019, the ADC reports that the aver-

age sentence was 9 years, 6 months, and 25 days for Black inmates, versus 7 years, 3 months,

and 24 days for White inmates. Upon release, Black inmates had served an average of 5

years, 10 months, and 22 days, while White inmates served 4 years, 1 months, and 1 day. Id.

See generally Aiyetoro & DeJohn, supra note 18.

35. ARKANSAS DEPARTMENT OF CORRECTIONS, Inmates, Death Row, https://adc.arkansas

.gov/death-row (last updated August 23, 2018).

36. ARKANSAS DEPARTMENT OF CORRECTIONS, Inmates, Executions, 1913 – present,

https://adc.arkansas.gov/executions. Under Furman v. Georgia, 408 U.S. 238, 238 (1972)

(holding that the death penalty constitutes cruel and unusual punishment in violation of the

Eighth and Fourteenth Amendments). Arkansas did not execute any inmates from 1964–

1990. Between 1913 and 1964, 77 of the 100 death row inmates executed were Black.

ARKANSAS DEPARTMENT OF CORRECTIONS, supra note 16. Of the four men executed in April

2017, three were Black. Id. The number of Black men executed is the official count from the

Arkansas Department of Corrections.

37. ALEXANDER, supra note 4. THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF

COLORBLINDNESS (2010); see generally DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER

NAME: THE RE-ENSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II

(2008); Jeff Rosenwieg, A Short Recent History of the Death Penalty in Arkansas, 52 ARK.

LAW 20, 21 (2017); Calvin R. Ledbetter Jr., The Long Struggle to End Convict Leasing in

Arkansas, 52 ARK. HIST. Q. 1 (1993); Aiyetoro & DeJohn, supra note 18, at 107–09.

38. Riley Kovalcheck, The Modern Plantation: The Continuities of Convict-Leasing and

an Analysis of Arkansas Prison Systems, 7 CLA JOURNAL 96, 97 (2019).

39. AMERICAN CIVIL LIBERTIES UNION, BLUEPRINT FOR SMART JUSTICE: ARKANSAS 4

(2019), https://50stateblueprint.aclu.org/states/arkansas.

8 UA LITTLE ROCK LAW REVIEW [Vol. 43

grow 9.1 percent by 2028.

40,41

As of June 2019, the population of the Arkan-

sas Division of Correction was 17,907,

with an estimated 61,350 more

people in local jails, federal prison, youth facilities, and other forms of crim-

inal supervision.

Multiple stakeholders in the Arkansas criminal justice community have

engaged in efforts to decrease the overall number of people incarcerated in

Arkansas. The community advocacy efforts tend to focus on changing poli-

cies to prevent incarceration and improving life for those who are incarcer-

ated.

Arkansas government agencies are increasingly motivated to reduce

the prison population due to the strain on the state’s budget. In May 2017,

the Council of State Governments Justice Center warned of the impact the

projected prison growth would have on the state budget:

Arkansas’s prisons are now at capacity . . . . [T]he prison population is

expected to increase by 19 percent between FY2016 and FY2023. If

nothing is done to address this growth, the state will be forced to spend

an additional $653 million in construction and operating costs by 2023 in

order to accommodate anticipated prison population growth.

40. Id.; JFA ASSOCIATES, ARKANSAS DEPARTMENT OF CORRECTION, ARKANSAS

SENTENCING COMMISSION, & ARKANSAS COMMUNITY CORRECTION TEN-YEAR ADULT SECURE

POPULATION PROJECT 2018–2028, 1, 46 (2018), https://adc.arkansas.gov/images/uploads

/2018_Arkansas_Prison_Projection_Ten-

Year_Adult_Secure_Population_Projection_Report.pdf.

41. This article was edited during Novel Coronavirus Disease 2019 (“COVID-19”)

pandemic. The state has been criticized for its response to the pandemic within the prison

system and has granted relatively few early or compassionate releases from prison. As of

August 20, 2020, per 10,000 prisoners, Arkansas ranked first in the United States for

COVID-19 prisoner cases and third in the nation in prisoner deaths due to COVID-19. THE

MARSHALL PROJECT, A STATE-BY-STATE LOOK AT CORONAVIRUS IN PRISONS,

https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-

prisons (last updated August 20, 2020); Molly Minta, Incarcerated, Infected, and Ignored:

Inside an Arkansas Prison Outbreak, THE NATION, June 17, 2020, https://www.thenation.com

/article/society/cummins-prison-arkansas-coronavirus/. See also Max Brantley, ACLU an-

nounces new complaint on state prisons’ failure to cope with coronavirus pandemic,

ARKANSAS TIMES, (July 13, 2020), https://arktimes.com/arkansas-blog/2020/07/13/aclu-

announces-new-complaint-on-state-prisons-failure-to-cope-with-coronavirus-pandemic.

42. ARKANSAS DEPARTMENT OF CORRECTIONS, supra note 16, at 24.

43. PRISON POLICY INITIATIVE, CORRECTIONAL CONTROL 2018: INCARCERATION AND

SUPERVISION BY STATE, https://www.prisonpolicy.org/reports/correctionalcontrol2018.html#

statedata.

44. See e.g. AMERICAN CIVIL LIBERTIES UNION, supra note 39, at 5 (advocating for alter-

natives to incarceration, sentencing reform, reducing revocations of parole and probation, and

eliminating cash bail); DECARCERATE ARKANSAS, 2019 ANNUAL REPORT, A PIN PRICK OF

LIGHT, https://www.decarceratear.org/annualreport (campaign to end solitary confinement

and curb bail, court fines, and fees).

45. COUNCIL OF STATE GOVERNMENTS JUSTICE CENTER, ARKANSAS’S JUSTICE

REINVESTMENT APPROACH: ENHANCING LOCAL MENTAL HEALTH SERVICES FOR PEOPLE IN THE

2020] MOVING THE NEEDLE 9

In an attempt to address the overcrowding, the legislature passed the

Public Safety Improvement Act (Act 570) of 2011.

Act 570 focused on

improving community supervision as an alternative to imprisonment.

The

legislature passed another reinvestment act in 2017, the Criminal Justice

Efficiency and Safety Act (Act 423) of 2017, which sought to improve men-

tal health services as an alternative to criminalizing mental health.

To be clear, Arkansas must address the state’s exploding prison popu-

lation. However, the enthusiasm for reducing the Arkansas prison popula-

tion as a whole ignores the historic racial disparities in Arkansas criminal

sentencing. While decarceration efforts will likely reduce the total number

of people of color in prison, only a race-conscious solution will address the

racial disparities. While there may be fewer Arkansans imprisoned overall,

Black Arkansans (both those in prison and their families) will continue to

experience disproportionate harm.

This section examines the Arkansas-specific empirical data connecting

the racialized sentencing disparity to racial bias, as well as the science of

racial bias. This section also discusses the work of one criminal justice ad-

vocacy organizations addressing racism in Arkansas criminal sentencing, the

Racial Disparities in the Arkansas Criminal Justice System Research Pro-

ject.

A. Sentencing Disparities in Arkansas

Two Arkansas-specific studies have found racial disparities in Arkan-

sas criminal sentencing. In connection with the clemency petition of Arkan-

sas death-row inmate Frank Williams, David Baldus and his colleagues

studied the convictions flowing from one prosecutor (the one prosecuting

Frank Williams) from 1990 through 2005.

The researchers studied 63

“death-eligible” cases

and found extensive evidence that Black defendants

were targeted by the prosecutor for the death penalty, especially in cases

with White victims.

Black defendants were 59% of the death-eligible sam-

CRIMINAL JUSTICE SYSTEM 1–2 (2017), https://csgjusticecenter.org/wp-content/uploads

/2020/01/Arkansas-JR-Approach_MAY2017.pdf.

46. COUNCIL OF STATE GOVERNMENTS JUSTICE CENTER, JUSTICE REINVESTMENT IN

ARKANSAS: AN OVERVIEW 1 (2016), csgjusticecenter.org/wp-content/uploads/2020/01/Justice

ReinvestmentinArkansasOverview.pdf.

47. Id.

48. Id.

49. Baldus et al., supra note 18. Frank Williams is no longer on death row. David Bal-

dus did similar work throughout the United States. See also J. Thomas Sullivan, The Abyss of

Racism, 13 J. APP. PRAC. & PROCESS 91, 98–101 (2012) (discussing the Williams case and the

Baldus study).

50. Id. at 564.

51. Id. at 570.

10 UA LITTLE ROCK LAW REVIEW [Vol. 43

ple, and received 100% of the death sentences.

Moreover, every case re-

sulting in a death sentence involved at least one White victim.

Baldus con-

cluded, “[t]his ‘inexorable zero’ evidence - no white-defendant cases and no

black-victim cases on death row - is striking.”

In 2015, the Racial Disparities in the Arkansas Criminal Justice System

Research Project (the “Racial Disparities Project” or “Project”)

released

the results of an extensive study finding a statistically significant racial dis-

parity in the sentencing of Arkansas criminal defendants charged with hom-

icide.

From 2012 to 2015, the Racial Disparities Project proceeded from

design to data collection with the involvement of professors from at least

four University of Arkansas at Little Rock departments.

The researchers

focused on prisoners serving sentences for homicide with sentences of life,

life without parole, or death.

Of the 1033 prisoners in the sample size, 836

agreed to release their data.

The researchers reviewed 538 records.

August 2015, the Project released a report of its findings.

The Project

found a statistically significant relationship between the race of the defend-

ant and the sentence the defendant received.

It is clear from the Project’s

research that the racial disparity in the sentences Black defendants receive is

not coincidental.

The data from the Racial Disparities Project work refutes the argument

that the racial disparity in Arkansas criminal sentencing is caused by a factor

52. Id.

53. Id.

54. Id.

55. Professor Emerita Aiyetoro, then director of the UA Little Rock Anderson Center on

Race and Ethnicity, formed the Project in 2011. She worked with UA Little Rock Professors

David Montague and Tara DeJohn to design the study. The Project was overseen by a 65-

member Steering Committee. Upon Professor Aiyetoro’s retirement in 2017, leadership of

the Project shifted to a four-member directorship. The Project is now housed at the UA Little

Rock, William H. Bowen School of Law. The Author is currently one of four co-directors for

the Racial Disparities Project. While informed by the work of the Project, the opinions and

recommendations described here are those of the Author alone.

56. The Project’s history until 2015 and findings are set out fully in its final report,

ARKANSAS CRIMINAL JUSTICE SYSTEM RESEARCH PROJECT, REPORT OF RESEARCH FINDINGS

(2015), https://drive.google.com/file/d/19lqdTdzUkOhZ0LXaucDIxKk3qE3AQLTX/view.

The Project’s findings were published by the Tennessee Journal of Race, Gender & Social

Justice. Aiyetoro & DeJohn, supra note 18.

57. Aiyetoro & DeJohn, supra note 18, at 109 – 111.

58. Id. at 113.

59. Id. at 115.

60. Id.

61. The Project presented its data at a conference in August 2015, entitled Reveal, Re-

store and Resurrect: The Truth About Racial Disparities in the Arkansas Criminal Justice

System. The keynote speaker was Wilbert Rideau, an award-winning journalist and author

who spent forty-four years in Louisiana’s Angola Prison.

62. Aiyetoro & DeJohn, supra note 18, at 116 – 131.

2020] MOVING THE NEEDLE 11

other than racial discrimination against Black Arkansans. The report was

full of detailed data and recommendations.

There were four critical find-

ings about the sentencing experience of Black defendants. First, Black de-

fendants were more likely to receive capital murder charges than white de-

fendants.

Second, Black defendants were more likely to receive more se-

vere punishment, especially the death penalty.

Third, even for the same

type of conviction, Black defendants were more likely to receive more se-

vere punishment than White defendants.

Fourth, in the four counties the

researchers studied (Crawford, Faulkner, Lee, and Pulaski), Black defend-

ants were overcharged by prosecutors for homicides and robbery.

Since the release of the data and recommendations in 2015, the Racial

Disparities Project has engaged in a variety of efforts to educate stakehold-

ers about its findings and encourage racial bias reduction efforts at every

stage in the criminal justice system.

To date, the Project has held at least

sixteen community forums throughout the state, done focused outreach to

stakeholder groups, and hosted three conferences.

The goal has been to

create opportunities to disrupt the racially disparate sentence outcomes at as

many interventions points as possible. The community forums have served

the dual functions of community empowerment along with the chance to

engage community members about how racialized criminal sentencing im-

pacts the lives of Arkansas families. All three conferences have brought

formerly-incarcerated people, law enforcement, attorneys, judges, criminal

justice and community advocacy organizations, educators, healthcare pro-

fessors, and concerned members of the public together for powerful and

productive conversations. The Project’s focused outreach efforts, with

presentations to public defenders, prosecutors, judges, and bar associations,

have been particularly helpful in advancing the Project’s mission.

The Project, with the help of Judge Wendell Griffen, presented findings

and recommendations to the Arkansas Judicial Council in June 2017. After

the presentation and continued discussions with the Project, Arkansas Su-

preme Court Justice Rhonda Wood recommended that Arkansas adopt a

63. Id.

64. Id.

65. Id.

66. Id.

67. Id. at 136.

68. UA LITTLE ROCK RACIAL DISPARITIES IN THE ARKANSAS CRIMINAL JUSTICE SYSTEM

RESEARCH PROJECT, LEADING THE CHARGE: FIGHTING IMPLICIT RACIAL BIAS INSIDE AND OUT

6 (2019) (conference agenda on file with the author). The Project has been supported by law

school staff and grant funding from the Rebsamen Foundation and the Darraugh Foundation.

In January 2018, the Clinton School of Public Service Center on Community Philanthropy

honored the Project with an inaugural Advancing Equity Award in recognition of the Pro-

ject’s work to advance racial equity in Arkansas. Id.

69. Id.

12 UA LITTLE ROCK LAW REVIEW [Vol. 43

model jury instruction focused on mitigating implicit racial bias. Justice

Wood continued to advocate for adoption of the instruction, with assistance

from the Project. In the fall of 2019, both the criminal and civil committees

approved an amendment to AMI Crim. 2d 101. The amendment adds lan-

guage to better define bias, including racial bias, and incorporates some of

the social science on how bias operates.

B. The Science of Racial Bias and the Criminal Justice System

The field of social psychology has extensively studied the persisting

presence of racial bias despite outward social movements toward racial eq-

uity. Recent research reveals that despite widespread initiatives promoting

racial equality, most Americans continue to demonstrate “pro-White” and

“pro-light skin” preferences on measurements of explicit and implicit racial

bias.

American anti-Black biases and pro-White preferences continue de-

spite “egalitarian race norms” and the “sincere belief” that “it is wrong to

discriminate on the basis of race and that Blacks should be treated the same

as Whites.”

Decades of research exploring the criminal justice system sup-

ports the conclusion that racial bias influences policing,

pre-trial deten-

tion,

prosecutorial charging decisions,

defense representation,

judicial

decision-making,

the jury process,

sentencing,

parole, and probation.

70. Tessa E.S. Charlesworth & Mahzarin R. Banaji, Patterns of Implicit and Explicit

Attitudes, I. Long-Term Change and Stability From 2007 to 2016, 30 PSYCHOL. SCI. 174, 181

(2019).

71. Cynthia Lee, Making Race Salient: Trayvon Martin and Implicit Bias in a Not-Yet

Post-Racial Society, 91 N.C. L. REV. 1555, 1570 (2013).

72. Rebecca C. Hetey, Implicit Bias, the Power of Institutions, and How to Reduce Ra-

cial Disparities in Policing, in BIAS AND THE LAW (Joseph Avery ed. 2020); Exum, supra

note 4; Levinson et al., Implicit Bias: A Social Science Overview, in ENHANCING JUSTICE:

REDUCING BIAS 49 – 50 (Sarah E. Redfield ed., 2017); Kang et al., Implicit Bias in the Court-

room, 59 UCLA L. REV. 1124, 1135 – 1139 (2012). See also Radley Balko, There’s Over-

whelming Evidence that the Criminal-Justice System Is Racist. Here’s the Proof.,

WASHINGTON POST, June 10, 2020, https://www.washingtonpost.com/graphics/2020

/opinions/systemic-racism-police-evidence-criminal-justice-system/

73. Besiki Luka Kutateladze, Racial and Ethnic Disparities in Prosecution, and What

Can Be Done to Change the Status Quo, in BIAS IN THE LAW 1793 (Joseph Avery & Joel

Cooper eds., 2020).

74. Id.; Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the

Exercise of Prosecutorial Discretion, 35 SEATTLE U. L. REV. 795, 806 (2012).

75. Andrea D. Lyon & Mortimer Smith, Racial Bias, the Defense, and the Challenge of

Misunderstanding, in BIAS IN THE LAW 2165 (Joseph Avery & Joel Cooper eds., 2020).

76. Rachlinski et al., supra note 4, at 1222 (despite widespread implicit racial bias

among judges, the vast majority of judges overstate their ability to objective); Justin D. Lev-

inson et. al., Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes, 69

FLA. L. REV. 63, 111 (2017); Naci Mocan, Biases in Judicial Decision-Making, in BIAS IN THE

LAW 2380 (Joseph Avery & Joel Cooper eds., 2020).

2020] MOVING THE NEEDLE 13

Recent research explores the complexity of racial bias in sentencing—for

example, defendants with “afro-centric features” may receive harsher sen-

tences than defendants with facial features that are less stereotypically

Black.

Courts are increasingly recognizing the role of bias in affecting crimi-

nal outcomes. Sixth Circuit Judge Bernice B. Donald, for example, offers a

poignant illustration of the overcharging of Black defendants:

As a U.S. District Court judge for 15 years, I have observed implicit bias

at every stage of the process – in arrests, adjudications, plea bargains,

and sentencing. One striking contrast occurred on a single day in my

courtroom. During the morning session of court, an African-American

male pled guilty to [each count] of an eight-count indictment charging

violations of 18 U.S.C. § 922(g), felon in possession of a firearm . . . . In

the afternoon session, a young White male pled guilty to a two-count in-

dictment; the first count charged a violation of 18 U.S.C. § 922(j) (eight

stolen weapons), while the second count charged a violation of 18 U.S.C.

§(g), felon in possession of a firearm (eight weapons). While the prose-

cutors argued that no racial disparity resulted from the disparate charging

decisions, the African-American male “stereotype of dangerousness”

was perpetuated by a conviction on eight counts of being a felon in pos-

session of a firearm, while the conviction of his White counterpart on a

single count of the same activity reinforced a less dangerous stereo-

type—even though each possessed the same number of weapons.

From the perspective of Judge Donald as the trial judge, the race of the

defendant was the main difference between two defendants facing criminal

charges for an identical crime—illegal possession of eight firearms.

77. Amanda Nicholson Bergold & Margaret Bull Kovera, The Effects of Racial Bias and

Jury Diversity on Juror Decision-making, in BIAS IN THE LAW 2790 (Joseph Avery & Joel

Cooper eds., 2020).;Levinson et. al, Devaluing Death: An Empirical Study of Implicit Racial

Bias on Jury-Eligible Citizens in Six Death Penalty States, 89 N.Y.U. L. Rev. 513, 557 – 559

(2014).

78. Kang et al., Implicit Bias in the Courtroom, supra note 71, at 1148 – 1152.

79. See BIAS IN THE LAW, supra note 1; ENHANCING JUSTICE: REDUCING BIAS (Sarah E.

Redfield ed., 2017). From 2013 - 2017, the Kirwan Institute for the Study of Race and Eth-

nicity at the Ohio State University collected highlights from the emerging data on bias and

the criminal justice system in an annual “State of the Science” report. The five reports can be

downloaded at http://kirwaninstitute.osu.edu/researchandstrategicinitiatives/implicit-bias-

review/.

80. Mark W. Bennett and Victoria C. Platt, Looking Criminal and the Presumption of

Dangerousness: Afrocentric Facial Features, Skin Tone, and Criminal Justice, 51 U.C.

DAVIS L. REV. 745, 795 (2018). Bennett and Platt note that the most salient features are dark

skin, a wide nose, course hair, dark eyes, and full lips. Id. at 755.

81. Bernice B. Donald & Sarah E. Redfield, Framing the Discussion, in ENHANCING

JUSTICE: REDUCING BIAS 8 (Sarah E. Redfield ed., 2017).

14 UA LITTLE ROCK LAW REVIEW [Vol. 43

The social science on racial bias suggests that jurors are making racial-

ly-biased decisions during criminal jury trials. The evolution of societal

norms about race adds to the complexity of juror racial bias. The same racial

bias operating in society infects the criminal justice system. When racial

prejudice was socially acceptable, White jurors openly relied on biased

views and stereotypes of Blacks as inferior and more criminal in their deci-

sion-making.

The vast body of research demonstrating racial bias in the

jury process is in tension with the desire of modern White jurors to “em-

brace an egalitarian value system and a desire to appear nonprejudiced.”

Modern jurors, however, may still hold bias against Black defendants, or

favoritism for White defendants.

As research evolves, scientists will continue to disagree about whether,

and to what extent, measurements of racial bias can predict real-world be-

havior.

The reality is that any racially-biased action or behavior, whether

conscious or unconscious, can significantly deteriorate racial equity in the

criminal justice system. In Arkansas, Whites are overrepresented among

court personnel, including trial court and appellate court judges.

Assuming

the science of racial bias is in any way credible, Arkansas courts must be

aggressive in countering and preventing racial bias or favoritism in decision-

making and behavior.

82. Samuel R. Sommers and Phoebe C. Ellsworth, White Juror Bias: An Investigation of

Prejudice Against Black Defendants in the American Courtroom, 7 PSYCHOL. PUB. POL’Y &

L. 201, 202–203, 205 (2001) (citing Dorsey v. State, 108 Ga. 477 (1899), which found de-

fendant’s race was relevant in rape trial to determine whether a white woman consented to

sex).

83. Id. at 203.

84. Id.

85. Compare Anthony G. Greenwald et al., Understanding and Using the Implicit Asso-

ciation Test: III. Meta-Analysis of Predictive Validity, 97 PERSONALITY & SOC. PSYCHOL. 17

(2009) (concluding the IAT can predict biased behavior) with Frederick L. Oswald et al.,

Predicting Ethnic and Racial Discrimination: A Meta-Analysis of IAT Criterion Studies, 105

PERSONALITY & SOC. PSYCHOL. 171 (2013) (the IAT does not predict biased behavior). After

their conflicting meta-analyses, the researchers have continued to debate the correlation be-

tween IAT measurements of bias and biased behavior. See Anthony G. Greenwald et al.,

Statistically Small Effects of the Implicit Association Test Can Have Societally Large Effects,

108 PERSONALITY & SOC. PSYCHOL. 553 (2015); Frederick L. Oswald et al., Using the IAT to

Predict Ethnic and Racial Discrimination: Small Effect Sizes of Unknown Social Signifi-

cance, 108 PERSONALITY & SOC. PSYCHOL. 562 (2015).

86. J.D. Gingerich, The Face of the Arkansas Courts and the Communities They Serve,

49 ARK. LAW 24, 26 (2014).

87. Id. at 5–6.

2020] MOVING THE NEEDLE 15

III. RACISM, THE CONSTITUTION, AND THE JURY PROCESS

Criminal defendants have a constitutional right to a trial free from ra-

cial prejudice and bias. The Sixth Amendment, as applied to the states

through the Fourteenth Amendment, guarantees that “[i]n all criminal prose-

cutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury . . . .”

The Fourteenth Amendment extends the Sixth

Amendment right to an impartial jury to state criminal defendants.

The

Sixth Amendment is particularly significant when situated in the body of

narrowly-interpreted constitutional jurisprudence about race and criminal

punishment.

For example, the Eighth Amendment is not violated when

there is a racial disparity in the imposition of the death penalty; for now, the

defendant must prove the prosecutor acted with intentional discrimination.

Historically, the push for an impartial jury process aimed to guarantee

that racial bias did not unduly punish criminal defendants of color while

allowing racial favoritism to benefit White defendants.

Some abolitionists

fought unsuccessfully to guarantee the right to a jury trial under the fugitive

slave laws.

Despite the protections of the Sixth Amendment, achieving

racial equity in the jury process has been elusive. Courts have attempted to

prevent the intrusion of racism in the jury process by prohibiting the exclu-

sion of jurors of color from the jury pool, prohibiting race-based peremptory

challenges, and allowing counsel to ask potential jurors about racial bias

during voir dire.

In Ramos v. Lousiana, the Supreme Court recently

acknowledged that state and federal juries must reach unanimous verdicts in

criminal trials, recognizing that non-unanimous jury verdicts at issue in Lou-

isiana and Oregon were rooted in an overtly racially discriminatory pur-

88. U.S. CONST. amend. VI.

89. U.S. CONST. amend. XIV, § 1.

90. See Batson v. Kentucky, 476 U.S. 79, 113–15 (1986).

91. McCleskey v. Kemp, 481 U.S. 279, 300–01 (1987).

92. James Foreman, Jr., Juries and Race in the Nineteenth Century, 113 YALE L.J. 895,

915–16 (2004) (studies showed disproportionate conviction of Black defendants in Georgia

between 1866–1879 as well as the acquittal of each of 500 White defendants charged with

killing a Black victim between 1865–1866).

93. Id. at 899–909 (discussing efforts of abolitionists to secure a right to a jury trial for

fugitive slaves facing re-enslavement).

94. See U.S. Const. amend. XIV, § 1; Strauder v. West Virginia, 100 U.S. 303, 303–09

(1880); Neal v. Delaware, 103 U.S. 370 (1881); Hollins v. Oklahoma, 295 U.S. 394 (1935)

(per curiam); Avery v. Georgia, 345 U.S. 559, 560–62 (1953); Hernandez v. Texas, 347 U.S.

475, 476–77 (1954); Castaneda v. Partida, 430 U.S. 482, 483–85 (1977); Batson v. Kentucky,

476 U.S. 79, 82–83 (1986); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991);

Georgia v. McCollum, 505 U.S. 42 (1992); Ham v. South Carolina, 409 U.S. 524, 526–27

(1973); Rosales-Lopez v. United States, 451 U.S. 182; Turner v. Murray, 476 U.S. 28 (1986);

Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (requiring unanimity in criminal verdicts).

16 UA LITTLE ROCK LAW REVIEW [Vol. 43

pose—to invalidate the dissenting vote of black jurors.

Unfortunately, the

promise of Supreme Court precedent to bolster the fairness of the jury pro-

cess continues to be constrained in impact by narrow judicial constructions.

While the law technically prohibits racism in the jury process, racial bias

remains a consistent concern.

In Peña-Rodriguez v. Colorado, Justice Kennedy emphasized the diffi-

culty in reaching the promise of racial equity in the jury process:

[R]acial bias [is] a familiar and recurring evil that, if left unaddressed,

would risk systemic injury to the administration of justice. This Court’s

decisions demonstrate that racial bias implicates unique historical, con-

stitutional, and institutional concerns. An effort to address the most

grave and serious statements of racial bias is not an effort to perfect the

jury but to ensure that our legal system remains capable of coming ever

closer to the promise of equal treatment under the law that is so central to

a functioning democracy.

Justice Kennedy went on to emphasize the role of courts in mitigating

racial bias during the jury process: “[t]he duty to confront racial animus in

the justice system is not the legislature’s alone. Time and again, this Court

has been called upon to enforce the Constitution’s guarantee against state-

sponsored racial discrimination in the jury system.”

Before the jury reaches a verdict, Arkansas courts have broad ability to

engage juror racial bias. The Peña-Rodriguez decision highlighted the im-

portance of pre-verdict “safeguards” that can help “prevent racial bias in

jury deliberations,”

including jury selection, jury instructions, and the

court’s ability to deter, detect, and remediate juror racial bias throughout the

trial and jury deliberations.

Strategic use of the new jury instructions con-

cerning bias in Arkansas can help interrupt the role of racial bias in civil and

criminal litigation.

During the second stage once the jury reaches a verdict, the “no-

impeachment rule” codified in the federal and Arkansas Rule of Evidence

95. Ramos, 140 S. Ct. at 1394. Before Ramos, Louisiana and Oregon were the two re-

maining states permitting non-unanimous criminal verdicts. Louisiana’s allowance of non-

unanimous verdicts was drafted to appear facially race-neutral” yet “ensure that African-

American juror service would be meaningless.” Id. at 1394 (citing State v. Maxie, No. 13–

CR–72522 (La. 11th Jud. Dist., Oct. 11, 2018)). Oregon’s rule originated with the influence

of the Ku Klux Klan and was intended to counteract “the influence of racial, ethnic, and

religious minorities on Oregon juries.” Id. (citing State v. Williams, No. 15–CR–58698 (C. C.

Ore., Dec. 15, 2016)).

96. Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017).

97. Id. at 867.

98. Id. at 871.

99. See People v. Shaw, No. 346364, 2020 WL 2296873, at *2 (Mich. Ct. App. May 7,

2020) (removal of juror who made racially-biased remarks during trial).

2020] MOVING THE NEEDLE 17

606 controls and prohibits almost all evidence of juror misconduct. Before

2017, there were limited exceptions to Rule 606’s shielding of jury delibera-

tions. Faced with the uncompromising interpretation of the no-impeachment

rule, most courts and litigants seeking to avoid the intrusion of racial bias

into the jury process have had to rely upon pre-verdict tools, such as a juror

willing to admit explicit racial bias during voir dire.

100

In 2017, the Supreme Court in Peña-Rodriguez held that Rule 606’s

no-impeachment mandate must yield to the Sixth Amendment “where a ju-

ror makes a clear statement that indicates he or she relied on racial stereo-

types or animus to convict a criminal defendant . . . .”

101

The Court was con-

vinced racial bias by jurorshould be treated differently from the traditional

Rule 606 exceptions. Racial bias, the Court explained, should be treated

“with added precaution.”

102

Peña-Rodriguez makes clear the Sixth Amend-

ment is violated when a juror acts from overt racial bias.

103

IV. BEFORE THE VERDICT: ARKANSAS’S NEW JURY INSTRUCTION

Arkansas has adopted a model jury instruction, AMI Crim. 2d 101, to

counter a juror’s propensity to act from racial bias. Although the Peña-

Rodriguez decision’s lofty goal of mitigating juror racial bias focuses on

overt bias, AMI Crim. 2d 101 can be used to mitigate all forms of racial

bias. It is rare that a juror will make an overtly racist statement during delib-

eration, and even rarer that criminal defendants will ever discover evidence

of racialized juror decision-making. Indeed, the Peña-Rodriguez Court rec-

ognized the limits of its decision and emphasized the importance of “stand-

ard and existing processes designed to prevent racial bias in jury delibera-

tions.”

104

First, the court highlighted the importance of “careful voir dire.”

105

Next, the court emphasized the significance of jury instructions concerning

racial bias:

Trial courts, often at the outset of the case and again in their final jury in-

structions, explain the jurors’ duty to review the evidence and reach a

verdict in a fair and impartial way, free from bias of any kind. Some in-

structions are framed by trial judges based on their own learning and ex-

perience. Model jury instructions likely take into account these continu-

100. See United States v. Benally, 546 F.3d 1230, 1231 (10th Cir. 2008), abrogated by

Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) (juror failed to admit to racial bias during

voir dire yet made racially biased statements during jury deliberations about Native Ameri-

cans).

101. Peña-Rodriguez, 137 S. Ct. at 869.

102. Id.

103. Id.

104. Id. at 871.

105. Id.

18 UA LITTLE ROCK LAW REVIEW [Vol. 43

ing developments and are common across jurisdictions. Instructions may

emphasize the group dynamic of deliberations by urging jurors to share

their questions and conclusions with their colleagues.

106

In other words, model jury instructions counseling jurors to mitigate

racial bias throughout the trial should be an integral part of the jury process.

A. AMI Crim. 2d 101

The revised model jury instruction, AMI Crim. 2d 101(d), provides:

Many of us have biases about, or certain perceptions, or stereotypes of

other people. We may be aware of some of our biases, but not fully

aware of others. You must not let bias, prejudice, or public opinion in-

fluence your decision. You must not be biased in favor of or against any

party, witness, or attorney because of his or her disability, gender, race,

religion, ethnicity, sexual orientation, age, national origin, or socio-

economic status.

107

AMI Crim. 2d 101(d) is a standard instruction in criminal cases.

108

Ar-

kansas criminal defendants are entitled to a jury instruction when it is a cor-

rect statement of law and there is some basis in the evidence to support giv-

ing the instruction.

109

The Arkansas Model Criminal Instructions (AMCI

2d.) provide that a trial judge must articulate any reason for refusing to give

a model instruction.

110

Arkansas’s adoption of a model criminal jury instruction concerning

racial bias is an important, albeit incremental, step towards addressing juror

racial bias in criminal sentencing. Courts have been reluctant to educate

jurors about racial bias in the absence of a model instruction.

111

Arkansas

courts can now use jury instructions to structure the trial with the goal of

racial equity, encourage jurors to bring concerns about racial bias to the

106. Id.

107. AMI Crim. 2d 101(d).

108. Id.

109. Barnes v. Everett, 351 Ark. 479, 492, 95 S.W.3d 740, 748 (2003). If an Arkansas

Model Criminal Instruction (AMCI) contains an instruction applicable in a criminal case, and

the trial judge determines that the jury should be instructed on the subject, the AMCI instruc-

tion shall be used unless the trial judge finds that it does not accurately state the law. In that

event, the trial judge will state the reasons for refusing the AMCI instruction.

110. McDaniel Bros. Constr. Co. v. Mid-State Constr. Co., 252 Ark. 1223, 1235, 482

S.W.2d 825, 831 (1972) (“it is the better practice for the court to give [AMI 101] when re-

quested or recite into the record the reasons for not giving it in the unusually exceptional

cases when a refusal to give it is justified.”)

111. United States v. Graham, 680 F. App’x 489, 492 (8th Cir. 2017) (affirming trial

court’s denial of an implicit bias instruction); State v. Nesbitt, 308 Kan. 45, 59, 417 P.3d

1058, 1068–69 (2018) (surveying cases).

2020] MOVING THE NEEDLE 19

court’s attention before the verdict, and empower jurors to challenge the

operation of racial bias in jury deliberation.

112

It also serves to educate other

jurisdictions that may not have adopted a model instruction concerning ra-

cial bias, and adds to other judicial approaches aimed at mitigating bias in

criminal trials.

B. Other Jurisdictional Approaches

Jurisdictions engage in a variety of approaches when addressing racial

bias in jury instructions.

113

An early example of the use of jury instructions

to mitigate racial bias is that of now-retired judge Mark W. Bennett.

114

addition to his years of service on the bench, Judge Bennett was a prominent

legal scholar in the area of juror bias.

115

He used several measures through-

out jury selection and trial to address implicit bias, including jury instruc-

tions. After a twenty-five-minute juror orientation about implicit bias,

116

Judge Bennett gave a specialized jury instruction on implicit bias:

Do not decide the case based on “implicit biases.” As we discussed dur-

ing jury selection, everyone, including me, has feelings, assumptions,

perceptions, fears, and stereotypes, that is, “implicit biases,” that we may

not be aware of. These hidden thoughts can impact what we see and

hear, how we remember what we see and hear, and how we make im-

portant decisions. Because you are making very important decisions in

this case, I strongly encourage you to evaluate the evidence carefully and

to resist jumping to conclusions based on personal likes or dislikes, gen-

112. Arkansas courts have been willing to grant new trials based on jury misconduct

when the issue arises before jury deliberation. State v. Cherry, 341 Ark. 924, 928, 20 S.W.3d

354, 357 (2000) (new trial order affirmed when jurors discussed and decided on evidence

before juror deliberations, and the hearing on the motion for a new trial focused on discus-

sions occurring prior to formal deliberations); Dimas-Martinez v. State, 2011 Ark. 515, 5–6,

385 S.W.3d 238, 243 (2011) (new trial ordered when one juror slept during trial and another

tweeted about the trial).

113. Example jury instructions discussing implicit bias are collected at Appendix B.

114. Judge Bennett sat on the U.S. District Court for the Northern District of Iowa from

1994 – 2019. He now serves as the director of the Institute for Justice Reform & Innovation

at Drake University Law School. Judge Bennett’s biography is available at

https://www.drake.edu/law/clinics-centers/ijri/director/.

115. See Judge Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury

Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and

Proposed Solutions, 4 HARV. L. & POL’Y REV. 149 (2010); Kang et al., Implicit Bias in the

Courtroom, supra note 71, at 1182; Mark W. Bennett, Confronting Cognitive “Anchoring

Effect” and “Blind Spot” Biases in Federal Sentencing: A Modest Solution for Reforming A

Fundamental Flaw, 104 J. CRIM. L. & CRIMINOLOGY 489, 491 (2014).

116. Kang et al., Implicit Bias in the Courtroom, supra note 71, at 1181–1182. In addition

to jury instructions, Judge Bennett spent about 25 minutes educating the jury about implicit

bias through discussion and a video. His jury orientation strategies are discussed infra at

IV.B.5.

20 UA LITTLE ROCK LAW REVIEW [Vol. 43

eralizations, gut feelings, prejudices, sympathies, stereotypes, or bias-

es.

117

Judge Bennett’s instruction accomplished multiple goals by providing

education for jurors about implicit bias, and admonishing jurors to avoid

racial bias in making decisions.

In 2015, influenced by Judge Bennett and others, the American Bar

Association (“ABA”) proposed use of an implicit bias jury instruction. The

instructions were part of a larger toolbox of resources assembled by the

ABA’s Achieving an Impartial Jury: Addressing Bias in Voir Dire and De-

liberations project (“AIJ Toolbox”).

118

The grant-funded AIJ Toolbox was

led by the ABA Criminal Justice Section, the Litigation Section, and an ad-

visory group comprised of social scientists, legal scholars, judges, prosecu-

tors, and defense attorneys.

119

The final Toolbox materials incorporated ex-

tensive feedback from pilot projects in three states, information sessions,

ABA meetings, individual judges, and bar associations.

120

The language of the AIJ jury instruction aims to educate jurors about

the nature of bias while suggesting strategies to reduce it.

121

After a brief

explanation about the operation of implicit bias,

122

the instruction offers sev-

eral techniques, supported by the empirical research on de-biasing tech-

niques,

123

for jurors to use while evaluating evidence and deliberating. In

addition to the proposed jury instructions, the AIJ Toolbox contains a wealth

of materials courts can use to mitigate juror bias, including recommended

jury orientation materials, an overview of the science of bias, a courtroom

checklist offering de-biasing techniques, and an approach for voir dire.

124

For each resource, the Toolbox contains extensive references to social sci-

ence research and other scholarship.

State and federal jurisdictions have taken a variety of approaches in

crafting jury instructions to mitigate juror bias. On one end of the spectrum

are jury instructions that speak only generally to bias and prejudice or fail to

take a methodical approach to mitigating racial bias. For example, many

117. Id. at 1182–83.

118. AMERICAN BAR ASSOCIATION, ACHIEVING AN IMPARTIAL JURY: ADDRESSING BIAS IN

VOIR DIRE AND DELIBERATIONS (2015). The AIJ’s Toolbox is available at

https://www.americanbar.org/content/dam/aba/publications/criminaljustice/voirdire_toolchest

.pdf.

119. Id. at 2.

120. Id. at n.13. The formal pilot projects were in California, North Carolina, and Wash-

ington.

121. Id. at 17–20. The full text of the AIJ instruction is at Appendix B.

122. Id. at 17–18.

123. Id. at n.72 (discussing empirical support for instruction’s language).

124. AMERICAN BAR ASSOCIATION, ACHIEVING AN IMPARTIAL JURY: ADDRESSING BIAS IN

VOIR DIRE AND DELIBERATIONS 3–4 (2015), https://www.americanbar.org/content

/dam/aba/publications/criminaljustice/voirdire_toolchest.pdf.

2020] MOVING THE NEEDLE 21

jurisdictions use general admonishments to avoid “bias” or “prejudice” and

fail to mention racial bias at all.

125

Arkansas’s prior instruction took this

path, instructing the jury, “You should not permit sympathy, prejudice, or

like or dislike of any party to this action or of any attorney to influence your

findings in this case.”

126

Some jurisdictions take the incremental step of ex-

plicitly mentioning bias on the basis of race within a general admonish-

ment.

127

In the middle of the spectrum are jurisdictions using bias mitigation in-

structions in limited, case-specific ways. For example, courts have used

race-conscious jury instructions for specific issues, such as instructing jurors

to identify potential issues in cross-racial eye-witness testimony,

128

or in

evaluating witness credibility.

129

Some courts, including federal courts, in-

clude a general admonishment against racial bias in death penalty cases.

130

Other states have racial bias jury instructions only for civil cases.

131

Finally, on the other end of the spectrum are states with robust model

criminal instructions addressing racial bias.

132

These instructions share two

125. See, e.g., MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-CR § 2:04 (ju-

rors are instructed to decide the case “without bias or prejudice” and “not be swayed by sym-

pathy, prejudice, or public opinion.”); FIFTH CIRCUIT PATTERN CRIMINAL JURY INSTRUCTIONS,

S1 MODERN FEDERAL JURY INSTRUCTIONS-CRIMINAL § 1.01 (2019) (“Do not let any bias,

sympathy, or prejudice that you may feel toward one side or the other influence your decision

in any way.”).

126. Former AMI Crim. 2d 101. Amended 101 retains the prior language and adds more

specific language in subsection (d).

127. See, e.g., NORTH DAKOTA PATTERN JURY INSTRUCTIONS – CRIMINAL, ND. J.I. CRIM. §

5.55 (“You should not be prejudiced against or biased for a person for such reasons as race,

gender, religion, political views, social views, wealth, or poverty.”).

128. See, e.g., FIRST CIRCUIT PATTERN JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF

THE FIRST CIRCUIT, S1 MODERN FEDERAL JURY INSTRUCTIONS–CRIMINAL § 2.22 (2019) (“You

may consider the following in evaluating the accuracy of an eyewitness identification: [risks

of cross-racial identification] . . . “); MARYLAND CRIMINAL JURY INSTRUCTIONS AND

COMMENTARY, THIRD EDITION, 1 MD CRIMINAL JURY INSTRUCTIONS AND COMMENTARY §

2.57(B) (2019); CRIMINAL MODEL JURY INSTRUCTIONS FOR USE IN THE DIST. COURTS – MASS.

INSTRUCTION § 9.160 (2015).

129. MICH. MODEL CRIMINAL JURY INSTRUCTIONS § 2.6.

130. 1 MODERN FEDERAL JURY INSTRUCTIONS-CRIMINAL P § 9A.04 (2019); EIGHTH

CIRCUIT MODEL CRIMINAL JURY INSTRUCTION § 12.13; 18 U.S.C. § 3593(f) (requiring court to

instruct jury considering death penalty that it may not recommend a sentence of death, “un-

less it has concluded that it would recommend a sentence of death for the crime in question

no matter what the race, color, religious beliefs, national origin, or sex of the defendant or of

any victim may be.”); see also ARIZ. JURY INSTRUCTIONS (CRIMINAL) 5TH CAPITAL CASE § 2.1

(2018); IDAHO CRIMINAL JURY INSTRUCTIONS § 1705; 1 FLA. STANDARD JURY INSTRUCTIONS

IN CRIMINAL CASES § 7.11 (2020).

131. See IOWA CIVIL JURY INSTRUCTIONS, SUGGESTIONS FOR INSTRUCTING JURIES; ILLINOIS

PATTERN JURY INSTRUCTIONS: CIVIL § 1.08 (2019).

132. See, e.g. Ninth Circuit Manual of Modern Criminal Jury Instructions, Duty of the

Jury, S3 Modern Federal Jury Instructions-Criminal 1.1 (2019) (Ninth Circuit); Preliminary

22 UA LITTLE ROCK LAW REVIEW [Vol. 43

themes—a broad illustration of the range of bias coupled with a clear di-

rective for jurors to engage in thoughtful decision-making to avoid biased

decisions. In Massachusetts, for example, trial judges give the following

definition of bias before jury selection:

Jurors, of course, are expected to bring their own life experiences,

thoughts, opinions, beliefs, and common sense to this court and the de-

liberation room. Everyone, including me, makes assumptions and forms

opinions arising from our own personal backgrounds and experiences.

These biases or assumptions may have to do with any number of things,

including an individual’s race, color, nationality, ethnicity, age, disabil-

ity, socioeconomic status, religious beliefs, gender, or sexual orientation.

Bias, whether it is conscious or subconscious, can affect how we evalu-

ate information and make decisions. It can impact what we see and hear,

how we remember what we see and hear, how we make important deci-

sions, and may even cause us to make generalizations or to pre-judge.

133

Jurors in Massachusetts are cautioned to avoid bias:

I instruct you that a verdict must not be based on any such bias, includ-

ing conscious or subconscious bias.

While each of you brings your unique life experience with you to court

today, as jurors, you must be alert to recognize whether any potential bi-

as might impact your ability to fairly and impartially evaluate the evi-

dence in this case, follow my instructions, and render a fair and just ver-

dict that is based solely on the evidence presented in this case.

134

C. The Efficacy of Jury Instructions Concerning Racial Bias

To date, only one study has examined the effectiveness of a specialized

racial bias jury instruction, and it focused on implicit bias. Dr. Jennifer K.

Elek and Paula Hannaford-Agor at the National Center for State Courts de-

signed a mock trial study examining a specialized implicit bias instruction

with three differing factors: race of the defendant, race of the victim, and use

Instruction, available at https://www.wawd.uscourts.gov/sites/wawd/files/CriminalJury

Instructions-ImplicitBias.pdf (W.D. Washington); 1 CALIFORNIA FORMS OF JURY

INSTRUCTION § 113 (2020) (California); HAW. CRIMINAL JURY INSTRUCTION §1.01; CRIMINAL

MODEL JURY INSTRUCTIONS FOR USE IN THE DIST. COURTS – MASS. INSTRUCTION §§ 1.100,

1.120; Pa. SSJI (Crim) § 2.02; Advance Oral Instruction—Beginning of Proceedings, 11

Wash. Prac., Pattern Jury Instr. Crim. WPIC 1.01 (4th Ed) (Washington).

133. CR Model Jury Instructions for use in the Dis Cts - Mass Instruction 1.100. A simi-

lar instruction is given before opening statements. CR Model Jury Instructions for use in the

Dis Cts - Mass Instruction 1.120.

134. Id.

2020] MOVING THE NEEDLE 23

of a specialized jury instruction.

135

Elek and Hannaford-Agor found that

isolated use of a specialized instruction failed to influence “judgments of

guilt, confidence, strength of the prosecution’s evidence, or sentence length”

based on race.

136

The researchers did find, however, that mock jurors who

received the specialized instruction evaluated the strength of the defendant’s

case differently than those who did not. In the control group, there was a

racial disparity when the victim was Black; the defense case was stronger

with a Black defendant versus a White defendant.

137

Elek and Hannaford-

Agor found the implicit bias instruction “tempered” the racial disparity in

mock juror evaluations when the victim was Black.

138

The researchers theo-

rized that the different judgment pattern of juror judgments with regard to

strength of the defendant’s case could suggest, with further research, that a

specialized instruction could influence juror decisions.

139

Elek and Hannaford-Agor acknowledged an important limitation—the

study did not replicate the baseline race bias found in other jury studies, and

therefore could not fully evaluate whether an isolated specialized instruction

could affect juror bias.

140

Elek and Hannaford-Agor hypothesized that the

mock jurors participating in the study may have been influenced by in-

creased societal awareness of racial inequality and implicit bias. The materi-

als to measure the baseline racial bias of the mock jurors were over a decade

old, and the study took place in the months preceding the trial of George

Zimmerman for the death of Black high-school student Trayvon Martin.

141

Mock jurors may have had an increased sensitivity of racial disparities lead-

ing them to “self-correct” during the research study.

142

Elek and Hannaford-

Agor cautioned against a conclusion that racial bias among jurors had been

solved.

143

Notably, use of the instruction did not produce a “backlash” effect;

white jurors did not punish black defendants more harshly after hearing the

instruction.

144

Critiques of discussing racial bias with juries argue it may

reinforce racial stereotypes, create resentment in jurors, and result in jurors

135. Id. at 6.

136. JENNIFER K. ELEK & PAULA HANNAFORD-AGOR, NAT’L CTR. FOR STATE. COURTS,

CAN EXPLICIT INSTRUCTIONS REDUCE EXPRESSIONS OF IMPLICIT BIAS? NEW QUESTIONS

FOLLOWING A TEST OF A SPECIALIZED JURY INSTRUCTION 14 (April 2014).

137. Id.

138. Id.

139. Id.

140. Id. at 15.

141. Id. at 16.

142. Id. (“The increased salience of race and race norms in routine media communica-

tions about the American justice system could have primed participants to spontaneously

self-monitor and correct for possible bias.”)

143. Elek & Hannaford-Agor, supra note 136, at 16.

144. Id. at 15.

24 UA LITTLE ROCK LAW REVIEW [Vol. 43

treating black defendants more harshly.

145

These concerns seem overstated,

especially when the jurors have received education on racial bias, strategies

for reducing bias, and careful questioning during voir dire.

146

More research is needed on how best to use jury instructions to miti-

gate juror bias. However, research trends support that the court should en-

gage jurors more deeply with bias mitigating strategies.

D. Suggested Uses for AMI Crim. 2d 101

Jury instructions are an important step in reducing racial disparities in

criminal convictions and sentencing. Yet, however expansively crafted, the

use of jury instructions alone is not a panacea for juror racial bias. As the

National Center for State Courts study by Ekel and Hannaford-Agor found,

jury instructions may not be effective in combatting juror bias when used in

isolation.

147

Additional research and scholarship suggests that jury instruc-

tions are an important, yet incomplete, solution.

148

Indeed, the holding of

Peña-Rodriguez is predicated on the Court’s recognition that existing safe-

guards, including jury instructions, are important tools yet are insufficient to

satisfy the Sixth Amendment’s right to an impartial jury.

149

Put simply, the amendment to AMI Crim. 2d 101 is a start, not a finish.

All actors in the criminal trial—judges, defense attorneys, and prosecutors—

should unite in achieving a jury process as free from racial bias as possible.

Below are recommendations outlining how courts and attorneys in Arkansas

can leverage AMI Crim. 2d 101 to mitigate juror racial bias.

1. Take AMI Crim. 2d 101 to the Next Level

The passage of AMI Crim. 2d 101 is a critical measure for Arkansas

courts. Arkansas is one of the first states to move towards impartial criminal

trials by adopting a jury instruction about racial bias. The instruction is im-

pactful because it is given in every civil and criminal trial, and offers a much

more useful illustration of the range of juror bias by educating jurors to

avoid “biases,” “perceptions,” or “stereotypes” based on “disability, gender,

race, religion, ethnicity, sexual orientation, age, national origin, or socio-

145. Jennifer K. Elek and Paula Hannaford-Agor, First, Do No Harm: On Addressing the

Problem of Implicit Bias in Juror Decision Making, 49 CT. REV. 190, 192–194 (2013) (sur-

veying literature).

146. Id. at 195–197.

147. Elek & Hannaford-Agor, supra note 136, at 14.

148. Cynthia Lee, Awareness as a First Step Toward Overcoming Implicit Bias, in

ENHANCING JUSTICE: REDUCING BIAS 292 (Sarah Redfield ed., 2017).

149. 137 S. Ct. 855, 871 (2017).

2020] MOVING THE NEEDLE 25

economic status.”

150

The new specificity is an improvement upon the general

admonishment to avoid “sympathy, prejudice, or like or dislike” in the prior

instruction. Further, the instruction acknowledges, albeit briefly, the opera-

tion of unconscious bias: “[w]e may be aware of some of our biases, but not

fully aware of others.”

151

Additionally, AMI Crim. 2d 101 is given at the

beginning of a trial; there is empirical support that jury instructions are more

effective when given at the beginning of the trial, rather than waiting until

jurors have heard the evidence.

152

Despite the importance of its amendment, AMI Crim. 2d 101 could go

further in helping jurors understand the operation of bias and its deleterious

effects. Arkansas is in the middle range of jurisdictional approaches to using

jury instructions to mitigate juror racial bias.

153

The instruction could expand

its explanation of implicit bias, better assist jurors in connecting the opera-

tion of bias to decisions about the case and admonish jurors to take extra

care to avoid bias-based decisions.

For example, AMI Crim. 2d 101 needs more specificity to enhance its

effectiveness. Judge Bennett’s instruction and the instruction used by Mas-

sachusetts courts, discussed supra, are two examples. The ABA’s proposed

instruction is another example. The AIJ instruction provides:

Scientists studying the way our brains work have shown that, for all of

us, our first responses are often like reflexes. Just like our knee reflexes,

our mental responses are quick and automatic. Even though these quick

responses may not be what we consciously think, they could influence

how we judge people or even how we remember or evaluate the evi-

dence.

154

Both the Ninth Circuit and the U.S. District Court for the Western Dis-

trict of Washington give jurors the following definition before opening

statements:

150. AMC Crim. 2d 101(d).

151. Id.

152. AMERICAN BAR ASSOCIATION, supra note 118, at 16 (reviewing research); Elizabeth

Ingriselli, Mitigating Jurors’ Racial Bias: The Effects of Content and Timing of Jury Instruc-

tions, 124 YALE L.J. 1690, 1729–1730 (2015) (jury instructions should be given towards the

beginning of trial); see also Mark W. Bennett, Reinvigorating and Enhancing Jury Trials

Through an Overdue Juror Bill of Rights: A Federal Trial Judge’s View, 48 ARIZ. ST. L.J.

481, 505–09 (2016) (jurors should be given individual sets of jury instructions in plain lan-

guage before trial); Nancy S. Marder, Bringing Jury Instructions into the Twenty-First Cen-

tury, 81 NOTRE DAME L. REV. 449, 498 (2006) (“It would be useful for judges to give jurors

‘preliminary jury instructions’ in which they tell jurors about their role, the case, and the law

so that jurors have some framework in which to place the trial that is about to unfold.”).

153. Supra Section IV.B.

154. AMERICAN BAR ASSOCIATION, supra note 118, at 17–18.

26 UA LITTLE ROCK LAW REVIEW [Vol. 43

Unconscious biases are stereotypes, attitudes, or preferences that people

may consciously reject but may be expressed without conscious aware-

ness, control, or intention. Like conscious bias, unconscious bias can af-

fect how we evaluate information and make decisions.

155

Washington jurors are given the following instruction before jury se-

lection:

[In addition to conscious bias], there is another more subtle tendency at

work that we must all be aware of. This part of human nature is under-

standable but must play no role in your service as jurors. In our daily

lives, there are many issues that require us to make quick decisions and

then move on. In making these daily decisions, we may well rely upon

generalities, even what might be called biases or prejudices. That may be

appropriate as a coping mechanism in our busy daily lives but bias and

prejudice can play no part in any decisions you might make as a juror.

156

Another strategy would be to use a specialized jury instruction on im-

plicit bias when race is a factor in the criminal trial. Arkansas courts inter-

ested in use of specialized jury instruction can look to the AIJ instruction for

guidance. Law Professor Cynthia Lee proposed a “race-switching” jury in-

struction that may help jurors test their decisions for implicit bias:

If you are unsure about whether you have made any unfair assessments

based on racial stereotypes, you may engage in a race-switching exercise

to test whether stereotypes have colored your evaluation of the case be-

fore you. Race-switching involves imagining the same events, the same

circumstances, the same people, but switching the races of the parties.

For example, if the defendant is White and the victim is Latino, you

would imagine a Latino defendant and a White victim. If your evaluation

of the case before you is different after engaging in race-switching, this

suggests a subconscious reliance on stereotypes. You may then wish to

reevaluate the case from a neutral, unbiased perspective.

157

At least one court has used a specialized instruction based on Professor

Lee’s model, with the trial judge noting he used a similar exercise during

sentencing of any defendant of a different race.

158

Other courts have been

155. NINTH CIRCUIT MANUAL OF MODERN CRIMINAL JURY INSTRUCTIONS, DUTY OF THE

JURY, S3 MODERN FEDERAL JURY INSTRUCTIONS-CRIMINAL § 1.1 (2019); W.D. Washington

Implicit Bias Instruction, https://www.wawd.uscourts.gov/sites/wawd/files/CriminalJury

Instructions-ImplicitBias.pdf.

156. ADVANCE ORAL INSTRUCTION—BEGINNING OF PROCEEDINGS, 11 WASH. PRAC.,

PATTERN JURY INSTR. CRIM. WPIC § 1.01 (4th Ed).

157. AMERICAN BAR ASSOCIATION, supra note 118, at 21–22.

158. James McComas & Cynthia Strout, Combating the Effects of Racial Stereotyping in

Criminal Cases, CHAMPION, August 1999, at 22, 24 (describing assault trial of black teen

after teen subjected to repeated racialized bullying).

2020] MOVING THE NEEDLE 27

hesitant to use specialized implicit bias instructions.

159

These examples, as

well as others in Appendix B., can guide Arkansas courts towards better

defining implicit racial bias for jurors.

2. Structure the Jury Process to Value Racial Equity

Arkansas courts should leverage the ideals of Peña-Rodriguez and

AMI Crim. 2d 101 in structuring criminal trials to mitigate racial bias and

maximize the opportunity for racial equity. Below are recommendations for

courts and attorneys.

a) Race salience

Making race salient, or illuminating the possible operation of racial bi-

as, can move beyond the bias awareness achieved by jury instructions. The

race-salience research suggests that juror awareness of implicit bias is a nec-

essary, but not sufficient, bias-mitigation measure.

160

Some research sug-

gests that White jurors are more conscious of the need to mitigate bias when

racial issues are obvious, versus ambiguous, as in racially-charged cases.

161

In a series of experiments, Samuel Sommers and Phoebe Ellsworth

found that racially-salient facts affected decisions in mock jurors.

162

One

experiment involved a hypothetical domestic assault trial where a boyfriend

slapped his girlfriend in a bar, knocking her down.

163

The researchers pro-

vided mock jurors with an identical trial summary with one White boy-

friend/Black girlfriend combination and one Black boyfriend/White girl-

friend combination.

164

In the race-salient condition, the boyfriend yelled,

“you know better than to talk that way about a White man (or Black man) in

front of his friends.”

165

In the non-race-salience condition, the boyfriend

yelled, you know better than to talk that way about a man in front of his

friends.

166

In the race-salient fact pattern, the jurors treated the Black and

159. See State v. Williams, 929 N.W.2d 621, 632–33 (Iowa 2019) (denying request to use

AIJ instruction); State v. Nesbitt, 308 Kan. 45, 49–50, 60 (2018) (upholding denial of request

to use race-switching instruction).

160. Lee, Awareness as a First Step, supra note 148, at 295.

161. Lee, Making Race Salient, supra note 71, at 1585–87 (discussing research); Lee,

Awareness as a First Step, supra note 143, at 292–95 (same).

162. Lee, Making Race Salient, supra note 71, at 1586–89 (citing Sommers & Ellsworth,

supra note 79, at 201–229).

163. Lee, Awareness as a First Step, supra note 148, at 293–294.

164. Id.; Sommers & Ellsworth, supra note 82, at 212.

165. Lee, Awareness as a First Step, supra note 148, at 294 (emphasis added).

166. Id. (emphasis added).

28 UA LITTLE ROCK LAW REVIEW [Vol. 43

White defendants equally.

167

In the non-race-salient condition, jurors were

more likely to convict the Black defendant.

168

In another experiment Sommers and Ellsworth gave mock jurors a trial

summary of an assault between two high school basketball teammates.

169

before, they switched the race of the defendants.

170

In the race-salient condi-

tion, a witness testified the defendant was “the subject of racial remarks and

unfair criticism.”

171

In the non-race-salient condition, the witness testified

the defendant experienced, “obscene remarks and unfair criticism.”

172

When

given the race-salient fact pattern, mock jurors treated the defendants equal-

ly.

173

In the non-race-salient condition, jurors were more willing to convict

the Black defendant and recommended a harsher sentence.

174

Courts and attorneys can make race salient during jury selection. In

Arkansas, attorneys can ask potential jurors about racial prejudice during

voir dire.

175

During jury selection, judges can explain AMI Crim. 2d 101 and

can reflect on their own bias-mitigation efforts,

176

like retired Judge Bennett,

or the judge who spoke to jurors about the race-switching exercise he per-

forms before sentencing. Attorneys can reflect on their own experiences

with bias mitigation, or use other examples that discuss racial bias.

177

The

W.D. Washington instruction given before jury selection contemplates the

use of demonstrative aids by attorneys to talk to jurors about bias.

178

Jury

selection is an opportunity to talk about Peña-Rodriguez and the need to

bring concerns about juror racial bias to the court’s attention before the ver-

dict when the court has broad discretion to address such issues.

Jury questionnaires about racial beliefs can both explore racial bias and

make race salient.

179

Rule 32.1 of the Arkansas Rules of Criminal Procedure

167. Id.

168. Id.

169. Lee, Awareness as a First Step, supra note 148, at 293.

170. Id.

171. Id. (emphasis added).

172. Id. (emphasis added).

173. Id.

174. Id.

175. Smith v. State, 33 Ark. App. 52, 53, 800 S.W.2d 440, 441 (1990).

176. Lee, Making Race Salient, supra note 71, at 1592–93.

177. Id. at 1592–94.

178. Preliminary Instruction, UNITED STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF WASH., https://www.wawd.uscourts.gov/sites/wawd/files/CriminalJury

Instructions-ImplicitBias.pdf. (last visited Jul. 12, 2020). Jurors are informed “ . . . during this

voir dire and jury selection process, I [the lawyers] may ask questions [or use demonstrative

aids] related to the issues of bias and unconscious bias.” (brackets in original).

179. See Mikah K. Thompson, Bias on Trial: Toward an Open Discussion of Racial

Stereotypes in the Courtroom, 2018 Mich. St. L. Rev. 1243, 1299 (providing sample ques-

tions based on U.S. v. Ortiz, 315 F.3d 873 (8th Cir. 2002)). The results from the jury ques-

tionnaire in Ortiz revealed some jurors had “difficulty” with differently-raced persons, would

2020] MOVING THE NEEDLE 29

requires potential jurors to complete a questionnaire seeking the following

basic information: (i) age, (ii) marital status, (iii) extent of education, (iv)

occupation of juror and spouse, and (v) prior jury service. Upon good cause,

potential jurors may be asked for additional information such as racial bi-

as.

180

Courts can move beyond the standard jury questionnaire and ask po-

tential jurors questions aimed at probing racial attitudes and prejudices.

181

Jurors may be more willing to admit to bias in an individual questionnaire,

and courts should remove any jurors admitting to racial bias.

182

The concept of race salience can inform arguments and witness testi-

mony as well. Opening statements can highlight the potential for racial ste-

reotyping.

183

Defense counsel can discuss stereotypes of Black defendants as

more criminal, and prosecutors can use race salience during arguments to

contextualize a self-defense argument when the victim is Black.

184

A lay

witness can discuss pertinent facts about racial bias, or an expert witness can

provide insight for the jury about the range of racial bias.

185

To make race

salient, courts and attorneys need to move beyond educating about bias to

demonstrating how race may affect juror decision-making.

b) Educate Jurors on De-biasing

Research supports the use of checklists as de-biasing technique.

186

The

AIJ instruction proposed that jurors use de-biasing techniques supported by

social science data:

Take the time you need to test what might be reflexive unconscious re-

sponses and to reflect carefully and consciously about the evidence.

not want a differently-raced neighbor, or believed certain races to be “more violent.” 315

F.3d at 890. In reviewing the questionnaire responses with the jury, the judge asked whether

anyone would be “less likely to believe” someone from another race. Id. at 890–92. Predicta-

bly, no juror was willing to admit to being prone to biased decision-making. Id.

180. Ark. R. Crim. P. 32.1.

181. Thompson, supra note 179, at 1298.

182. Id.

183. Lee, Making Race Salient, supra note 71, at 1594.

184. See id.

185. An expert witness can testify about the difficulties of cross-racial identification, or

the tendency of witness to mistake facts based on race. Unfortunately, courts frequently ex-

clude expert witness testimony about implicit bias. Anona Su, A Proposal to Properly Ad-

dress Implicit Bias in the Jury, 31 HASTINGS WOMEN’S L.J. 79, 87–88 (2020). Judges have

broad discretion to admit expert testimony, and doing would be helpful for the jury in under-

standing racial bias and making race salient.

186. NATIONAL CENTER FOR STATE COURTS, HELPING COURTS ADDRESS IMPLICIT BIAS

G7-G9 (2012) (surveying studies), https://ncsc.contentdm.oclc.org/digital/collection

/accessfair/id/246.

30 UA LITTLE ROCK LAW REVIEW [Vol. 43

 Focus on individual facts, don’t jump to conclusions that may have

been influenced by unintended stereotypes or associations.

 Try taking another perspective. Ask yourself if your opinion of the

parties or witnesses or of the case would be different if the people

participating looked different or if they belonged to a different

group?

 You must each reach your own conclusions about this case individ-

ually, but you should do so only after listening to and considering

the opinions of the other jurors, who may have different back-

grounds and perspectives from yours.

Working together will help achieve a fair result.

187

Courts may encourage jurors to take notes,

188

as research demonstrates

that jurors “mis-remember” facts.

189

Law professor Justin Levinson’s study

of mock jurors found that, when given identical facts about an assault only

varying the race of the defendant, jurors recalled the black defendant as act-

ing more aggressively.

190

While courts may be concerned about jurors being

distracted from the trial, taking notes may help jurors remember facts more

accurately and enhance deliberations.

3. Update Arkansas’s Jury Education

Jury orientation materials in Arkansas should be updated to better focus

on racial bias. A critical way for Arkansas courts to better address juror bias

is to update its current jury orientation materials to incorporate AMI Crim.

2d 101 and the Sixth Amendment protections recognized in Peña-

Rodriguez. There are simple ways to improve juror orientation in Arkansas

courts. Language based AMI Crim. 2d 101 can be added to what is currently

the “Juror’s Web Guide” section of the Arkansas Judiciary’s website, cau-

tioning jurors to avoid bias or favoritism on the basis of disability, gender,

race, religion, ethnicity, sexual orientation, age, national origin, or socio-

economic status.

191

The language on the website can encourage jurors to

187. AMERICAN BAR ASSOCIATION, supra note 118, at 18–19.

188. NATIONAL CENTER FOR STATE COURTS, supra note 186, at G8 (“Judges and jurors

should take notes as the case progresses so that they are not forced to rely on memory (which

is easily biased) when reviewing the evidence and forming a decision.”) citing Justin D.

Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering,

57 Duke L. J. 345 (2007).

189. Smith, Levinson & Robinson, supra note 1, at 901–902.

190. Id.

191. Arkansas’s “Juror’s Web Guide” is available on the Arkansas Judiciary website at

https://www.arcourts.gov/jury (last visited Jul. 12, 2020).

2020] MOVING THE NEEDLE 31

bring concerns about juror bias to the court at any point before the verdict,

when the court has wide discretion to intervene.

192

The voice-over narration

in Arkansas’s jury orientation video educates jurors on a range of issues,

including juror duties and what to expect during the trial.

193

With some edit-

ing, the narration could include a discussion about avoidance of bias. Arkan-

sas could, of course, produce its own video on implicit bias, or add a more

robust discussion of racial bias in its current video.

There are jury orientation materials from other jurisdictions are availa-

ble to guide Arkansas courts. The United States District Court for the West-

ern District of Washington released a brief and informative video entitled,

Understanding the Effects of Unconscious Bias, to educate potential jurors

on implicit bias.

194

The video pairs plain-language explanations about im-

plicit bias with concrete examples—jurors engage in brief exercises to high-

light the assumptions and stereotypes they might hold.

195

After the explana-

tion and examples, jurors are given anti-biasing techniques; they are coun-

seled to be aware of the operation of bias, carefully examine decisions, and

re-consider their evaluation of the evidence if they notice bias informing

conclusions.

196

Lower courts outside the Western District of Washington are

beginning to use the video for jury orientation.

197

One court recently de-

scribed the video as, “a welcome addition to the instructions jurors receive,

as evidence supports that greater awareness of unconscious bias likely leads

to fairer decisions.”

198

Other courts have been hesitant to show the video, but

have committed to using de-biasing methods during the trial, such as voir

dire and jury instructions, to mitigate juror bias.

199

192. The Juror’s Web Guide contains a wealth of educational resources for jurors about,

inter alia, jury service, trial procedure, and evaluating evidence. A section on recognizing

racial bias, and what to do if a juror believes racial bias is at play, could empower jurors to

bring concerns to the judge before the verdict.

193. Arkansas Jury Service, ARKANSAS JUDICIARY, https://www.arcourts.gov/jury (last

visited Sept. 4, 2020).

194. Unconscious Bias Juror Video, UNITED STATES DISTRICT COURT WESTERN DISTRICT

OF WASH., https://www.wawd.uscourts.gov/jury/unconscious-bias. (last visited Jul. 12, 2020)

(providing instructions on how to request use of the video are available on the court’s web-

site).

195. Id.

196. Id.

197. See United States v. Lawrence, No. 1:18-cr-527 (E.D.N.Y Nov. 6, 2019) (order

granting request to show video and noting use of video in the Northern District of California).

198. Id. at *2.

199. See e.g., United States v. Covarrubias, 2020 U.S.Dist. LEXIS 42496, at *1–2 (D.

Nevada, 2020) (denying request to show video used by W.D. Washington but expressing

intention to use Ninth Circuit implicit-bias instruction during voir dire and throughout the

trial); United States v. Jessamy, 2020 U.S. Dist. LEXIS 95172, at *15–16 (M.D. Pa 2020)

(declining to show video but including implicit bias jury instructions).

32 UA LITTLE ROCK LAW REVIEW [Vol. 43

The ABA Section of Litigation has produced a video as well – The Sci-

ence and Implications of Implicit Bias.

200

While the ABA video is lengthier

at twenty-five minutes, it might be useful in some cases. Another example is

Minnesota’s recently amended jury handbook and orientation video.

201

While neither reference racial bias explicitly, both caution that human

“brains are hardwired to make unconscious decisions.”

202

Jurors are then

asked to be “self-aware about [] biases” during deliberations.

203

Arkansas judges can be proactive in educating jurors from the bench

about racial bias. Arkansas Circuit Judge Wendell L. Griffen educates jurors

in his courtroom on racial bias.

204

While on the bench, now-retired Judge

Mark Bennett spent about twenty-five minutes discussing implicit bias with

potential jurors.

205

He gave a lengthy explanation of the presumption of in-

nocence and the prosecution’s burden of proof.

206

Judge Bennett then played

a video demonstrating how racial bias and stereotypes, as well as in-group

favoritism, can affect decision-making.

207

The AIJ Toolbox contains several

resources for courts in developing bias-reduction jury orientation materi-

als.

208

200. Implicit Bias Initiative, AMERICAN BAR ASSOCATION, https://www.americanbar.org/

groups/litigation/initiatives/task-force-implicit-bias/ (last visited Jul. 12, 2020).

201. Jury Handbook, All Rise: Jury Service in Minnesota, MINNESOTA JUDICIAL BRANCH

(2019), http://www.mncourts.gov/mncourtsgov/media/scao_library/Jury/Juror-Handbook.pdf

(last visited Jul. 12, 2020) [hereinafter Jury Handbook]; Jury Service, MINNESOTA JUDICIAL

BRANCH, http://www.mncourts.gov/Jurors.aspx#tab06Orientation (last visited Jul. 12, 2020)

(showing orientation video).

202. Jury Handbook, supra note 201, at 9.

203. Id.

204. Unconscious Bias Can Lead to Wrongful Convictions, Local Judge Says, THV11,

February 6, 2020, https://www.thv11.com/article/news/crime/pulaski-county-judge-explains-

how-unconscious-bias-can-lead-to-wrongful-convictions/91-fb486f72-3e83-4173-945e-

ae0c83cf6237.

205. Kang et al., Implicit Bias in the Courtroom, supra note 72, at 1182.

206. Bennett, Manifestations of Implicit Bias in the Courts, supra note 1, at 78–79 (de-

scribing explanation).

207. Judge Bennett showed jurors a brief video clip from the ABC show “What Would

You Do?” The clip depicts three people attempting to “steal” a bike in a park. The young

white male attracts some suspicion, but no one intervenes; despite obvious efforts to break

the chain with tools, on-lookers give him the benefit of the doubt. When a young White

woman tries to steal the bike, several people stop to help her, even when she jokes about

stealing the bike. However, when a young Black man (dressed similarly to the young White

man) attempts to steal the bike, an angry crowd gathers. Several people yell, one man decides

to take away his tools, and another calls the police. The video offers a powerful portrayal of

the role stereotypes play in decision making – the Black man was the only one of the three

presumed to be a criminal. The video clip is just under 5 minutes. The video can be found at:

VladCantSleep, What Would You Do? Bike Theft (White Guy, Black Guy, Pretty Girl),

YOUTUBE (May 27, 2010), https://www.youtube.com/watch?v=ge7i60GuNRg.

208. AMERICAN BAR ASSOCIATION, supra note 118.

2020] MOVING THE NEEDLE 33

The Western District of Washington has received positive initial feed-

back on its implicit bias jury orientation efforts. The court surveyed past

jurors regarding their reactions to the video and whether it affected their

decision-making.

209

Of the 125 jurors who responded, the majority reported

a low level of knowledge about implicit bias before the video.

210

About 30%

reported being “not familiar at all” while 31% reported being “somewhat

familiar” with implicit bias.

211

Ninety-two percent of the jurors found the

video “educational on the concept of implicit bias.”

212

Approximately 38%

reported it influenced, apparently in a positive way, the way the jurors an-

swered questions during jury selection.

213

Fifty-one percent reported that the

video influenced how they considered testimony and evidence during delib-

eration, with a few jurors commenting “I gave everything a second thought,”

and “maintained [an] open mind.”

214

Sixty-six percent of jurors surveyed

rejected the idea that that video influenced their decision-making.

215

Educat-

ing jurors about racial bias may have a positive impact beyond the court-

room – an overwhelming 98% of jurors surveyed recommended continued

use of the video.

216

Jury education materials, combined with enhanced jury

education materials, may have educational and societal benefits beyond the

courtroom.

V. AFTER THE VERDICT: EVIDENCE OF JUROR BIAS DURING

DELIBERATIONS

Even when jurors have the benefit of jury instructions concerning racial

bias, a trial structured to mitigate bias, and focused jury education about

bias, some jurors will bring racial bias into juror deliberations. As discussed

above, each actor in the criminal justice system acts from some level of ra-

209. Memorandum from Jeff Humenik, Jury Administrator, to Judge John C.

Coughenour, Summary Report – Implicit Bias Questionnaire for Jurors, (Apr. 16, 2019),

https://civiljuryproject.law.nyu.edu/wp-content/uploads/2019/04/Implicit-Bias-Summary-

Report-Judge-Coughenour.pdf.

210. Id. The jury administrator provided “notable comments” from the questionnaire.

While jurors offered criticism in other areas (e,g. the video needed “concrete visual exam-

ples,” “was a bit dull,” and was “weak”), juror comments about the impact on jury instruction

were positive. Id. Jurors stated the video helped “understand” bias, was a “good refresher,”

served as a reminder to evaluate “internal reactions/feelings” and be “more conscious of my

biases” during jury selection. Id.

211. Id.

212. Id. A few jurors commented that the video should have provided more, not less,

information about implicit bias.

213. Id.

214. Id.

215. See Humenik, supra note 209. This sentiment is not surprising given societal unwill-

ingness to admit bias and individual overestimation of objectivity. Rachlinksi, supra note 4.

216. Id.

34 UA LITTLE ROCK LAW REVIEW [Vol. 43

cial bias. It is not surprising that isolating and divorcing racial prejudice and

favoritism from juror decision-making has been a challenge.

To understand the significance of the Peña-Rodriguez decision, it is

useful to examine the history of the no-impeachment rule. Common law

courts were staunchly protective of discussions during jury deliberation.

English courts forbade jurors from testifying about their jury verdict. In

1785, influential Judge Lord Mansfield excluded juror testimony that the

jury decided the case based on a coin toss.

217

American courts adopted the

“Mansfield Rule” and excluded juror testimony on both “subjective mental

processes” and “objective events” occurring during deliberations.

218

Some

jurisdictions adopted the “Iowa rule,” a more flexible approach that allowed

a juror to testify about objective events during deliberations since those

events could be corroborated by other jurors.

219

While less protective than

the Mansfield rule, the Iowa rule still excluded testimony about a juror’s

subjective thought process.

220

Federal courts later recognized an exception

for testimony about extraneous information during deliberations, such as the

use of newspaper articles.

221

Federal Rule 606 was part of the original codi-

fication of the Federal Rules of Evidence in 1975.

222

In passing Federal Rule 606, Congress rejected the Iowa rule, effective-

ly codifying the common-law “no impeachment” rule with limited excep-

tions. When evaluating “the validity of a verdict or indictment,” Federal

Rule 606 prohibits the consideration of almost all evidence (be it from a

juror’s testimony, affidavit, or other “evidence of a juror’s statement”) of

what occurred during a jury’s deliberations.

223

Specifically, “a juror may not

testify about any statement made or incident that occurred during the jury’s

deliberations; the effect of anything on that juror’s or another juror’s vote;

or any juror’s mental processes concerning the verdict or indictment.”

224

Post-verdict, the no-impeachment rule in Rule 606 places a “black box”

over jury deliberations: “[j]uries provide no reasons, only verdicts.”

225

217. Vaise v. Delaval, 1 T.R. 11, 99 Eng. Rep. 944 (K.B. 1785). For history of the com-

mon law rule, see Andrew J. Hull, Unearthing Mansfield’s Rule: Analyzing the Appropriate-

ness of Federal Rule of Evidence 606(b) in Light of the Common Law Tradition, 38 S. Ill. U.

L.J. 403, 409 (2014).

218. Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 863 (2017). See Michael Heister, State

v. Cherry: The Lone Juror Forces Arkansas to Confront Pre-Delibrative Juror Misconduct

and Rule of Evidence 606(b), 54 Ark. L. Rev. 823, 827–28 (2002).

219. Peña-Rodriguez, 137 S. Ct. at 863.

220. Id.

221. Id.

222. Federal Rules of Evidence, Pub. L. No. 93–595, 88 Stat 1926, 1934 (1975).

223. FED. R. EVID. 606(b).

224. Id.

225. United States v. Benally, 546 F.3d 1230, 1233 (10th Cir. 2008), abrogated by Peña-

Rodriguez, 137 S. Ct. 855.

2020] MOVING THE NEEDLE 35

Prior to the adoption of what is now Arkansas Rule 606, Arkansas

precedent closely aligned with the common law’s shielding of jury delibera-

tions.

226

he Arkansas Supreme Court

formally

adopted

the Uniform Rules of Evidence,

including Rule 606, in 1986, although it had been in use as part of the Uni-

form Rules of Evidence since 1976.

227

While the text of Arkansas Rule of

Evidence 606(b) and Federal Rule of Evidence 606(b) differ slightly, the

content is substantially similar.

228

Arkansas courts have often looked to fed-

eral precedent in construing Arkansas Rule 606.

229

There are few circumstances where evidence of jury deliberations can

be used to impeach a jury verdict.

230

Federal Rule 606 articulates three nar-

row exceptions to Federal Rule 606’s broad protection of jury deliberations;

a juror may testify about: (1) extraneous prejudicial information, (2) im-

proper outside influences, and (3) a mistake made in entering the verdict

form.

231

Arkansas Rule 606 similarly recognizes exceptions for extraneous

information and outside influences.

232

Additionally, Arkansas Code § 16-89-

130(c)(3) allows granting of a new trial when a jury verdict has been decid-

ed by lot.

233

Even when there is extraneous evidence or outside influence,

courts will examine whether there is prejudice before granting a new trial.

226. Heister, supra note 218, at 828 (“Arkansas statutes and case law relating to the im-

peachment of jury verdicts have not significantly changed since 1947”).

227. Ricarte v. State, 290 Ark. 100, 103–04, 717 S.W.2d 488, 489 (1986). The Arkansas

legislature adopted the Uniform Rules of Evidence in January 1976, but the Ricarte court

held the January 1976 session was an unconstitutional extension of a prior legislative session

and adopted the Uniform Rules of Evidence under the court’s rule-making power. Id. at 103.

228. See Witherspoon v. State, 322 Ark. 376, 382, 909 S.W.2d 314, 317 (1995) (describ-

ing Ark. R. Evid. 606(b) and Fed. R. Evid. 606(b) as “nearly identical”). The current text of

Arkansas Rule 606 almost exactly matches the 2005 version of Federal Rule 606. While

Arkansas Rule 606(b) does not incorporate the 2006 amendment to Fed. R. Evid. 606, which

added an exception for a mistake on the verdict form, a mistake on a jury form is grounds for

a new trial under AR Code § 16-89-130 (2012). Additionally, Ark. Rule 606(b) does not

reflect the 2011 “restyling” of the Federal Rules of Evidence, meant to clarify the text of the

rules and not change the substance.

229. Heister, supra note 218, at n. 52 (citing as examples Davis v. State, 330 Ark. 501,

511, 956 S.W.2d 163, 168 (1997) (Eighth Circuit); Watkins v. Taylor Seed Farm, Inc., 295

Ark. 291, 293, 748 S.W.2d 143, 144 (1988) (comparing Arkansas rule and federal rule and

citing to legislative history of Federal Rule 606); B. & J. Byers Trucking, Inc. v. Robinson,

281 Ark. 442, 447–48, 665 S.W.2d 258, 262 (1984) (citing to Federal Rule 606’s legislative

history)).

230. ARK. R. EVID. 606. This rule only applies to jurors; non-juror testimony, such as

from the court, court personnel, or the parties’ attorneys, can provide evidence of juror racial

bias after a verdict.

231. FED. R. EVID. 606.

232. ARK. R. EVID. 606.

233. ARK. CODE ANN. § 16-89-130 (2012).

36 UA LITTLE ROCK LAW REVIEW [Vol. 43

Arkansas courts have routinely shielded evidence of extraneous information

absent a showing of prejudice.

234

Several ideals undergird the protection Rule 606 affords jury delibera-

tion. In short, “[t]he rule gives stability and finality to verdicts.”

235

The no-

impeachment doctrine encourages the frank and open discussions jurors

need during deliberation to make hard, and sometimes unpopular, deci-

sions.

236

The protections of the rule assure jurors that they will not be sum-

moned back to the court to discuss deliberation.

237

Finally, the no-

impeachment rule avoids juror harassment after the verdict; attorneys repre-

senting disgruntled litigants cannot seek out evidence of conversations dur-

ing jury deliberation to attack the verdict.

238

The Arkansas Supreme Court

has observed the goal of Rule 606 is to, “balance the freedom of secret jury

deliberations with the ability to correct an irregularity in those delibera-

tions.”

239

Two Supreme Court decisions prior to Peña-Rodriguez demonstrate the

wide breadth of the no-impeachment doctrine. In Tanner v. United States,

the Supreme Court found no violation of the Sixth Amendment when jurors

fell asleep during parts of the criminal trial, consumed alcohol at recess and

seemed intoxicated, and ingested marijuana and cocaine.

240

One juror pro-

vided a sworn interview that he felt “the jury was one big party.”

241

In rejecting the former juror’s evidence of jury deliberations, the court

in Tanner found that juror intoxication is not an “outside influence” under

Federal Rule 606.

242

The criminal defendants’ Sixth Amendment rights, rea-

234. Compare Borden v. St. Louis Sw. Ry. Co., 287 Ark. 316, 320, 698 S.W.2d 795, 797

(1985) (finding prejudice when two jurors visited scene and described scene to other jurors

during deliberation), and Sunrise Enterprises, Inc. v. Mid-S. Rd. Builders, Inc., 337 Ark. 6,

11, 987 S.W.2d 674, 677 (1999) (finding prejudice when a juror brought extraneous legal

material that was examined and discussed during deliberations) with B. & J. Byers Trucking,

Inc. v. Robinson, 281 Ark. 442, 448, 665 S.W.2d 258, 262 (1984) (finding that extraneous

information provided by juror who visited scene that was “a public highway that was open to

inspection” was not prejudicial), Safeco Ins. Co. of Illinois v. S. Farm Bureau Cas. Ins. Co.,

2013 Ark. App. 696, 13, 430 S.W.3d 815, 824 (2013) (finding that a juror’s google search of

the meaning “intentional act” during jury deliberations in insurance action was extraneous

information but not prejudicial), and Finch v. State, 2018 Ark. 111, 10, 542 S.W.3d 143, 149

(2018) (finding no prejudice when juror looked up phrase “hung jury” on mobile phone dur-

ing deliberations).

235. Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 865 (2017).

236. Id. (stating Rule 606 “promotes full and vigorous discussion” among jurors); Tanner

v. United States, 483 U.S. 107, 120 (1987).

237. Peña-Rodriguez, 137 S. Ct. at 865.

238. Id. See also McDonald v. Pless, 238 U.S. 264, 267 (1915) (holding that the no-

impeachment doctrine prevents harassment).

239. Finch, 2018 Ark. at 12., 542 S.W.3d at 148.

240. Tanner, 483 U.S. at 115–17.

241. Id.

242. Id. at 125.

2020] MOVING THE NEEDLE 37

soned the court, were protected by several pre-verdict safeguards.

243

First,

attorneys and the court can examine potential jurors during voir dire about

racial bias.

244

Second, jurors are subject to observation before the verdict by

the trial judge, court personnel, and the parties.

245

Third, jurors can articulate

concerns, including about a fellow juror’s racial bias, to the court before the

verdict.

246

Finally, after the verdict, non-juror evidence of any misconduct is

admissible to impeach the verdict. While the Tanner court acknowledged

the tension between Rule 606’s deference to jury deliberation and the de-

fendant’s right to an impartial jury under the Sixth Amendment, the court in

Tanner remained concerned that allowing juror-provided evidence of delib-

erations would be too “intrusive” and cripple the jury system:

There is little doubt that post-verdict investigation into juror misconduct

would in some instances lead to the invalidation of verdicts reached after

irresponsible or improper juror behavior. It is not at all clear, however,

that the jury system could survive such efforts to perfect it.

247

The second Supreme Court case articulating the breadth of the no-

impeachment doctrine, Warger v. Shauers, was a civil negligence action

arising out of an accident between a motorcyclist and a truck driver.

248

Dur-

ing jury selection in Warger, plaintiff’s counsel asked about awarding dam-

ages for pain and suffering, and whether any juror agreed with the state-

ment: “I don’t think I could be a fair and impartial juror on this kind of

case.”

249

The juror at issue, who served as the jury’s foreperson, answered

no, expressing that she could be impartial.

250

The jury found in favor of the

defendant.

251

One of the jurors contacted plaintiff’s counsel to express con-

cern about the foreperson’s statement during deliberations. In the jury room,

the foreperson revealed her daughter had been at fault in a car accident, and

it would have “ruined her daughter’s life” had she been sued.

252

Plaintiff

moved for a new trial, arguing that the foreperson “deliberately lied during

voir dire about her impartiality and ability to award damages.”

253

In reject-

ing an exception to the no-impeachment rule for failure to disclose pro-

243. Id. at 127.

244. Id.

245. Id.

246. Tanner v. United States, 483 U.S. 107, 127 (1987).

247. Id. at 115–17.

248. Warger v. Shauers, 574 U.S. 40, 42 (2014).

249. Id. at 42–43.

250. Id.

251. Id.

252. Id.

253. Id.

38 UA LITTLE ROCK LAW REVIEW [Vol. 43

defendant bias during jury selection, the Warger court re-affirmed the re-

strictive nature of Rule 606.

254

Before Peña-Rodriguez, federal circuits had split on whether to recog-

nize a racial-bias exception to Rule 606.

255

256

A minority of states also rec-

ognized an exception to the no-impeachment rule for juror statements

demonstrating racial bias, or that racially biased statements during jury de-

liberations violated the Sixth Amendment.

257

For example, in United States

v. Benally, a juror made several biased statements against Native Americans,

including, “[w]hen Indians get alcohol, they all get drunk” and become vio-

lent.

258

Other jurors expressed the desire to “send a message back to the res-

254. Warger, 574 U.S. at 45.

255. Compare United States v. Villar, 586 F.3d 76 (1st.

Cir. 2009) (recognizing racial

bias exception and remanding for further findings), United States v. Henley, 238 F.3d 1111,

1122 (9th Cir. 2001) (during habeas challenge, finding line of cases recognizing a racial bias

exception “persuasive” and remanding for further findings) and Shillcutt v. Gagnon, 827 F.2d

1155, 1159 (7th Cir. 1987) (analyzing “whether prejudice pervaded the jury room” despite

no-impeachment bar) with United States v. Benally, 546 F.3d 1230 (10th Cir. 2008) (holding

that racially-biased statements by juror did not violated the Sixth Amendment nor warrant an

exception to the no-impeachment bar) and Williams v. Price, 343 F.3d 223, 233 (3d Cir.

2003), abrogated by Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) (rejecting racial-bias

exception in denying habeas).

256. This Article focuses on Peña-Rodriguez’s conclusion that statements of juror racial

bias violate the Sixth Amendment and therefore necessitate a departure from the no-

impeachment rule. The Peña -Rodriguez decision is often cited as recognizing an “exception”

to Rule 606. Prior to Peña -Rodriguez, courts deployed a variety of analytical frameworks to

evaluate statements of juror bias, including questioning whether racial bias can fit within

Rule 606’s existing exceptions for extraneous evidence or outside influence. An evaluation of

this history is outside the scope of this Article.

257. The Peña -Rodriguez court listed sixteen jurisdictions (eleven of which follow Fed-

eral Rule 606) recognizing a racial bias exception to the no-impeachment rule prior to its

decision—Connecticut, Delaware, Florida, Georgia, Hawai’i, Massachusetts, Minnesota,

Missouri, New Jersey, New York, North Dakota, Rhode Island, South Carolina, Washington,

Wisconsin, and the U.S. District Court for the District of Columbia. 137 S. Ct. 855, 865

(2017)., (Appendix to majority opinion) (citing State v. Santiago, 245 Conn. 301, 323–340,

715 A.2d 1, 14–22 (1998); Kittle v. United States, 65 A.3d 1144, 1154–1156 (D.C. 2013);

Fisher v. State, 690 A.2d 917, 919–921, and n. 4 (Del. 1996) (Appendix to opinion), Powell

v. Allstate Ins. Co., 652 So.2d 354, 357–358 (Fla.1995); Spencer v. State, 260 Ga. 640, 643–

644, 398 S.E.2d 179, 184–185 (1990); State v. Jackson, 81 Hawai’i 39, 48–49, 912 P.2d 71,

80–81 (1996); Commonwealth v. Laguer, 410 Mass. 89, 97–98, 571 N.E.2d 371, 376 (1991);

State v. Callender, 297 N.W.2d 744, 746 (Minn.1980); Fleshner v. Pepose Vision Inst., P.C.,

304 S.W.3d 81, 87–90 (Mo.2010); State v. Levitt, 36 N.J. 266, 271–273, 176 A.2d 465, 467–

468 (1961); People v. Rukaj, 123 App.Div.2d 277, 280–281, 506 N.Y.S.2d 677, 679–680

(1986); State v. Hidanovic, 2008 ND 66, ¶¶ 21–26, 747 N.W.2d 463, 472–474; State v.

Brown, 62 A.3d 1099, 1110 (R.I.2013); State v. Hunter, 320 S.C. 85, 88, 463 S.E.2d 314, 316

(1995); Seattle v. Jackson, 70 Wash.2d 733, 738, 425 P.2d 385, 389 (1967); After Hour

Welding, Inc. v. Laneil Mgmt. Co., 108 Wis.2d 734, 739–740, 324 N.W.2d 686, 690 (1982)).

258. Benally, 546 F.3d at 1231 (brackets in original).

2020] MOVING THE NEEDLE 39

ervation.”

259

Relying on Tanner, the Tenth Circuit court rejected a racial-

bias exception to Rule 606, and found Tanner’s endorsement of pre-verdict

protections sufficient to satisfy the Sixth Amendment.

260

The First Circuit rejected the Benally court’s approach in United States

v. Villar, finding a defendant’s right to an impartial jury under the Sixth

Amendment mandated an exception to the no-impeachment rule when a

juror acts from racial bias.

261

In Villlar, which involved the trial of a Hispan-

ic defendant, a juror alleged in an email to defense counsel that the majority

of the jury failed to consider the evidence and did not pay attention during

trial.

262

One juror stated, “I guess we’re profiling but they cause all the trou-

ble.”

263

While the trial judge found the juror’s biased statement “reprehensi-

ble,” the judge believed precedent prohibited intrusion into the juror’s

statements.

264

The First Circuit remanded, finding the no-impeachment rule

must yield to a defendant’s constitutional right to an impartial jury when

racial bias may have affected a juror’s vote to convict.

265

The Villar court

was skeptical that the Tanner pre-verdict protections provided “adequate

safeguards” against juror racial bias.

266

A. The Peña-Rodriguez Decision

The Supreme Court resolved the jurisdiction split in Peña-Rodriguez v.

Colorado, when it recognized that juror statements made during jury delib-

erations that indicate a reliance on racial stereotypes or racial animus violate

the Sixth Amendment.

267

Peña-Rodriguez involved a sexual assault trial

with a Hispanic defendant. During jury selection, potential jurors responded

to a written questionnaire asking them to identify, “anything about you that

you feel would make it difficult for you to be a fair juror.”

268

The court

asked the jurors a similar question, and encouraged the potential jurors to

raise concerns about impartiality privately with the court.

269

Defense counsel

also inquired about impartiality.

270

None of the jurors articulated concerns

about impartiality or racial bias.

271

None asked to speak with the court.

272

259. Id.

260. Id. at 1239–40.

261. United States v. Villar, 586 F.3d 76, 87 (1st.

Cir. 2009).

262. Id. at 81.

263. Id.

264. Id.

265. Id. at 87.

266. Id.

267. Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 879 (2017).

268. Id. at 861.

269. Id.

270. Id.

271. Id.

40 UA LITTLE ROCK LAW REVIEW [Vol. 43

The jury found Peña-Rodriguez guilty of unlawful sexual contact and har-

assment.

273

After the jury was discharged, two jurors remained in the jury room to

speak with defense counsel in private.

274

Both jurors reported that another

juror, H.C., expressed “anti-Hispanic bias”

275

towards Peña-Rodriguez and

one of the defense witnesses.

276

The jurors then provided sworn affidavits

describing H.C.’s statements during deliberations.

277

According to the affi-

davits, H.C. stated he “believed the defendant was guilty because, in

[H.C.’s] experience as an ex-law enforcement officer, Mexican men had a

bravado that caused them to believe they could do whatever they wanted

with women.”

278

H.C described Mexican men as “physically controlling of

women,” and having a “sense of entitlement.”

279

He also stated, “I think he

did it because he’s Mexican and Mexican men take whatever they want,”

and “nine times out of ten Mexican men were guilty of being aggressive

toward women and young girls.”

280

Despite the defense’s alibi witness testi-

fying that he was a legal resident of the United States, H.C. discounted the

witness’s testimony because he was “an illegal.”

281

Relying on Colorado’s version of Rule 606(b), the trial court denied

Peña-Rodriguez’s motion for a new trial.

282

The Colorado Court of Appeals

and Colorado Supreme Court affirmed the trial court’s denial of a new tri-

al.

283

Eleven states, including Arkansas, joined an amicus brief opposing a

racial bias exception.

284

Citing Tanner and Warger, the Colorado Supreme

Court affirmed, finding no “dividing line between types of juror bias or mis-

272. Id.

273. Peña-Rodriguez, 137 S. Ct. at 861. Peña-Rodriguez was also charged with attempted

sexual assault on a child; the jury did not reach a verdict on the sexual assault charge.

274. Id.

275. Id. at 861–63. The Court engaged in a brief discussion about whether the anti-

Hispanic bias against Peña-Rodriguez should be evaluated based on race or ethnicity. In

deciding to treat juror H.C.’s statements as “racial bias,” the Court noted the parties referred

to both racial and ethnic bias as an “expansive concept” in the briefing. The Court cited prior

precedent, including Fisher v. University of Texas at Austin, 133 S.Ct. 2411 (2013), in sup-

port of treating Hispanic ethnicity in the same way as race under the equal protection clause

of the Constitution.

276. Peña-Rodriguez, 137 S. Ct. at 861.

277. Id.

278. Id. at 862 (brackets in original).

279. Id.

280. Id.

281. Id.

282. Peña-Rodriguez, 137 S. Ct. at 862.

283. Id.

284. Brief for Indiana, Alabama, Arkansas, Georgia, Idaho, Louisiana, Maine, Nevada,

Pennsylvania, South Dakota, Texas, and Wyoming as Amici Curiae, Peña-Rodriguez v. Col-

orado, 137 S. Ct. 855 (2017) (No. 15-606), 2016 WL 4709482.

2020] MOVING THE NEEDLE 41

conduct.”

285

The United States Supreme Court granted certiori to decide

“whether there is a constitutional exception to the no-impeachment rule for

instances of racial bias.”

Colorado and the amici states made three basic arguments against an

exception to Rule 606(b) for juror statements of racial bias. The first argu-

ment was that a racial bias exception would create ambiguity and open the

door to other types of bias. The Colorado Supreme Court’s opinion typifies

this view, voicing skepticism that there exists a “dividing line between types

of juror bias or misconduct.” Second, Colorado and the amici states asserted

the traditional justifications for the no-impeachment rule – Rule 606(b) pro-

vides finality to verdicts, encourages open discussions among jurors, and

prevents juror harassment. Finally, citing Tanner, Colorado and the amici

states argued that the existing procedural safeguards, such as jury selection

and the ability of jurors to report concerns before the verdict, were sufficient

to guard against racial bias.

Writing for the majority, Justice Kennedy disagreed, holding the Sixth

Amendment is violated “where a juror makes a clear statement that indicates

he or she relied on racial stereotypes or animus to convict a criminal defend-

ant . . . .” The court articulated a two-part test. First, the juror’s statement

must show “overt racial bias.” Second, “racial animus” must have been a

“significant motivating factor” in the juror’s vote to convict. Thus, Peña-

Rodriguez created a racial bias exception, mandated by the Sixth Amend-

ment, to Rule 606’s no-impeachment rule.

286

In refuting the arguments against a racial bias exception, Justice Ken-

nedy repeatedly emphasized that racial bias and discrimination are different,

structural and insidious when compared to other forms of juror misconduct

protected by Rule 606. Racial bias is a “familiar and recurring evil” that

implicates “unique historical, constitutional, and institutional concerns.”

287

Racial prejudice is “odious in all aspects” and is “especially pernicious” in

disrupting the justice system.

288

Finally, racial bias is “distinct,” and “pos[es]

a particular threat both to the promise of the [Sixth and Fourteenth]

Amendment[s] and to the integrity of the jury trial.”

289

Courts, Justice Ken-

nedy reasoned, should treat juror racial bias with “added precaution.”

290

285. Id.

286. The Advisory Committee on Evidence Rules declined to amend Rule 606(b) in

response to Peña-Rodriguez. Memorandum from Hon. David G. Campbell, Chair of commit-

tee on Rules of Practice and Procedure to Hon. Debra Ann Livingston, Chair of Advisory

Committee on Evidence Rules (May 14, 2018), https://www.uscourts.gov/sites/

default/files/ev_report_1.pdf.

287. Peña-Rodriguez, 137 S. Ct. at 859.

288. Id.

289. Id. at 867.

290. Id. at 859.

42 UA LITTLE ROCK LAW REVIEW [Vol. 43

The court carefully distinguished the structural operation of racial bias

from what it called “anomalous” juror misconduct in Tanner and Warger.

291

The court acknowledged the problematic nature of juror alcohol and drug

use, as was the case in Tanner. However, the Court was unconvinced juror

“mischief” was a common occurrence.

292

In distinguishing a juror’s racial

bias from prior precedent excluding juror evidence of misconduct, the Court

explained,

The behavior in those cases is troubling and unacceptable, but each in-

volved anomalous behavior from a single jury—or juror—gone off

course. Jurors are presumed to follow their oath, and neither history nor

common experience show that the jury system is rife with mischief of

these or similar kinds. To attempt to rid the jury of every irregularity of

this sort would be to expose it to unrelenting scrutiny.

293

Recognizing a racial bias exception, the court reasoned, would not

eviscerate the protections of the no-impeachment rule.

294

The Peña-Rodriguez holding aligned with the First Circuit’s holding in

Villar, finding the procedural safeguards idealized by Tanner and Warger

were sufficient to prevent racism during jury deliberations. General ques-

tions about impartiality during voir dire are inadequate to expose “specific

attitudes or biases that can poison” jury deliberations, while specific ques-

tions may exacerbate prejudice.

295

None of the jurors in Peña-Rodriguez

reported racial bias during jury selection.

296

Similarly, in Benally, the trial

judge asked two questions concerning potential racial bias, yet none of the

Benally jurors reported bias.

297

Juror racial bias is usually not obvious to

non-jurors such as judges, court personnel, parties, and attorneys observing

juror behavior before the verdict.

298

Finally, the Peña-Rodriguez court found

it unlikely that a juror would report a concern about another juror’s racial

bias before the verdict.

299

Reporting a concern about racial bias during trial

291. Id. at 868.

292. Id.

293. Peña-Rodriguez, 137 S. Ct at 868 (citing Tanner v. United States, 483 U.S. 107, 120

(1987)) (other citations omitted).

294. Id. at 869.

295. Id.

296. Id.

297. United States v. Benally, 546 F.3d 1230, 1231 (10th Cir. 2008), abrogated by Pena

Rodriguez, 137 S. Ct. 855 (2017). During voir dire, the trial judge in Benally asked, “[w]ould

the fact that the defendant is a Native American affect your evaluation of the case?” and

“[h]ave you ever had a negative experience with any individuals of Native American de-

scent? And, if so, would that experience affect your evaluation of the facts of this case?”

298. Peña-Rodriguez, 137 S. Ct. at 868–869.

299. Id. at 869.

2020] MOVING THE NEEDLE 43

is difficult for a juror—stigma makes it difficult to call a fellow juror a

“bigot.”

300

B. Recommendations for Leveraging Peña-Rodriguez

301

The Peña-Rodriguez case has yet to be analyzed by Arkansas state

courts or the Eighth Circuit. Below are recommendations for how to lever-

age Peña-Rodriguez in the effort to remediate the racial disparity in Arkan-

sas criminal sentencing.

1. Recognize How Bias Degrades Jury Deliberations

The Peña-Rodriguez court left open the question of what types of

statements satisfy the “overt racial bias” standard: “[n]ot every offhand

comment indicating racial bias or hostility will justify setting aside the no-

impeachment bar to allow further judicial inquiry.”

302

The Court’s failure to

distinguish between which types of statements demonstrate “overt racial

bias” and which are considered “offhand comments,” has created doctrinal

confusion in the lower courts. Scholarship analyzing court decisions in the

wake of Peña-Rodriguez

has been critical of the void left by the Supreme

Court and the inconsistent treatment by the lower courts.

303

One scholar

commented that the recognition of a racial-bias exception is, “long overdue

but also frustratingly incomplete.”

304

Some courts are affirming lower court judgments about the range of ra-

cial bias due to the deferential abuse of discretion standard.

305

Other courts

are construing Peña-Rodriguez broadly, recognizing that overt statements

include juror statements that rely on negative stereotypes based on race. For

example, in United States v. Smith, the defendant’s conviction was over-

turned because juror stated, “[y]ou know he’s just a banger from the hood,

300. Id.

301. The Author’s recommendations focus on how courts may interpret the Peña-

Rodriguez decision and engage in investigating a claim of juror racial bias. Beyond the scope

of these recommendations are very important considerations that relate to post-conviction

procedures in Arkansas, such as the narrow scope of a post-conviction remedy, the short time

limits for seeking review, and the limited access to counsel in Ark. R. Crim. P. 37.1 – 37.5.

Future scholarship can explore these considerations.

302. Peña-Rodriguez, 137 S. Ct. at 869.

303. R. Jannell Granger, Justice for All: The Sixth Amendment Mandates Purging All

Racial Prejudice From the Black Box, 63 HOW. L. J. 57, 75 (2019) (“Courts cannot agree on

what racist statements are racist enough to violate the Constitution’s requirement of an impar-

tial jury.”)

304. Christian B. Sundquist, Uncovering Juror Racial Bias, 96 DENV. L. REV. 309, 321

(2019).

305. See Id. at 329–331.

44 UA LITTLE ROCK LAW REVIEW [Vol. 43

so he’s got to be guilty.”

306

The court found that “banger from the hood” was

a racial stereotype.

307

Courts applying Peña-Rodriguez have also struggled

with whether racially-biased juror statements were prejudicial.

308

In reality,

it is unclear how broadly or narrowly lower courts are applying Peña-

Rodriguez since most new trial motions are rarely published or reviewed.

309

Peña-Rodriguez offered little guidance on how courts should determine

when a racially-biased juror statement becomes a “significant motivating

factor” in a juror’s decision to convict.

310

The Supreme Court left the deter-

mination to the discretion of trial court judges:

Whether [the significant motivating factor] threshold showing has been

satisfied is a matter committed to the substantial discretion of the trial

court in light of all the circumstances, including the content and timing

of the alleged statements and the reliability of the proffered evidence.

311

The Sixth Circuit provides a cautionary tale of narrowly defining when

racial bias motivates a juror’s vote. United States v. Robinson involved the

trial of three black defendants in 2015, before the Peña-Rodriguez deci-

sion.

312

After the guilty verdict, the trial judge admonished the attorneys not

to contact any jurors. However, defense counsel suspected there had been

racial tension during deliberations.

313

The attorneys hired an investigator to

interview the two Black jurors, who confirmed the racially-charged nature

of the deliberations.

314

Apparently, the Black jurors had a conflict between

the jury forewoman, a White woman.

315

Court personnel intervened twice in

the racialized disputes during deliberations.

316

Hours after the confrontation,

306. United States v. Smith, No. 12-183, 2018 WL 1924454, at *11 (D. Minn. 2018).

307. Id. at *30.

308. See, e.g., Williams v. Price, No. 2:98cv1320, 2017 WL 6729978, at *16–26 (W.D.

Pa. 2017) (finding that a juror using the N-word during deliberations insufficient to find

prejudice to defendant).

309. See, e.g. State v. Hills, No. 2019 KW 0466, 2019 WL 3024107 (La. Ct. App. Jul. 9,

2019) (unpublished case holding that the trial court abused its discretion in granting a new

trial after a juror made allegations of racial bias).

310. Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017).

311. Id.

312. United States v. Robinson, 872 F.3d 760 (6th Cir. 2017).

313. Id. at 767–68.

314. Id. at 768.

315. Id. The Black jurors alleged that on the last day of deliberations, the jury forewom-

an, a White woman, accused the women of “trying to hang” the jury. Id. The forewoman

stated she found it, “strange that the colored women are the only two that can’t see” the de-

fendants were guilty. Id. Angry at the forewoman’s racial remark, the three got in a “verbal

confrontation,” requiring the intervention of the court marshal. Id. While the forewoman

purported to apologize, she later expressed her belief that the Black women jurors felt they

“owed something” to their “[B]lack brothers,” resulting in another confrontation, and another

intervention by court personnel. Id.

316. Id.

2020] MOVING THE NEEDLE 45

the jury found the defendants guilty.

317

Despite the racial tension, both Black

jurors affirmed their decision to convict in the interview with the investiga-

tor.

318

Without interviewing the White forewoman, or other jurors witness-

ing the racial tension, the trial court denied defendants’ motion for a new

trial.

319

The Sixth Circuit analyzed Peña-Rodriguez and concluded, despite the

trial court’s failure to hold a hearing, that the jury forewoman’s statements

did not evidence that racial animus motivated her decision to convict.

320

While the Robinson court conceded the forewoman’s comments “clearly

indicated racial bias,” the court made a dubious distinction between the ra-

cial hostility directed at Black jurors, versus racial bias directed at the Black

defendants.

321

The Robinson court took an unduly narrow (and strikingly

superficial) view of the forewoman’s conduct, one that contravenes the very

spirit of Peña-Rodriguez.

Arkansas courts should recognize the broad and deleterious impact of

any racially biased statement during jury deliberations. While Arkansas has

yet to apply Peña-Rodriguez, the Arkansas Supreme Court’s decision in

State v. Cherry can provide guidance.

322

In Cherry, an alternate juror over-

heard other jurors discussing the trial during breaks, and reported that some

of the jurors had “made up their minds” before deliberations.

323

The trial

court granted a new trial, and the state appealed, arguing in part that the dis-

cussions during trial were not prejudicial.

324

The Arkansas Supreme Court affirmed the trial court, holding an Ar-

kansas defendant is not “required to demonstrate exactly how he was preju-

diced; rather, he only needed to prove that there was a reasonable possibility

of prejudice.”

325

A “reasonable possibility of prejudice” exists when a juror

makes a decision before deliberations:

317. Id.

318. Robinson, 872 F.3d at 768–769.

319. Id. at 767.

320. Id. at 767–68, 772. See also Commonwealth v. Rosenthal, 2020 Pa. Super. 136, *4

(June 8, 2020) (holding that the trial court did not abuse discretion in denying motion for a

new trial without a hearing when Juror offered testimony about racially-biased remarks of

other groups) (“ . . . Juror Number 5 do not ‘show that racial animus was a significant moti-

vating factor in the juror[s’] vote to convict.’”)

321. Id. at 771.

322. State v. Cherry, 341 Ark. 924, 931, 20 S.W.3d 354, 359 (2000).

323. Id. at 927, 20 S.W.3d at 356.

324. Id. at 928, 20 S.W.3d at 357.

325. Id. at 931, 20 S.W.3d at 359.

46 UA LITTLE ROCK LAW REVIEW [Vol. 43

For even one juror to prematurely decide a defendant’s guilt before hear-

ing all the evidence and being instructed on the law, deprives that crimi-

nal defendant of his right to a fair and impartial jury.

326

Cherry is factually distinct from Peña-Rodriguez – the juror comments

were before trial and did not concern racial bias. However, the logical ex-

tension of Cherry is that evidence of “even one juror” prejudging a result

based on biased views and not evidence creates a “reasonable possibility of

prejudice.”

327

Arkansas has already recognized that derogatory racial remarks and

engaging negative stereotypes based on race can be prejudicial to jury delib-

erations, albeit in a different context. Lewis v. Pearson involved liability for

an automobile accident.

328

The plaintiff was Black and the defendant was

White.

329

There were no Black jurors; three potential Black jurors were

struck by the defendant after voir dire.

330

An investigator overhead a conver-

sation between a bailiff and a juror.

331

The conversation concerned, at least

in part, the bailiff’s handling of eviction notices.

332

During the conversation,

the bailiff said “[y]es, most of them were black, it seems they all feel like

the world owes them something.”

333

At the hearing on plaintiff’s motion for

a mistrial, the bailiff denied making the racist remark.

334

The juror con-

firmed the bailiff made the statement but denied that it influenced his jury

deliberations.

335

Despite the public denials by the bailiff and juror that racial

prejudice did not affect the verdict, the court reversed and remanded for a

new trial.

336

At first glance, the Lewis court’s examination of race and the jury pro-

cess is cursory. The court subjected the bailiff’s conduct to “close scrutiny”

because the bailiff was the court’s representative, and held, with little expla-

nation, that “the derogatory reference to black persons was such that the

possibility of prejudice was so great that the entire deliberations were taint-

ed.”

337

Implicit in the Lewis holding, however, is the recognition that the

bailiff’s statements engaged negative stereotypes of Black people. The con-

326. Id.

327. Id.

328. Lewis v. Pearson, 262 Ark. 350, 351, 556 S.W.2d 661, 664 (1977).

329. Id. at 351.

330. Id. at 352, S.W.2d at 664. Lewis was decided in 1977, almost a decade before the

Batson v. Kennedy decision in 1986 articulating the unconstitutionality of race-based peremp-

tory challenges.

331. Id. at 353–354, S.W.2d at 662.

332. Id. at 354 n. 2, S.W.3d at 663 n. 2.

333. Id. at 353–54, 556 S.W.2d at 663.

334. Lewis, 262 Ark. at 354, 556 S.W.2d at 663.

335. Id.

336. Id. at 354, 556 S.W.3d at 664

337. Id.

2020] MOVING THE NEEDLE 47

versation between the bailiff and the juror connected Blacks to high rates of

eviction and engaged stereotypes of Black people as financially irresponsi-

ble and willing to engage in unlawful conduct. The bailiff began his racially

biased remark with the word “yes,” suggesting he was agreeing with a simi-

larly derogatory statement made by the juror. The court’s opinion supports

the recognition of racial bias and its negative effect on jury deliberations.

2. Implement Clear Court Oversight of Post-Verdict Inquiry

The Peña-Rodriguez court declined to address “procedures” a trial

court must follow when deciding a motion for a new trial based on an alle-

gation of juror racial bias.

338

Therefore, lower courts have taken diverging

approaches when confronted with a post-verdict allegation of juror bias dur-

ing deliberations.

339

In State v. Berhe, the Washington Supreme Court provided clear pa-

rameters for court oversight that can guide courts in Arkansas.

340

In Berhe, a

juror contacted defense counsel after a Black defendant was convicted of

murder and assault.

341

Juror 6, the only Black juror, alleged she was subject-

ed to racial harassment, taunted, accused of being partial to the Black de-

fendant, “loudly mocked” when she offered alternative views of the evi-

dence, and “personally ridiculed in a way the other dissenting jurors were

not.”

342

In a declaration supporting the defendant’s motion for a new trial,

Juror 6 described herself as being in emotional distress during deliberation,

and felt pressured to convict the defendant:

I felt like they were animals and I was their prey. I can only describe it as

feeling emotionally and mentally attacked. I felt emotionally abused; so

much so that it became debilitating . . . [I] couldn’t handle the pressure

of being a hold-out anymore.

343

The prosecution’s response contained declarations from six jurors who

responded to direct questions drafted by the attorneys: (1) “Did you person-

ally do anything to Juror #6 which was motivated by racial bias during de-

liberations?” and (2) “Did you observe any other juror do anything to Juror

338. Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 870 (2017).

339. Compare United States v. Smith, No. 12-183, 2018 WL 1924454, at *9–10 (D.

Minn. 2018) (evidentiary hearing contextualized with historical information) and Williams v.

Price, No. 2:98cv1320, 2017 WL 6729978, at *2 (noting trial court held evidentiary hearing)

with Patton v. First Light Property Mgmt., Inc., No. 14cv1489, 2017 WL 5495104, at *4

(S.D. Cal. 2017) (no evidentiary hearing).

340. State v. Berhe, 193 Wash. 2d 647, 144 P.3d 1172, 1174 (2019).

341. Id. at 1175.

342. Id. at 1176–77.

343. Id. at 1177.

48 UA LITTLE ROCK LAW REVIEW [Vol. 43

#6 which appeared to be motivated by racial bias during deliberations?”

344

While one juror was “uncomfortable by the frustration expressed” towards

Juror 6, all six jurors denied being motivated by racial bias, or witnessing

racial bias.

345

After reviewing the declarations, the trial court denied the de-

fense’s request for an evidentiary hearing and a new trial.

346

The Washing-

ton Court of Appeals affirmed, labeling Juror 6’s declaration “conclusory,”

“subjective,” and “lacking particularlized factual support.”

347

The Washington Supreme Court vacated the trial court’s decision and

remanded for further findings.

348

In doing so, the Washington Supreme

Court set clear parameters for lower courts applying Peña-Rodriguez – the

need for court oversight, and the need to conduct a “sufficient inquiry” rec-

ognizing the operation of implicit bias before denying a request for an evi-

dentiary hearing.

349

The parameters from Berhe can guide courts in Arkan-

sas.

a) Court supervision

On the issue of oversight, the Berhe court was frustrated by both sides’

contact with past jurors, and the prosecution’s formulation of targeted ques-

tions to the six jurors providing declarations: “[i]t is far too easy for counsel,

in their role as advocates, to taint the jurors and impede the fact-finding pro-

cess.”

350

After Berhe, once a juror in Washington alleges racial bias, all

counsel are notified and Washington courts supervise the process, conduct-

ing the inquiry on the record.

351

In Arkansas, where attorneys often inter-

view jurors after deliberations, Arkansas courts should supervise allegations

of juror racial bias to guarantee the fact-finding process is robust.

Court oversight when presented with an allegation of juror misconduct

can help prevent harassment of jurors after the verdict. A key part of the

Sixth Circuit’s holding in Robinson, for example, was defense counsel’s

hiring of an investigator to seek out the two Black jurors who appeared up-

set during announcement of the verdict despite the trial court’s admonish-

ment and local rules prohibiting post-verdict contact.

352

The district court

refused to consider the interview in defendants’ motion for a new trial be-

cause, inter alia, it was gathered in violation of the local rules and court’s

344. Id.

345. Id.

346. Berhe, 144 P.3d at 1177.

347. Id.

348. Id. at 1182.

349. Id. at 1174.

350. Id. at 1180.

351. Id.

352. United States v. Robinson, 872 F.3d 760, 770 (2017).

2020] MOVING THE NEEDLE 49

admonishment not to contact jurors, and due to Rule 606’s no-impeachment

bar.

353

During the trial, both the marshal and the clerk intervened in racial-

ized confrontations during deliberations between a White forewoman who

made racially-biased remarks and two Black jurors.

354

Had there been clear

procedures guiding the trial court, the jurors may have reported the fore-

woman’s remarks during deliberations, or, court personnel may have elevat-

ed the concern about racial bias before the verdict. Once counsel reported

concerns about racial tension, the court could have held an evidentiary hear-

ing with jurors providing testimony under oath, prevent defense-initiated

contact of the Black jurors after the verdict. A lack of procedures to root out

juror bias potentially increases concerns about the finality of the jury ver-

dict.

b) Sufficient inquiry informed by implicit bias

The Berhe court found error in the trial court’s failure to hold an evi-

dentiary hearing.

355

The court emphasized that lower court’s inquiry into

allegations of juror bias must incorporate a recognition of how implicit ra-

cial bias operates. Asking a past juror whether a decision was influenced by

bias is “insufficient” because “people are rarely aware of the actual reasons

for their discrimination and will genuinely believe the race-neutral reason

they create to mask it.”

356

Therefore, courts must ignore “equally plausible,

race-neutral explanations” and instead determine “whether the evidence,

taken as true, permits an inference that an objective observer who is aware

of the influence of implicit bias could view race as a factor in the jury’s ver-

dict.”

357

If so, the court should hold an evidentiary hearing.

In 2018, the Arkansas Supreme Court addressed the scope and proce-

dure of Arkansas Rule 606 in Finch v. Arkansas. Finch did not address Pe-

ña-Rodriguez, as it did not involve an allegation of racial bias.

358

Finch is

353. Id.

354. Id. at 768. Sixth Circuit Judge Bernice B. Donald was troubled by the Robinson

majority’s focus on procedural rules: “Unfortunately, the majority scants the serious constitu-

tional implications of the problems affecting the jury deliberations in the present case, instead

privileging an overly rigid adherence to local rules.” Id. at 782 (Donald, J. , dissenting).

355. Behre, 144 P.3d at 1183.

356. Id. at 1182.

357. Id.

358. Finch v. State, 2018 Ark. 111, *4–6, 542 S.W.3d 143, 146–48 (2018). In Finch, a

juror looked up the definition of “hung jury” during deliberations. Id. at 146–147. The court

learned about the incident after receiving a note from the jury. Id. at 147. After questioning

the juror under oath, the trial court dismissed the juror and replaced him with an alternate. Id.

at 148. The trial court denied defense counsel’s request to question the other jurors about

what information they received, did not provide a curative instruction (none was requested),

and denied a motion for a mistrial. Id. On the defense motions for a new trial, the trial court

50 UA LITTLE ROCK LAW REVIEW [Vol. 43

useful here, however, because it illustrates a starting point for how Arkansas

courts should proceed in evaluating claims of jury misconduct based on ra-

cial bias. Finch encouraged trial courts to engage in a “proper inquiry” of

the juror misconduct. The court contemplated that 606(b) allows inquiry into

both the information and its effect on the jury.

VI. CONCLUSION

The racial disparities in the Arkansas criminal justice system are deeply

troubling evidence of the role of racial bias in the criminal justice system. It

will take a focused effort by actors at every level of the system, from law

enforcement through incarceration, to achieve racial equity in the criminal

process. The statistics demonstrating racialized sentencing in Arkansas are

sobering, and the task of dismantling the structural inequities in criminal

sentencing can seem daunting. This Article has focused on one piece of the

racial equity puzzle – the jury process in Arkansas.

Despite the challenges, Arkansas is uniquely positioned to lead the

country towards mitigating the intrusion of racial bias in jury trials. The

amendment of AMI Crim. 2d 101 to address racial bias empowers Arkansas

courts and attorneys to structure criminal trials to ferret racial bias out of the

jury process before a defendant is unfairly subjected to a racially-biased

verdict. After a verdict, the Peña-Rodriguez decision makes clear that racial

bias during jury deliberations is a violation of the Sixth Amendment. These

tools, used together, can be part of moving the needle towards racial equity

in Arkansas criminal sentencing.

APPENDIX A

AMI Crim. 2d 101

RESPECTIVE DUTIES OF JUDGE AND JURY—CAUTIONARY

INSTRUCTIONS

(a) The faithful performance of your duties as jurors is essential to the

administration of justice.

(b) It is my duty as judge to inform you of the law applicable to this

case by instructions, and it is your duty to accept and follow them as a

whole, not singling out one instruction to the exclusion of others. You

should not consider any rule of law with which you may be familiar unless it

is included in my instructions.

held a hearing but did not hear additional questioning of the juror or allow evidence from

other jurors.

2020] MOVING THE NEEDLE 51

this trial. You are to apply the law as contained in these instructions to the

facts and render your verdict upon the evidence and law. Do not do any re-

search on the internet or otherwise; or any investigation about the case or the

parties on your own. You should not permit sympathy, prejudice, or like or

dislike of any party to this action or of any attorney to influence your find-

ings in this case.

(d) Many of us have biases about, or certain perceptions, or stereotypes

of other people. We may be aware of some of our biases, but not fully aware

of others. You must not let bias, prejudice, or public opinion influence your

decision. You must not be biased in favor of or against any party, witness, or

attorney because of his or her disability, gender, race, religion, ethnicity,

sexual orientation, age, national origin, or socio-economic status.

(e) In deciding the issues you should consider the testimony of the wit-

nesses and the exhibits received in evidence. The introduction of evidence in

court is governed by law. You should accept without question my rulings as

to the admissibility or rejection of evidence, drawing no inferences that by

these rulings I have in any manner indicated my views on the merits of the

case.

(f) Opening statements, remarks during the trial, and closing arguments

of the attorneys are not evidence but are made only to help you in under-

standing the evidence and applicable law. Any argument, statements, or

remarks of attorneys having no basis in the evidence should be disregarded

by you.

(g) I have not intended by anything I have said or done, or by any ques-

tions that I may have asked, to intimate or suggest what you should find to

be the facts, or that I believe or disbelieve any witness who testified. If any-

thing that I have done or said has seemed to so indicate, you will disregard

it.

(h) You cannot use cell phones and other communication devices for

any purpose when in the jury room during deliberations.

NOTE ON USE

This instruction is taken from AMI Civil 3d, 101. The court has held

that it is the better practice to give this instruction when requested or to re-

cite into the record the reasons for not giving it in the exceptional cases

when a refusal to give it is justified.

359

359. Smith v. Alexander, 245 Ark. 567, 433 S.W.2d 157 (1968); McDaniel Bros. Constr.

Co. v. Mid-State Constr. Co., 252 Ark. 1223, 1235, 482 S.W.2d 825, 831 (1972).

52 UA LITTLE ROCK LAW REVIEW [Vol. 43

APPENDIX B

Example Criminal Jury Instructions Regarding Unconscious Racial Bias

ABA, Achieving an Impartial Jury Proposed Instruction

American Bar Association,

Criminal Justice Section,

Achieving an Impartial Jury:

Addressing Bias in Voir Dire

and Deliberations, Toolbox

Toolbox available at:

https://www.americanbar.org/

content/dam/aba/publications/

criminaljustice/

voirdire_toolchest.pdf

Our system of justice depends on

judges like me and jurors like you being

able and willing to make careful and fair

decisions. Scientists studying the way our

brains work have shown that, for all of us,

our first responses are often like reflexes.

Just like our knee reflexes, our mental re-

sponses are quick and automatic. Even

though these quick responses may not be

what we consciously think, they could in-

fluence how we judge people or even how

we remember or evaluate the evidence.

Scientists have taught us some ways to

be more careful in our thinking that I ask

you to use as you consider the evidence in

this case:

 Take the time you need to test

what might be reflexive uncon-

scious responses and to reflect

carefully and consciously about

the evidence.

 Focus on individual facts, don’t

jump to conclusions that may have

been influenced by unintended ste-

reotypes or associations.

 Try taking another perspective.

Ask yourself if your opinion of the

parties or witnesses or of the case

would be different if the people

participating looked different or if

they belonged to a different

group?

 You must each reach your own

2020] MOVING THE NEEDLE 53

conclusions about this case indi-

vidually, but you should do so on-

ly after listening to and consider-

ing the opinions of the other ju-

rors, who may have different

backgrounds and perspectives

from yours.

Working together will help achieve a

fair result.

Federal – Ninth Circuit

After Jury Empaneled, Before

Opening Statements

Ninth Circuit Manual of

Modern Criminal Jury In-

structions, Duty of the Jury,

S3 Modern Federal Jury In-

structions-Criminal 1.1

(2019)

Jurors: You now are the jury in this

case, and I want to take a few minutes to

tell you something about your duties as

jurors and to give you some preliminary

instructions. At the end of the trial I will

give you more detailed [written] instruc-

tions that will control your deliberations.

When you deliberate, it will be your

duty to weigh and to evaluate all the evi-

dence received in the case and, in that pro-

cess, to decide the facts. To the facts as you

find them, you will apply the law as I give

it to you, whether you agree with the law or

not. You must decide the case solely on the

evidence and the law before you.

Perform these duties fairly and impar-

tially. You should not be influenced by any

person’s race, color, religious beliefs, na-

tional ancestry, sexual orientation, gender

identity, gender, or economic circumstanc-

es. Also, do not allow yourself to be influ-

enced by personal likes or dislikes, sympa-

thy, prejudice, fear, public opinion, or bias-

es, including unconscious biases. Uncon-

scious biases are stereotypes, attitudes, or

preferences that people may consciously

reject but may be expressed without con-

scious awareness, control, or intention. Like

conscious bias, unconscious bias can affect

how we evaluate information and make

decisions.

54 UA LITTLE ROCK LAW REVIEW [Vol. 43

United States District Court for the W. D. Washington

Before Jury Selection

Preliminary Instruction,

available at https://www.

wawd.uscourts.gov/sites/

wawd/files/CriminalJury

Instructions-ImplicitBias.pdf

It is important that you discharge your

duties without discrimination, meaning that

bias regarding the race, color, religious be-

liefs, national origin, sexual orientation,

gender identity, or gender of the defendant,

any witnesses, and the lawyers should play

no part in the exercise of your judgment

throughout the trial.

Accordingly, during this voir dire and

jury selection process, I [the lawyers] may

ask questions [or use demonstrative aids]

related to the issues of bias and unconscious

bias.

Before Opening Statements

(excerpted)

(this instruction is modified

from the Ninth Circuit’s)

Jurors: You now are the jury in this

case, and I want to take a few minutes to

tell you something about your duties as

jurors and to give you some preliminary

instructions. At the end of the trial I will

give you more detailed [written] instruc-

tions that will control your deliberations.

When you deliberate, it will be your duty to

weigh and to evaluate all the evidence re-

ceived in the case and, in that process, to

decide the facts. To the facts as you find

them, you will apply the law as I give it to

you, whether you agree with the law or not.

You must decide the case solely on the evi-

dence and the law before you and must not

be influenced by any personal likes or dis-

likes, opinions, prejudices, sympathy, or

biases, including unconscious bias. Uncon-

scious biases are stereotypes, attitudes, or

preferences that people may consciously

reject but may be expressed without con-

scious awareness, control, or intention. Like

conscious bias, unconscious bias, too, can

affect how we evaluate information and

make decisions.

Before Deliberation

I want to remind you about your duties

2020] MOVING THE NEEDLE 55

360. Retired Judge Bennett describes his work approach with potential jurors in Bennett,

Manifestations of Implicit Bias in the Courts, supra note 1.

as jurors. When you deliberate, it will be

your duty to weigh and evaluate all the evi-

dence received in the case and, in that pro-

cess, to decide the facts. To the facts as you

find them, you will apply the law as I give

it to you, whether you agree with the law or

not. You must decide the case solely on the

evidence and the law before you and must

not be influenced by any personal likes or

dislikes, opinions, prejudices, sympathy, or

biases, including unconscious bias. Uncon-

scious biases are stereotypes, attitudes, or

preferences that people may consciously

reject but may be expressed without con-

scious awareness, control, or intention. Like

conscious bias, unconscious bias, too, can

affect how we evaluate information and

make decisions.

Hon. Mark W. Bennett (now retired), United States District Court

for the N. D. Iowa

Before Jury Selection

Retired Judge Bennett spent consider-

able time with potential jurors describing

the presumption of the presumption of in-

nocence. During his explanation, he shakes

the hand of the criminal defendant, and

states the defendant is innocent “unless and

until the prosecution can establish guilt

beyond a reasonable doubt.” Judge Bennett

then offers the potential jurors a “free pass”

off the jury if any feel unable to give the

defendant the presumption of innocence.

360

After Jury Empaneled, Before

Opening Statements

Congratulations on your selection as a

juror! . . . You must decide during your

deliberations whether or not the prosecution

has proved the defendant’s guilt on the of-

fense charged beyond a reasonable doubt.

In making your decision, you are the sole

judges of the facts. You must not decide

56 UA LITTLE ROCK LAW REVIEW [Vol. 43

this case based on personal likes or dislikes,

generalizations, gut feelings, prejudices,

sympathies, stereotypes, or biases. The law

demands that you return a just verdict,

based solely on the evidence, your individ-

ual evaluation of that evidence, your reason

and common sense, and these instructions.

Additional Instruction

Do not decide the case based on “im-

plicit biases.” As we discussed during jury

selection, everyone, including me, has feel-

ings, assumptions, perceptions, fears, and

stereotypes, that is, “implicit biases,” that

we may not be aware of. These hidden

thoughts can impact what we see and hear,

how we remember what we see and hear,

and how we make important decisions. Be-

cause you are making very important deci-

sions in this case, I strongly encourage you

to evaluate the evidence carefully and to

resist jumping to conclusions based on per-

sonal likes or dislikes, generalizations, gut

feelings, prejudices, sympathies, stereo-

types, or biases. The law demands that you

return a just verdict, based solely on the

evidence, your individual evaluation of that

evidence, your reason and common sense,

and these instructions. Our system of justice

is counting on you to render a fair decision

based on the evidence, not on biases.

California

1 California Forms of Jury

Instruction 113 (2020)

Each one of us has biases about or cer-

tain perceptions or stereotypes of other

people. We may be aware of some of our

biases, though we may not share them with

others. We may not be fully aware of some

of our other biases.

Our biases often affect how we act, fa-

vorably or unfavorably, toward someone.

Bias can affect our thoughts, how we re-

member, what we see and hear, whom we

2020] MOVING THE NEEDLE 57

believe or disbelieve, and how we make

important decisions.

As jurors you are being asked to make

very important decisions in this case. You

must not let bias, prejudice, or public opin-

ion influence your decision. You must not

be biased in favor of or against any party or

witness because of his or her disability,

gender, race, religion, ethnicity, sexual ori-

entation, age, national origin, [or] socioeco-

nomic status[, or [insert any other imper-

missible form of bias]].

Your verdict must be based solely on

the evidence presented. You must carefully

evaluate the evidence and resist any urge to

reach a verdict that is influenced by bias for

or against any party or witness.

Hawai’i

After Jury Empaneled, Before

Opening Statements

HA.CR. JI INSTRUCTION

NO. 1.01

(excerpted)

Each one of us has biases about or cer-

tain perceptions or stereotypes of other

people. We may be aware of some of our

biases, though we may not share them with

others. We may not be fully aware of some

of our other biases.

Our biases often affect how we act, fa-

vorably or unfavorably, toward someone.

Bias can affect our thoughts, what we see,

hear and remember, whom we believe or

disbelieve, and how we make important

decisions.

As jurors you are being asked to make

very important decisions in this case. You

must not let bias, prejudice, or public opin-

ion influence your decision. You must not

be biased in favor of or against any party or

witness because of the person’s actual or

perceived race, color, ancestry, national

origin, ethnicity, sex, gender, gender identi-

ty, sexual orientation, marital status, age,

disability, religion, socioeconomic status, or

political affiliation.

58 UA LITTLE ROCK LAW REVIEW [Vol. 43

Massachusetts

Before Jury Selection

CR Model Jur Instructions

for use in the Dis Cts - Mass

Instruction 1.100

(excerpted)

At the outset, I instruct you that all

parties stand as equals before the bar of

justice. All parties are entitled to a fair and

impartial jury, that is, jurors who will: (1)

fairly evaluate the evidence; (2) follow the

law as instructed; and (3) render a fair and

just verdict based solely on the evidence

presented at this trial.

Jurors, of course, are expected to bring

their own life experiences, thoughts, opin-

ions, beliefs, and common sense to this

court and the deliberation room. Everyone,

including me, makes assumptions and

forms opinions arising from our own per-

sonal backgrounds and experiences. These

biases or assumptions may have to do with

any number of things, including an individ-

ual’s race, color, nationality, ethnicity, age,

disability, socioeconomic status, religious

beliefs, gender, or sexual orientation. I in-

struct you that a verdict must not be based

on any such bias, including conscious or

subconscious bias.

Bias, whether it is conscious or sub-

conscious, can affect how we evaluate in-

formation and make decisions. It can im-

pact what we see and hear, how we remem-

ber what we see and hear, how we make

important decisions, and may even cause us

to make generalizations or to pre-judge.

While each of you brings your unique

life experience with you to court today, as

jurors, you must be alert to recognize

whether any potential bias might impact

your ability to fairly and impartially evalu-

ate the evidence in this case, follow my

instructions, and render a fair and just ver-

dict that is based solely on the evidence

presented in this case.

After Jury Empaneled, Before

Jury charge. After the closing arguments, I

2020] MOVING THE NEEDLE 59

Opening Statements

CR Model Jur Instructions

for use in the Dis Cts - Mass

Instruction 1.120

(excerpted)

will instruct you in detail on the law that

you must apply during your deliberations.

Jury’s function. Your function as the

jury is to determine what evidence to be-

lieve, how important any evidence is that

you do believe, and what conclusions all the

believable evidence leads you to. You are

the sole and exclusive judges of the facts,

and in determining what those facts are, you

should draw on your own common-sense

and life experience. Our system of justice

requires you to render a fair decision based

on the evidence, not on biases. In evaluat-

ing the evidence and determining the facts,

keep in mind that everyone, myself includ-

ed, makes assumptions and forms opinions

based in part upon likes or dislikes, opin-

ions, stereotypes, perceptions, and prejudic-

es arising from our own personal back-

grounds and experiences of which we may

not be aware. These assumptions and opin-

ions can impact what we see and hear, how

we remember what we see and hear, and

may cause us to draw generalizations or to

pre-judge. Because you are making very

important decisions in this case, you must

be alert to recognize any potential biases

that might affect your view of the evidence

in this case. You must not allow bias – con-

scious or subconscious – to interfere with

your ability to fairly evaluate the evidence,

apply the law as I instruct you, and render a

fair and impartial verdict based on the evi-

dence presented at

this trial.

Pennsylvania

After Jury Empaneled, Before

Trial

Pa. SSJI (Crim) 2.02

Each one of us has biases about or cer-

tain perceptions or stereotypes of other

people. We may be aware of some of our

biases, though we may not share them with

others. We may not be fully aware of some

60 UA LITTLE ROCK LAW REVIEW [Vol. 43

of our other biases.

Our biases often affect how we act, fa-

vorably or unfavorably, toward someone.

Bias can affect our thoughts, how we re-

member, what we see and hear, whom we

believe or disbelieve, and how we make

important decisions.

As jurors you are being asked to make

very important decisions in this case. You

must not let bias, prejudice, or public opin-

ion influence your decision. You must not

be biased in favor of or against any party or

witness because of his or her disability,

gender, race, religion, ethnicity, sexual ori-

entation, age, national origin, [or] socioec-

onomic status[, or [any other impermissible

form of bias]].

Your verdict must be based solely on

the evidence presented. You must carefully

evaluate the evidence and resist any urge to

reach a verdict that is influenced by bias for

or against any party or witness.

Washington

Before Jury Selection

Advance Oral Instruction—

Beginning of Proceedings, 11

Wash. Prac., Pattern Jury

Instr. Crim. WPIC 1.01 (4th

Ed)

It is important that you discharge your

duties without discrimination, meaning that

bias regarding the race, color, religious be-

liefs, national origin, sexual orientation,

gender, or disability of any party, any wit-

nesses, and the lawyers should play no part

in the exercise of your judgment throughout

the trial. These are called “conscious bias-

es”—and, when answering questions, it is

important, even if uncomfortable for you, to

share these views with the lawyers.

However, there is another more subtle

tendency at work that we must all be aware

of. This part of human nature is understand-

able but must play no role in your service as

jurors. In our daily lives, there are many

issues that require us to make quick deci-

sions and then move on. In making these

2020] MOVING THE NEEDLE 61

daily decisions, we may well rely upon

generalities, even what might be called bi-

ases or prejudices. That may be appropriate

as a coping mechanism in our busy daily

lives but bias and prejudice can play no part

in any decisions you might make as a juror.

Your decisions as jurors must be based

solely upon an open-minded, fair considera-

tion of the evidence that comes before you

during trial.

WPIC1.02Conclusion of Tri-

al—Introductory Instruction,

11 Wash. Prac., Pattern Jury

Instr. Crim. WPIC 1.02 (4th

Ed)

You are the sole judges of the credibil-

ity of each witness. You are also the sole

judges of the value or weight to be given to

the testimony of each witness. In assessing

credibility, you must avoid bias, conscious

or unconscious, including bias based on

religion, ethnicity, race, sexual orientation,

gender or disability.

Race-Switching Instruction, Professor Cynthia Lee

It is natural to make assumptions about

the parties and witnesses based on stereo-

types. Stereotypes constitute well-learned

sets of associations or expectations correlat-

ing particular traits with members of a par-

ticular social group. You should try not to

make assumptions about the parties and

witnesses based on their membership in a

particular racial group. If you are unsure

about whether you have made any unfair

assessments based on racial stereotypes,

you may engage in a race-switching exer-

cise to test whether stereotypes have col-

ored your evaluation of the case before you.

Race-switching involves imagining the

same events, the same circumstances, the

same people, but switching the races of the

parties. For example, if the defendant is

White and the victim is Latino, you would

imagine a Latino defendant and a White

victim. If your evaluation of the case before

62 UA LITTLE ROCK LAW REVIEW [Vol. 43

Example Criminal Jury Instructions Regarding Unconscious Racial Bias

you is different after engaging in race-

switching, this suggests a subconscious

reliance on stereotypes. You may then wish

to reevaluate the case from a neutral, unbi-

ased perspective.