Challenge for Cause: The Jury is still out

On May 17, 2015, Mr. Tyrone Williams, a black 25-year-old male, responded to a Kijiji ad for the sale of a privately-owned car. He met the owner, Mr. Johnson, a 30-year-old white male at home, and test drove the car. Mr. Williams expressed an interest in buying the car for his girlfriend and said he would be in touch. Later that day, he called the owner to tell him he had decided to buy the car and would pay for it by writing the owner a cheque for the agreed upon price. Mr. Williams showed up three days later, at about 7:45 in the evening, and said he would like to take the car for another test drive. As the two men returned from the test drive, Mr. Williams drew a knife and stabbed the owner of the car twice in the neck and above his wrists. The owner managed to get out of the car without further injury as Mr. Williams drove off.

As you read this case study, could you picture the case unfolding before your eyes? What did Mr. Williams look like? Did you imagine him to be a big violent man with dark skin? What did Mr. Johnson, the owner of the car, look like? An innocent, helpless white guy?

Research tells us that there are two types of biases that shape our actions and attitudes: explicit and implicit bias. These biases influence how we classify situations given the cultural scripts, like in the excerpt above. They say a lot about our own assumptions and what we are taught on a subconscious level.

Explicit bias refers to the attitudes and beliefs that we have about a person or a group of people on a conscious level. Since these biases are conscious, they can be self-censored and restrained. However, implicit biases are ingrained and subconscious. They are stereotypical associations that are so subtle that people who hold them may not even be aware them. Have you ever been in a situation where you were walking, and you saw a black or white van following you? What did you do and think? I once saw a black van following me, and intuitively, I ran as fast as I could. At that moment, I feared that I would be thrown into the van and driven away by strange men. The implicit biases that we hold are often widely held. They are programmed subconsciously into our cognition by our environment, genetics (like flight or fight responses), and the media.

Brown people always smell like ____? Asian people are _______? A gas station was robbed yesterday, armed robbery. The robber, a _____ male was caught.

Were your answers curry, smart, and black, or something different?

That is your implicit bias at work. Implicit biases are common and not as problematic in your everyday life; however, when it comes to justice and jury verdicts, implicit biases are issues of great of concern. In fact, they are a source of racial disparities in the criminal justice system. African Canadians represent only 3% of the Ontario population but represent 15% of its prison population. They are also more likely to receive longer and harsher prison sentences than their white counterparts.

Canadian Courts are aware of the implicit biases that we hold, and following the ruling from R v. Parks (1997), courts are now allowed to ask a race-based challenge question to its jurors in cases where the defendant is either black or of a racial minority.

Canadian courts implemented a procedure known as the “challenge for cause” procedure, and its primary purpose is to make you aware of your implicit biases.This procedure was intended to ensure that everyone receives a fair trial, no matter the colour of their skin. The procedure works by asking a potential juror a single race-based question to which they answer yes or no. Depending on their answer, the two triers that are selected, either accept or reject the juror into the jury pool. This happens during the jury selection process.

However, many scholars have been wondering if this procedure can actually protect against potential racial biases.

I decided to test out this procedure. I conducted a mock trial where twenty-four community members were asked to participate in the jury selection process; I read them the excerpt from beginning involving Tyrone Williams.

My study consisted of three parts, where the most important part was the jury selection process. There were a total of three experiments that I conducted over a period of two days. Each experiment consisted of six participants.

The first part of the study required the participants to take two tests: a ‘symbolic racism’ test and a ‘motivation to control prejudices reactions’ test. These tests were used to assess whether the participants were prejudiced towards African Canadians. The participants scored either low or high on both of the tests. The ideal score we would want for a juror would be low on the racism test and high on the motivations to control prejudices reactions test.

The second part of the study was the jury selection process. Each participant was assigned a juror number at the beginning of the study and was referred to by their juror numbers throughout the study. During the jury selection process, four jurors were asked to step outside and not interact with each other.  Two random jurors were picked to stay inside and were sworn in as “triers.” Triers are individuals who are required to either accept or reject a potential juror based on their answer to the race-based challenge question that is asked of them.

A potential juror was randomly picked and called inside. They were sworn in and asked the race-based challenge question. Based on their answer and their body language, the triers either rejected or accepted them as jurors. After the potential juror had answered the question, they were then sworn in as a trier, and one of the triers was asked to step outside. This process continued until all six participants had a chance to be a trier twice, and answer the race-based challenge question.

Out of the twenty-four participants, eight participants were rejected. Four participants answered yes to the question, and all four were rejected by at least one of the triers that had tried them. The remaining four that were rejected had answered no to the question. However, after comparing their test scores, I found that these participants had scored high on the racism test and low on the motivations to control prejudices reactions test, which influenced their verdict.

The last part of the study required the participants to read the case report on Mr. Tyrone Williams. Based on the facts of the case report, the participants were required to assign a prison sentence ranging from 1 to 10 years and also were required to rate the defendant and victim based on their level of responsibility for the crime.

The prison sentences varied from 1 to 10 years.  Therefore, there was not much to go off of from the prison sentences in terms of racial bias. However, all the participants that scored low on the racism test were less likely to assign the blame on the defendant; whereas the participants who scored high on the racism test and low on the motivations to control prejudices reactions test found the defendant to be solely responsible for the crime. An important finding was that the participants who did find the defendant to be responsible were more likely to assign a slightly longer prison sentence. More importantly, they were also the ones who were rejected by the triers; thus, their verdicts would not have counted.

I wanted to observe whether the challenge for cause procedure works. It turns out that it does. The participants that were rejected were the ones who ended up giving harsher verdicts compared to the participants who were accepted to sit on the jury panel.

Even though we hold implicit biases, we are able to compensate for those biases when we are made aware them. Our justice system may not be perfect, in fact, it is far from perfect, but the challenge for cause procedure can vet out implicit biases and ensure that everyone receives a fair trial.

Disha Patel is a fourth-year student at the University of Toronto-Mississauga where she is completing a B.A. with a specialization in Criminology.