Race in the Jury Box: Affirmative Action in Jury Selection

Appendix B

233 Appendix B METHODOLOGICAL STRATEGIES ON HOW TO DETERMINE AND MEASURE RACE IN COURTROOMS W e have spent considerable space examining race and racial identity to set the framework for affirmative action reforms. Given the amorphous , fluid, and sometimes unsettling nature of race and racial identity , a critical analysis of race and racial identity constitutes the essential step to build an effective affirmative action program for jury selection in order to best empanel racially diverse tribunals in criminal trials. Based on the discussion and examination of racial identity, we propose the following strategies for measuring race. First, in identifying one’s race and racial identity, we should rely on the following two factors: (1) component racial identity, and (2) ancestral race. Component racial identity is similar to the elicitation used in the pre-2000 census, in which the respondent is asked to provide one and only one racial identity. The second factor measures one’s racial, ancestral history, in which he or she is asked to check more than one ancestral background. This duality of racial questions is crucial because the race inquiry used in the year 2000 census only asks the respondent to check as many races as possible, without clearly and explicitly specifying that the identified race should reflect their actual racial identity, desired race, ancestral history, or something else. As our analysis of racial identity and ancestry has indicated in chapter 2, a large proportion of individuals believe that they have more than one ancestral race. Yet, we also found that component racial identity and reported ancestral race are the two most important determinants and predictors of opinions and attitudes towards race-related issues and other matters, including affirmative action in jury selection and jurors’ opinions on imposing the death penalty. We believe that these two measurements are superior to the 2000 census question as they effectively control for historical artifacts in measuring race— for which racial identity is designed to provide the most current identity of one’s race, while ancestral race provides the perceived and assumed genealogical history of one’s race. Whether or not the identified racial ancestry truly reflects the genealogical backgrounds of one’s race is neither crucial nor important, because 234 RACE IN THE JURY BOX today’s racial categories are not the same as racial categories of the past, and there is no biologically measurable strategy to trace and determine one’s racial background. Nevertheless, these two measurements of race (i.e., self-identity and ancestry) rely on the identical racial classification scheme as the most recent census question, making the racial data compatible with the most recent racial framework used by the federal government. More elaborate designation of racial groups may also be used in actual criminal trials in identifying potential jurors, such as Chicano, Chicana, Mexicano, and Mexicana. But it is equally important to ensure that some of the affirmative action programs in jury selection rely on the same census category in order to secure crucial information about the desired number of jury seats to be allocated for certain racial groups. When the proportionate jury model is used to create racially diverse juries, for instance, racial distribution of jury seats may reflect the racial composition of the community. While individuals who identify themselves as Chicano may not feel that Hispanic is their racial or ethnic identity, the population composition is still available from the census data on the basis of the Hispanic populations or Mexican subpopulations in the jurisdiction. In the final measurement of racial identity and ancestral race, reliance must be placed on self-identification and self-declaration by prospective jurors, not third-party observations of their race. As our analysis indicated, “otheridenti fied race” may not always match the self-identified race. Self-identification of race is also compatible with that of the census procedure. There are also procedural requirements that must be established in the courtroom so that the measurement of race and racial identity is collected and analyzed. Thus, it may become crucial for the judge to allow attorneys to distribute a short survey questionnaire prior to jury selection. As the distribution of questionnaires is often granted and routinely used in felony cases in most jurisdictions , the collection of racial and other relevant case-specific information by potential jurors should not pose major problems. ...