In most of my trials a young African American male is led out to the defense bench by courthouse guards. Sometimes he is handcuffed and sometimes he is clad in a faded orange jumpsuit. But he always appears in basic black.
Social cognition literatures call the jury’s first impression of a man with black skin in custody a prime or cue. The cue of his black skin involuntarily brings to life in juror’s minds cultural associations of black men with violence and criminality.
Susan Fiske says “The racial schema of black people is the belief blacks are dirty and physically skilled (e.g., athletic)…as well as militant, violent, criminal, and hostile.”
| Views of a representative sample of the US population. |
Blacks are seen as more violent , lazier, and less intelligent than whites
General Social Survey 2000. National Opinion Research Center
If the defendant is also claimed to be a gang member in the prosecution’s opening statement, that association is unlikely to fade away. Mock jury studies find that the mere association of a defendant with gangs makes it more likely he will be convicted.
Black √ Male √ In custody √ Gang Member √ — four strikes are more than enough. From the first moment of court it becomes apparent to the average juror that this kind of defendant is guilty until proven innocent. Eisen calls this “reverse jury nullification” or when the gang issue influences a jury to convict despite evidence.
|Even mention of "gang" makes a guilty verdict more likely|
In Claude Steele’s classic, Whistling Vivaldi, he describes his experience jogging as a black man in liberal Hyde Park, home of the University of Chicago. New to the area and decked out in what might look like ghetto attire of a sweat shirt and pants, he fit the dangerous black male stereotype. He got “looks” and people went to the other side of the street. How could he signal to his fearful white neighbors that he was one of us and not one of them? He solved the problem by whistling Vivaldi’s Four Seasons as he jogged, cueing his sophisticated watchers to his having a European classical background that would be unlikely to be in the repertoire of a street thug.
It’s not so easy to whistle Vivaldi in a courtroom.
Once a jury believes the defendant is likely guilty, confirmation bias does the rest. As Michael Shermer says “research consistently shows that once people have established what they think is the cause of an event they just observed—(in other words, they have formed a link between A and B)—they will then continue to gather information to support that causal link over other possibilities—if they can even think of alternatives once the first causal link is established, which they usually cannot.”
And sadly, its not just a matter of culture. fMRI scans indicate that the amygdala is automatically activated whenever an out group is present. Link that activation of evolutionary “danger” of the presence of outsiders to stereotypes of black men and gang members and the courtroom becomes an arena where the defense is put in a position of having to prove a black gang-related defendant is not guilty.
|The fight or flight center of the brain|
The power of even unconscious primes has been demonstrated through much research. Steele reports female students who were shown subliminal images of professional, competent women before a math test performed significantly better than those who were similarly shown images of women in traditional gender roles. By the way the girls primed by professional images did even better than the boys on the test.
We don’t have many studies of what happens during juror deliberation, but Fleury-Steiner’s research on death penalty juries reveals jurors routinely dehumanized a defendant, in interviews calling one a “ beast…sociopath…evil person.” Jurors, Fleury-Steiner found, saw themselves as “us” and the defendant as “them,” more able to condemn to death a defendant because he was defined as an out group, particularly a racial out group: “I saw the defendant is a very typical product of the lower socioeconomic black group who grew up with no values, no ideals, no authority, no morals, no leadership, and this is come down from generation to generation….. he wasn't a white kid.” Sentence: death.
These findings are a warning to defense attorneys who think mitigation means to paint a picture of the defendant as an abused child and the product of an unforgiving environment. This kind of testimony can evoke sympathy, but Fleury-Steiner found that it can also reinforce stereotypes and the “us vs them” dichotomy, making the death penalty or very long sentences more likely.
A defendant is convicted or given a long sentence not so much by the evidence itself but by how the evidence is interpreted or framed by juries and judges. That frame is guided by non rational processes that include the racial and “gang” cues that establish likely guilt in a jury’s mind. My job as an expert witness is not just about using “research not stereotypes” but counteracting dehumanizing cues by explaining the defendant’s actions in terms a jury may condemn but still understand. In other words, my job is to “whistle Vivaldi” to the jury so they can look at the defendant as one of us, not one of them.
Yeah. That’s hard.
Eisen, Mitchell L., Brenna Dotson, and Alma Olaguez 2014. "Practitioner: Exploring the prejudicial effect of gang evidence: under what conditions will jurors ignore reasonable doubt." American University Washington College of Law Review. Brief 41.
Fleury-Steiner, Benjamin. 2004. Jurors' stories of death : how America's death penalty invests in inequality. Ann Arbor: University of Michigan Press.
Gilovich, Thomas. 1991. How We Know it isn't So: The Fallibility of Reason in Everyday Life. New York: The Free Press.
Shermer, Michael. 2011. The Believing Brain: From Ghosts and Gods to Politics and Conspiracies---How We Construct Beliefs and Reinforce Them as Truths. New York: Henry Holt & Company.
Steele, Claude. 2010. Whistling Vivaldi : and other clues to how stereotypes affect us. New York: W.W. Norton & Company.