Thursday, December 27, 2012
Bidish Sarma (University of Califonia, Berkeley School of Law) has posted Challenges and Opportunities in Bringing the Lessons of Cultural Competence to Bear on Capital Jury Selection (University of Memphis Law Review, Vol. 42, No. 907, 2012) on SSRN. Here is the abstract:
The growing call to teach lawyers, investigators, mitigation specialists, and law students the skills required to provide culturally competent representation should be welcomed by all. A culturally insensitive criminal justice system has tolerated unfair processes and delivered unjust outcomes for too long. While the push for cultural competence has appropriately prioritized the attorney client relationship (reaching defense teams as a first step), at the present time less attention has been given to how to influence the views of other key actors, including prosecutors, legislators, judges, and jurors. This article specifically considers jurors in death penalty cases and contemplates how defense teams can utilize the lessons of cultural competence in questioning and selecting the jurors who will decide whether their client lives or dies.
In setting out how a cultural competency lens could benefit defense teams, this Article also identifies significant legal and practical obstacles that may prevent the implementation of an ideal selection process. This article represents only an initial attempt to think through the implications of cultural competency and jury selection. Although this is in some ways an embryonic idea, there already exists a significant body of empirical research assessing how capital juries make their sentencing decisions. That research has provided invaluable insight, and some of its most important findings support the idea that lessons of cultural competence can make a meaningful difference in capital jury selection. This article draws on available research, suggests avenues for future research, and encourages a subtle but potentially significant shift in how capital defense teams approach jury selection.
This article contains five parts. To set the backdrop for the claim that cultural competency should influence the defense's approach to capital jury selection, Part II explores why culture is critical in death penalty cases. Part III then describes and identifies as a serious concern the vast cultural gap between death penalty defendants and the jurors typically selected to serve on capital juries. By looking at the effects that death-qualification and peremptory challenges have upon the jury's composition and considering the jury selection process's psychological effects on selected jurors, this Part recognizes that the cultural gap is largely inherent to the system. Part IV outlines thoughts on how lawyers can draw upon key lessons from cultural competency and implicit bias research to both select culturally competent jurors and make selected jurors more culturally competent. Part V concludes.