Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

How do you spot a racist? Or, to be more on point, in a legal case about racial discrimination, or another case where racial biases would matter to the assessment of the case, the parties, or the witnesses, how do you recognize potential racial animus in order to inform your cause challenge or peremptory strike? Until recently, the answer was that you had to be indirect. What the psychologists call a “social desirability bias” would mask overt expressions of racism, particularly in formal settings like a courtroom, and cause people to deny a bias that is actually there beneath the surface. With that factor tending to install a civilized veneer and keep expressions of racism at bay, what we were left to examine was the so-called ‘dog-whistle’ expressions, meaning something that is heard and understood only by its source and subgroup audience. For example, the person who talks about dangerous immigrants or undeserving welfare recipients knows their targets receive a racial message loud and clear without race even being mentioned.

At least that’s the way it has worked. New research is now suggesting that the coded and subtle appeal is becoming less necessary. Social scientists from the University of Michigan and the University of Texas (Valentino, Neuner, & Vandenbroek, 2018) report on four studies that appear to overturn the standard racial priming model, which has held that implicit racial appeals can be rewarded while explicit expressions are punished. Instead, the dog whistle seems to be less needed as an increasing proportion of the public has become more accepting of explicit expressions of racism. Yes, depressingly, that is what the research shows. In this post, I will take a look and consider some implications for jury selection.

The Research: A Megaphone Rather than a Dog  Whistle

“The effective distinction between explicit and implicit racial rhetoric has declined in recent years,” the researchers note. The team looked at research in the 1990’s indicating that subtle racial appeals would enhance the power of those appeals. In the last decade, however, replications of that research have not been successful. To investigate the reasons for that, they conducted four studies testing the effects of implicit or explicit racial statements, and found that even explicitly racist statements about African Americans did not reduce the power of racial attitudes on evaluations of policies and politicians. In other words, there was no penalty for being explicit, and no reward for using the “dog whistle” of an implicit racist appeal.

These results, they argue, should be read in the context of contemporary examples of more explicit racial appeals in political discourse that “seem to reverse a historical pattern whereby much more subtle, coded rhetoric had become the dominant form of communication about race in the decades following the Civil Rights Movement.” That reversal, they believe, is coming about due to a reduced perception of possible sanctions for that expression, also due to greater feelings of belonging, or ‘entitativity’ — being part of a larger group.

As a result, the success of political messages that are encoded in racial terms no longer rests on whether those messages are covert. “Many citizens recognize racially hostile content in political communications,” they note, “but are no longer angered or disturbed by it.” Of course, the elephant in the room is that this is part of a perceived “Trump effect,” where it has become less risky for politicians to explicitly signal their opinions on race, along with anecdotal evidence that this disinhibition is being adapted by the public at large.  As a process that feeds on itself, we can expect that the more frequent the expressions of racial bias, the more comfortable it will be for people to share instead of hide those biases.

The Implications: Racism in the Jury Box

The potential for increasingly overt racism is most obviously relevant when the case focuses on race or racial discrimination. The members of the jury may say they will follow the law, but their attitudes about the extent, severity, and harms of racism will serve as an inevitable filter to how they view the case. If, as research indicates, acceptability of overt racism is increasing, then the standard for what is actionable in court might be edging higher, and the proportion of people willing to believe that discrimination is less of a harm, or even justified, might be increasing as well.

The researchers note one other trend, which is that racial disadvantage is not seen as something that just attaches to minorities. “Many whites now view themselves as an embattled and even disadvantaged group, and this has led to both strong ingroup identity and a greater tolerance for expressions of hostility toward outgroups.”

Even when a case isn’t focused on a claim that expressly involves it, race is a backdrop for many other controversies. When jurors consider personal responsibility, credibility, or reasonable care, or when they place a value on a life, attitudes about race might matter as well.

The One Bright Spot: Greater Disclosure

It is not a great time for silver linings, and certainly if society is coarsening and becoming more accepting of racial bias, that is no cause to celebrate. However, looking at the unique setting of voir dire and jury selection, there is one clear advantage in the trend toward more explicit expressions of bias. The greater willingness to express racial bias measured in the research means we should expect racism to be easier to expose in voir dire. If people are more willing to express views that they might have hidden or denied in earlier years, then strategic questioning designed to open up the panel should be more effective in setting the stage for a cause challenge or, failing that, in providing a rationale for a peremptory strike.

However, and on a personal note, this is one of those times when I read the recent social science research and think, “Really…this is where we are?” Martin Luther King famously said that the “Arc of history is long, but it bends toward justice.” Obviously, there are some zig-zags in that arc, but let’s hope it is still bending in the right direction.

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Other Posts on Racism: 

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Valentino, N. A., Neuner, F. G., & Vandenbroek, L. M. (2018). The Changing Norms of Racial Political Rhetoric and the End of Racial Priming. The Journal of Politics, 80(3), 000-000.

Thanks to Persuasion Strategies Research Analyst, Katerina Oberdieck for pointing me to this research.

Image credit: 123rf.com, used under license