By Dr. Ken Broda-Bahm:

Only recently, we had a 24-7 news bubble on the coronavirus pandemic, and it didn’t seem like anything could break it. Now, however, our television screens are filled with scenes of protest and violent confrontation. The national outrage following the killing of George Floyd by a police officer in Minneapolis on May 25th, has boiled over into demonstrations, curfews, and conflicts in most major American cities. The protests against police violence, along with what many would call an over-militarized response, has yielded continuing examples of exactly what they’re protesting. All in all, it is another reminder of America’s unfinished business on race, and the reality that the systems of justice that many of us work within, are not enjoyed equally by all.

Recent polling is showing that a clear majority supports the protests this time around. A Reuters/Ipsos poll indicates that fully 64 percent of the public sympathizes with those who are out protesting, and that contrasts with the 59 percent who said that protestors were going too far in 2014 polling, regarding the police shooting of Michael Brown in Ferguson, Missouri. To some extent, that may reflect the unambiguous nature of the video in George Floyd’s case, but it may also indicate that there is a sea change in attitudes taking place, and “Black Lives Matter” is moving from being a position held by activists, to a general belief in the population. And as the majority comes around to the view that our system of laws and procedure is not neutral, but is instead infected with systemic racism, then that is going to change the popular perceptions of legitimacy that jurors carry into courtrooms around the country. In this post, I will take a look at recent attitudes on the protests and what it means for litigators.

This Time, Broad Support for the Protests

In addition to the Reuters poll, a survey by Morning Consult adds to the picture. The poll, conducted just days ago in the midst of what turned out to be a violent weekend, still showed broad support, with 54 percent of Americans supporting the protest (30 percent “strongly,” and 24 percent “somewhat”), with an additional 17 percent being “unsure.” Fully 61 percent agreed with the statement that “white people do not recognize the real advantages they have.” Comparing the problems of “Police violence against the public” and “violence against the police,” a majority feels the former is a bigger problem than the latter: 55 percent to 30 percent respectively.

But It is Still Divided 

Of course, in today’s country, these views are not distributed evenly across the population. All of us can look at the same videos, but our conclusions about the protests will be filtered through our own life experiences, and our own attitudes. Based on the Morning Consult polling, the two factors that predict that division are, predictably, political leaning and race. Among Democrats, 69 percent support the protests, but among Republicans, that level of support shrinks to just 39 percent. Among white adults, about half (49 percent) support the protests, but among black adults, more than three-quarters (77 percent) support the protests.

And it is not just the race of the respondents that matters, it is also the race of the protestors. When given the statement “When black Americans speak up and protest injustice in the U.S., it always makes the country better,” 46 percent agreed. But if the statement was to “When Americans speak up…” the support increased to 54 percent. Of course, that response illustrates some of the racism that protestors are fighting against, but in practical terms, also shows the importance of the diversity of protestors: It matters that it is Americans generally, and not just black Americans, protesting the violence.

And It Matters to Litigators 

For litigators, the issue and its attending attitudes provide a reminder that we are still addressing a mixed audience. But it is important that a majority is coming around to the idea that systemic racism is a daily reality and not a relic of the past. That racism is often not only felt most acutely in law enforcement roles and in the criminal justice system, it also echoes within the larger justice system, including the spheres of civil litigation. For example, the  documented racial bias in civil damage awards shows that disparate treatment is not confined to arrests, trials, and sentencing.

More broadly, the perception of a legal system that is antagonistic to some of its citizens can’t help but influence how individuals understand their roles when they’re called upon to participate. Jury selection, for example, has a troubled history of disproportionately excluding African Americans based on their race. That was never a good idea, and it is an even worse idea now that the beliefs about the system that served to underlie those presumptuous strikes are now becoming majority opinions. Litigators need to operate as though the perception of an unfair system is not just the radical opinion of a few, as much as it is the dominant perception. That doesn’t necessarily mean that our courts have lost credibility, or that individual jurors will slant their verdicts to respond to the presumed biases of the system. It does mean that jurors are less likely to assume, on face that the legal system generally and the jury instructions in particular, are just and legitimate simply because they are legal. In some ways, legal persuaders should assume that jurors are asking the same questions that protestors are asking: How is our role within the system working to make things better?


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Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current case, contact me now.


Other Posts on Race in America: 


Image credit: Photograph by Jeffery Tremmel of demonstrations in Pensacola, Florida. Used with permission.