Screening for Anti-LGBTQ+ Bias in Jury Trials
Self-Reflection, Objective Analysis and Voir Dire Planning Should be Part of a Lawyer’s Proactive Approach
By Rachel E. Holt
This is an edited excerpt from Holt’s article that appears in the New Jersey Lawyer August 2020 issue, which examines sexual orientation, gender identity and the law. To read the latest issue, log in here.
Trial lawyers often consider themselves master strategists. They calculate, organize and plan for trial, sometimes months in advance. All the while, the goal is to tip the odds as far as they can in their client’s favor for a good outcome. Leading up to trial, trial lawyers agonize over the minute details of their case and its presentation, while simultaneously trying to predict and prepare for the tactics of their opponents. During trial, trial lawyers strive to control the courtroom and execute their trial strategies as planned. In many ways, trial is like a game of chess – protect your client while checkmating the opponent.
To succeed in chess or at trial, a trial lawyer must prepare for every possible outcome, have a contingency plan for every contingency plan, and above all else, demonstrate keen situational awareness. Unfortunately, despite a trial lawyer’s best efforts, one aspect of trial work that cannot be overcome solely through preparation and practice is the presence and impact of bias during trial.
Once a trial lawyer recognizes what potential biases may exist against themselves or their clients, it is time to prepare a plan to uncover the existence of those biases in potential jurors.
Explicit anti-LGBTQ+ bias is easily recognizable in a trial setting and, thus, easier to address. For instance, a juror with explicit anti-LGBTQ+ bias would outwardly state that they do not agree with those who identify as members of the LGBTQ+ community and that they cannot be fair and impartial in their deliberations in a trial with an LGBTQ+ client or lawyer.
Unfortunately, anti-LGBTQ+ bias is not always so easily recognizable. For instance, a prospective juror with implicit anti-LGBTQ+ bias would not state that they disagree with those who identify as part of the LGBTQ+ community. In fact, a juror with implicit anti-LGBTQ+ bias might consciously think that they are accepting and approving of LGBTQ+ folk. However, as a LGBTQ+ recognizable client testifies about the injures they have suffered at the hands of a defendant, or as a LGBTQ+ recognizable attorney gives her opening statement, that juror will be unconsciously viewing and judging that individual through the prejudiced lens of their bias.
Uncovering implicit anti-LGBTQ+ bias is a crucial aspect of jury selection if a client or attorney is a member of the LGBTQ+ community. The court rules of New Jersey provide very little opportunity to recognize and address implicit biases in prospective jurors. In New Jersey, voir dire is extremely limited. Unlike some states, trial lawyers in New Jersey cannot interview prospective jurors or spend an extensive amount of time trying to analyze their motivations and biases. However, there are ways to uncover anti-LGBTQ+ bias even with limited voir dire.
New Jersey court rules permit attorneys to submit proposed voir dire questions to the judge prior to the start of jury selection. If a trial lawyer recognizes the potential for anti-LGBTQ+ bias to impact the trial, they should submit questions to the judge that are aimed at identifying which prospective jurors possess either explicit or implicit anti-LGBTQ+ bias.
While trial lawyers may request the court explicitly ask whether a potential juror possesses any known biases against members of the LGBTQ+ community, research suggests that indirect questions relating to topics that tangentially relate to LGBTQ+ issues are best to uncover anti-LGBTQ+ bias in potential jurors. For example, questions relating to how frequently a potential juror associates with LGBTQ+ identifying people, their attitudes toward LGBTQ+ rights issues, and their political ideology might help a trial lawyer discover the existence of explicit or implicit anti-LGBTQ+ bias, so long as the proposed questions are not violative of New Jersey ethical rules.