The Ethnic Dimension in Jury Selection: UK and USA Approaches
| Published date | 01 December 2003 |
| Date | 01 December 2003 |
| DOI | 10.1350/jcla.67.6.525.19433 |
| Author | Paul Robertshaw |
| Subject Matter | Article |
The Ethnic Dimension in Jury
Selection: UK and USA
Approaches
Paul Robertshaw*
Abstract This article commences with a discussion of recent research on
perceptions of treatment of ethnic minority defendants in England, in-
cluding jury trial. In this context a recent Court of Appeal decision affirms
its previous decision that judges may not interfere in jury selection to
ensure a fair ethnic or other balance in a jury; European Convention
jurisprudence was not relevant to the particular issue before the court. At
the same time the US Supreme Court made a rare visit to the problem of
ethnic balance in jury selection. The majority held that the prosecution
measures during the voir dire did discriminate against the defendant. The
dissident justice’s opinion is also analysed. The article then uses tests for
statistical significance on the measures in issue considered by both major-
ity and dissident. It is suggested that such tests would be helpful to courts
generally in such cases. In conclusion a ‘guaranteee’ for fair ethnic repre-
sentation in British juries is proposed.
Current decisions of appellate jurisdictions in the UK and USA concern
the role of judges when a verdict is challenged because of perceived
unfairness in the selection of a jury, specifically its racial composition.
After discussing these decisions, a third way or via media will be sug-
gested for dealing with the problem.
In the UK recent research commissioned by the Lord Chancellor’s
Department is relevant.1This study covered 356 defendants, comprising
75 Asians, 171 Blacks and 110 Whites; all of the White defendants had
been convicted, as had 92 per cent of the Asian and Black defendants.
The study’s first relevant question was on defendants’ un/happiness
with the jury.2The responses were almost all positive; the minority of
respondents expressing dissatisfaction—Asians, 4 per cent, Blacks 4 per
cent and Whites 1 per cent—were presumably unhappy with jury trial
itself. Such marginality in negative response to jury trial is normal.
There was a second question on un/happiness to the 48 defendants who
had actually experienced jury trial, comprising 11 Asians, 30 Blacks and
7 Whites. Here the dissatisfaction was higher: Asians 27 per cent, Blacks
23 per cent and Whites, 14 per cent. So, about a quarter of tried ethnic
minority defendants were not content with their juries, about double
the rate of Whites. One must bear in mind that almost all these defen-
dants had been convicted, so a control group of acquitted defendants
would have been valuable, but that does not detract from these percep-
tions. Again it would have been interesting to have had information on
*School of Law, Cardiff.
1 R. Hood, S. Shute and F. Seemungal, 'Ethnic Minorities in the Criminal Courts–
Perceptions of Fairness and Equality of Treatment', Lord Chancellor's Department
Research Series No. 2/03, March 2003.
2 T 3.1, Perceptions of Unfair Treatment in Court.
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