GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2025

Status

Forthcoming

Abstract

In criminal courtrooms across the country, well-meaning judges insist on running colorblind courtrooms — courtrooms in which the attorneys are not allowed to call attention to race. Many judges, including many U.S. Supreme Court justices, believe it is best to ignore racial difference and that noticing race will encourage racial discrimination. The problem is that colorblind courtrooms are likely to exacerbate, not ameliorate, implicit racial bias. Decades of social science research have demonstrated that making race salient helps decision makers treat similarly situated individuals of different races the same and that not calling attention to race results in decisionmakers treating Black individuals more punitively and White individuals more leniently.

Making race salient to lessen its negative effects may seem counterintuitive to those who believe in colorblindness. But it works. While there are various ways to make race salient, one method this Article recommends is a rhetorical device called race-switching. Race-switching in a criminal case encourages jurors to switch the races of the victim and defendant and consider the case with the races switched. If jurors come to a different conclusion about the defendant’s guilt than they did prior to the race-switch, this suggests they have allowed racial bias to impermissibly affect their decision making and they should go back to the drawing board and consider the case again. Even though race- switching has the potential to mitigate racial bias, most judges have resisted endorsing race-switching in their courtrooms.

This Article argues that judges overseeing criminal trials should give jurors a race- switching jury instruction upon the request of either party. Because most judges seem disinclined to give such an instruction, this Article argues for an equally important alternative: judges should allow attorneys to question jurors on racial bias during voir dire and they should also allow attorneys to utilize race-switching during opening or closing arguments. While other legal scholars have proposed anti-racial bias jury instructions, which educate jurors about the existence of implicit racial bias and warn jurors not to rely on racial stereotypes, their proposals have stopped short of giving jurors tools that can actually help them mitigate racial bias. This paper fills this gap and contributes to the existing literature on race in the criminal courtroom by offering courts a way to give jurors the means to proactively mitigate their own racial biases. Doing so will lead to a more equitable justice system for all.

GW Paper Series

2025-64

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