May 2002 - Department of Public Advocacy

Continued from page 5
- No further inquiry should be made once the reason for
the initial stop is dispelled. Minnesota v. Hickman, 491
NW2d. 673, 675 (Minn. App. 1992). (That the initial stop,
while constitutional, did not establish the constitutionality
of the later intrusion and prolonged detention. The
court found that once the reason for the stop was dispelled,
any further questioning was constitutionally impermissible).
- Police must record in-custody interrogations. Minnesota
v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). This
decision came after a series of warnings by the courts to
police.
- Placing limits on police ability to arrest. State v. Varnado,
582 NW2d 886 (Minn. 1998).
- Request to search the mouth of defendant for drugs was
an unreasonable request. State v. Hardy, 577 N.W.2d
212 (Minn. 1998).
B. The Jury Selection Process
Much of the litigation surrounding race is in the context of
jury selection. The following are some important factors to
consider when selecting a jury:
• Batson held that the prosecutor’s use of his preemptory
challenges to strike blacks was a violation of the Sixth and
Fourteenth Amendment, because it would exclude blacks
from participation in jury service solely based on their race.
Batson v. Kentucky, 476 U.S. 79 (1986).
• Batson applies both to prosecutor and defendant. Georgia
v. McCollum, 505 U.S. 42 (1992).
• White defendants can object to excluding black jurors.
Powers v. Ohio, 499 U.S. 400 (1991).
• Excluding a juror based on race in civil or criminal trials is
an Equal Protection Violation. Edmonson v. Leesville, 500
U.S. 614 (1991).
• Equal protection analysis also applies to gender. J.E.B. v.
Alabama, 511 U.S. 127 (1994).
Clearly, the most difficult obstacle many lawyers have in voir
dire is getting a juror to admit racial prejudice. Is that really
what you want them to do Given that the rules for jury
selection differ between jurisdictions, I make the following
suggestions:
• Explain to jurors that racial prejudice is not racism—help
them understand the difference by sharing some personal
experiences.
• Acknowledge your understanding of the difference and
how that makes up your value system. There is courage in
recognizing our prejudices. This will remove some of the
fear.
• Don’t judge the jurors on this topic – this is exactly what
you are asking them not to do. The real racists will scream
out at you. These are generally obvious and can be removed.
THE ADVOCATE Volume 24, No. 3 May 2002
6
• Talk about life experiences—get them talking about the
experience of being a person of color.
• Share your fears with them—the fear that the defendant’s
or witness’s race will affect their decision.
• You cannot free the jury of all bias—don’t think you can.
Jurors want to do the right thing and will decide a case based
on their life experiences. They do not want to believe that
their decisions are based on their prejudices and biases, but
rather on what is right and wrong. We all decide what is right
and wrong based on our morals, biases and prejudices. It is
important that you talk about race without being offensive.
This extends throughout voir dire – don’t be condescending.
Yes, you went to college and law school and many of
them didn’t, but they might send your client to prison or
death. A juror’s lens of justice is put in focus by what they
know about life and by what is important to them. Help them
see your client through your lens.
Here are some questions you should ask of the court
administration:
• Are proper juror summoning procedures being followed
• Are the excused and eliminated jurors causing a disparate
impact
• Are juror questionnaires used when appropriate—this
may help with the embarrassing situations.
Finally, find out all you can about the prosecutor’s past practices—get
transcripts. In challenging race, the court’s focus
must be on the prosecutor’s credibility. If available, you
should also have someone help you record race, gender, appearance,
and answers of jurors. It is extremely important
that you make a record and get a full hearing on the challenges.
III. Cultural Issues in Criminal Defense Work
Client cultural issues must be considered whenever arguing
totality of the circumstances claims or potential mental state
factors. Consider the following when representing a client of
different race, culture, or ethnicity:
• Cultural factors may invalidate the Miranda waiver. Consider
whether the client is from a country where any resistance
to government authority may be futile. Did the client
understood not just the language, but also its meaning.
• Language difficulties are always relevant in understanding
waiver and its consequences. If the client did not understand
the meaning and implications of the waiver, the
waiver may not be knowingly.
• Length of time in the U.S. may be a good indicator whether
or not the client was able to understand the ramifications
of waiving his/her rights.
• Examine what efforts law enforcement undertook to ensure
(obstruct) understanding. Ask whether the arresting officer
made any effort to ensure that your client understood