There’s some intriguing new research out looking at how members of different cultures respond to overt racism. Think of your stereotypes of African American women and Asian American women. Now, think of which group you would predict would respond directly to racism and which group you would predict would be more likely to respond indirectly. If your stereotypes are like most, you likely concluded African American women would respond directly (be more confrontational about it) and Asian American women would respond indirectly (be less confrontational, more retiring).
And you would be right–at least according to this research. But the answer to the ‘why’ is pretty intriguing. Research is growing related to the negative impact of “everyday racism” on physical and mental health. Yet there is no research directly comparing different cultural or ethnic groups and their response to racism.
Researchers chose to compare African American women to Asian American women in their responses to racist comments by strangers.
Their interpretation of African American culture was that it may encourage women to engage in direct confrontation of racism. African Americans may also have a cultural norm of confronting racism as an act of social responsibility.
On the other end of the continuum, Asian American culture may well encourage women to have less assertiveness in interpersonal interactions in order to maintain harmony in the interaction. This results in common coping strategies of avoidance or accommodation. Asian American culture also endorses ‘self-silencing’ among women (to appear quiet, nonthreatening and compliant).
These researchers wanted to see if these stereotypes regarding the African American community norms and the Asian American community norms would find expression under scientific scrutiny. Naturally, they conducted a pair of studies to examine the question.
The first study showed African American women more likely than Asian American women to confront racist statements during an instant messaging interaction on interracial dating. The more racist African American women saw the comments as being, the more likely they were to confront the perpetrator.
In their second study, Asian American women were more likely than African American women to say they would either not respond to a racist statement or that they would respond indirectly. Asian American women reported a desire to “keep the peace” in their response to racist comments.
In both studies, there was no difference in the internal level of intensity with which the women [regardless of race] experienced the level of racism inherent in the interaction. Both African American and Asian American women saw the interactions as both racist and hurtful. They simply chose a different external reaction.
The researchers point to prior research saying that African Americans [both men and women] who do not confront racism end up with higher levels of anxiety and depression as they internally reproach themselves for not confronting the racist behavior. They hypothesize that these differing responses to racism for African American and Asian American women can be healthy for each as they are reinforced by cultural socialization.
In other words, African American women who confront racism directly are in line with their predecessors who confronted discrimination. Asian American women who do not confront racism directly are acting consistently with their heritage which emphasizes peaceful relations.
So what does this mean for litigation advocacy?
First, it serves as a reminder [one we hope is growing less necessary] to avoid racist statements or eliciting racist sentiments or testimony on direct exam.
Second, it tells us racist statements are offensive to women of both African American and Asian American descent and that we can’t always predict whether the external reaction will be direct or indirect–but there will be a reaction.
And third, it is a worthwhile reminder that while cultural awareness and sensitivity is always worthwhile, you might have to take it on faith that there is a cost to racist behavior that might not become immediately apparent. Whether the person immediately reacts to it or not, the impact is negative and lasting.
There remain times when, for purposes of litigation advocacy, it is better to talk about race and times it is better to stay silent. Like Martin Luther King, Jr., we hope that one day strategies like this won’t work anymore.
Lee, EA, Soto, JA, Swim, JK, & Bernstein, MJ (2012). Bitter reproach or sweet revenge: Cultural responses to racism. Personality & Social Psychology Bulletin.
We’ve written a few times about new research on Asian-Americans and so were eager to see a new chapter in a book on ethnic pluralism and its role in the 2008 election. It’s an intriguing treatise on the amazing diversity in the Asian-American community (composed of at least nine ethnic groups and 11 different religious affiliations).
“Asian-American” doesn’t mean one thing. It means many things. According to the chapter authors (So Young Kim and Russell Jeung), Asian-Americans are unique among American ethnic groups in that they do not predictably act as either a racial bloc or a religious bloc. Asian-Americans do not share a religious faith and 27% do not follow any religion per se. And despite their high levels of education and income–they are not particularly politically involved. In fact, Asian-Americans may have lower levels of voting than other ethnic groups (although it is hypothesized this could shift as the various Asian-American groups log in more time in the US and begin establishing a stronger pan-ethnic identity).
What is especially interesting to us is that the authors found patterns in voting among Asian-Americans during the 2008 Presidential elections. Overall, Asian-Americans were more likely to support Barack Obama during the 2008 elections than Caucasian voters with similar incomes and religious affiliations. However, within the Asian-American group, there were subgroup patterns that call out for recognition:
Asian-Americans who were agnostic, atheist, Hindu or Muslim were more likely to vote for Barack Obama (and were also reportedly more liberal).
Asian-Americans who were Protestant and Catholic and more conservative also supported Obama. (You weren’t expecting that were you?)
Finally, Vietnamese-Americans (many of whom are Catholic) were more likely to vote for John McCain.
Another important descriptor the authors use is disenfranchised. Many Asian-Americans feel they are not valued (and truly, they have not been studied to the extent of other ethnic groups in this country) and this is likely an important variable to consider in terms of identification with your case.
Religion, Race, and Barack Obama’s New Democratic Pluralism is a data-dense book with an emphasis on political shifts and ideology based on ethnicity (featuring chapters on mainline Protestants, Evangelicals, Catholics, Jews, Muslims, Seculars, Women, African-Americans, Latinos, and Asian-Americans). What is most interesting from a litigation advocacy perspective is that this chapter shows us that we know a lot less than most of us think we know about Asian-Americans. There is not a blanket description of the Asian-American just as there is not a blanket description of American women, African-Americans, American Muslims or Jews, disabled people or other identifiable groups.
It’s a terrific reminder to not assume and to maintain curiosity about those different than us. They can often surprise you.
So Young Kim, Russell Jeung. 2012. Asian Americans, Religion and the 2008 Elections (Chapter 11). In Religion, Race, and Barack Obama’s New Democratic Pluralism, Gastón Espinosa, Ed. Publisher: Routledge.
Recently, a client sent us a link to a political ad run by Texan US Senate candidate David Dewhurst. The ad essentially attacks Dewhurst’s opponent (Ted Cruz, an attorney) for representing a Chinese company in an intellectual property lawsuit with an American company. Ted Cruz is painted as a “China sympathizer” who is guilty of helping the Chinese steal American jobs. The ad has gotten heavy airplay all over Texas, and the coverage of the dispute related to it has raised the prominence of the controversy even more.
It made us think about several recent projects where bias against Asians was expressed in a joking fashion by various mock jurors. But it was clear that the joking tone was a thin veil for attitudes that were not at all funny. All of the cases involved intellectual property (patents or trade secrets) and the accusations that the Asian entity had reverse-engineered the American IP unfairly. The merits of the cases are one level of analysis, but more prominent was the readiness of most jurors to find guilty conduct in these Asian parties in a way that speaks of confirmation bias.
As many readers of our blog are aware, confirmation bias is the tendency we all have of seeing the world as we believe it to be. People remember evidence that confirms their attitudes and biases, and have weaker recall for contradictory points. Someone with such a bias may say “Because of [X fact], I think the Defendant should pay the Plaintiff”, but you are able to rebut their reliance on [X fact] absolutely. They reply not by changing their conclusion, but by changing their justifying argument. Often, this pattern is an indication of confirmation bias, not of the power of the evidence itself. When I was in graduate school, we referred to this as “drawing the curve before you plot the data”.
In one project, the plaintiff was a very successful American businessman with a Middle Eastern last name, and was suing a major retailer, alleging that they knowingly purchasing and sold black market counterfeit products manufactured in Asia. Given the last name of the plaintiff, we were expecting racism. And we saw it. Interestingly, the racist comments were directed at Asian countries who were (in the minds of jurors) counterfeiting the [American] products and profiting off the backs of a good [American] product name. Slurs were directed (all in a seemingly joking fashion) at China, Korea and Asian countries in general. When questioned about these comments and the basis for them, our mock jurors denied the importance of the comments and then made additional racist comments–again, veiled as jokes.
In another case, a Chinese scientist invited himself to an American university to ‘study’ with an established inventor. While there, the Chinese scientist copied documents and beat the American inventor to the US patent office by filing a patent through his Chinese company with stolen documents. The Chinese scientist later wrote a letter to the American inventor apologizing for his own poor manners and ethics. Again, we heard slurs and stereotypes about Asians being not trustworthy, sneaky, ethically challenged and more. And again, there was no explanation for this from the mock jurors other than additional “joking” comments.
Since we are based in Texas, it might be tempting to say “Wow, those Texas rednecks are pretty closed-minded”. [We would then encourage you to consider the bias implicit in that belief…] But in fact, we conduct research all over the country, and IP cases from coast to coast. The same pattern applies all over. Ethnocentrism is thriving in every community, as it has forever. Globalization is only a good thing if you, your family, and your friends all have the jobs they want.
As we have discussed in other posts about racism and ethnocentrism, people usually deny racial bias, but if the question becomes one of “What do you think your neighbors and co-workers would think about this [racially loaded] issue?”, the jurors often warn us that the minority party is facing a difficult burden due to race. Obviously, such a person doesn’t want to be seen as racist, but doesn’t mind us knowing that their best friends are racist. Not too wily.
Despite recent surveys depicting a positive sense of each other by American and Chinese citizens, we have been seeing a different picture from our American mock jurors for the past few years.
Perhaps it’s due to the flagging economy and perceptions of China overtaking the US as a global superpower.
Perhaps it’s fear of the Asian intelligence that apparently leads to discrimination against Asians in our educational institutions.
Perhaps it’s the leftover stereotypes from 1960’s James Bond movies portraying Asian men as super-villains.
Perhaps it is a combination of all those factors.
Whatever the reason, we are regularly reminded of the need to carefully prepare Asian and Asian-American witnesses for testimony in American courtrooms, and to carefully prepare trial teams on strategies for dealing with overt and covert anti-Asian bias. Just as we carefully prepare other “different” witnesses–whether they be atheists, homosexuals, powerful women, African Americans or Muslims. We focus on clarity of communication (using translators if necessary) and how to introduce the witnesses to the jury so they are seen as trustworthy and credible. Without making that connection, their testimony is corrupted by bias that can creep in and define the witness.
It appears that when bias against Asians is used in high-profile political campaigns, it has achieved mainstream acceptance, and we should all be paying close attention. Running the anti-Ted Cruz ad is estimated to have cost more than $600,000 and we’re guessing money like that isn’t thrown around “just in case” there are a few voters out there who are biased against Asians.
There’s been a progression of labels applied to the two main ethnic minority groups in the United States. Since we cover a lot of applied research here at The Jury Room, we tend to use the label the researchers chose in their research. But Gallup Polls has recently released a survey showing that
“the vast majority of US blacks and Hispanics have no preference when it comes to labels commonly used to describe their racial or ethnic group. Sixty-five percent of blacks say it doesn’t matter to them whether they are called “African-American” or “black”, and 70% of Hispanics say it doesn’t matter to them whether they are referred to as “Latino” or “Hispanic”.
The Gallup poll was conducted between June 13th and July 5, 2013 and included interviews with “1,010 blacks and 1,000 Hispanics”. Gallup reports that blacks with a label preference are evenly divided between preferring either the label “African-American” (17%) or the label “black” (17%). Hispanics with a preference, according to Gallup, show a preference for the “Hispanic” (19%) label over the “Latino” (10%) label.
Gallup tells us the history of preferences and even their own history with labels. From 1930 until 1971, for example, Gallup used the term “Negro” when asking questions about blacks.
“In fact, a 1969 Gallup poll of blacks found “Negro” to be the most widely preferred term among blacks — at 38%, compared with 19% for “black” and 10% for “Afro-American”.”
Since 1971, Gallup has used the term “black” for questions about blacks living in the United States. Gallup did not include questions about Hispanics until 1980 and has always used the term “Hispanic” in their polling questions.
It’s an intriguing quandary for us as pretrial researchers (and for anyone on a quest to keep up with political and social correctness). We want to let people self-identify as whatever they choose. So our pretrial research questionnaire asks them what they consider their racial identity to be and gives them multiple labels from which to choose. We are seeing an increasing use of the “multiracial” designation as our mock jurors identify themselves more precisely. In a recent mock trial, we had jurors self-describing as “Asian and Black”, “Hispanic and Chinese”, “Hispanic and Black”, and “Chinese and Japanese”–in addition to the more traditional single ethnic identity labels.
Most of us don’t like being put into boxes. We want to be unique and individual. The increasing trend toward multiracial identification (also described as “being bigger than one box”) allows individuals to claim all their identities. And that’s a good thing when your goal is to get the most honest and direct feedback about your case as possible. Let even your initial questionnaire interactions elicit the truth. And if you are stuck with a court-designed questionnaire, know that it is inadequate. Know that it doesn’t really capture the identities of a good number of jurors, either personally or ethnically.
As expected, the media has been full of quotes from various “jury experts” talking about the ideal jury composition in the Trayvon Martin/George Zimmerman trial. We’ve contributed to the media glut ourselves. Many of the sources quoted in the media proclaim that the Prosecution “wants African-American jurors”, but we disagree. Sort of.
I doubt that as a general proposition the Prosecution would mind having African-American jurors. But are they needed? That isn’t so clear. In cases where race is salient–that is, where it is a feature of the case itself–racial bias is less extreme since everyone on the jury is on the alert that their decisions about race are being observed. [Research tells us that even the idea we are being watched makes us behave in more positive, tolerant, socially acceptable ways.] A case where race is salient is like raising a flag for the jurors to be vigilant about their prejudices and make decisions that are fair.
In those situations, even one racially different juror (i.e., non-Caucasian) can make a difference. Their very presence serves to underscore the importance of being fair. In capital cases with an African-American defendant for example–having even one African-American juror can mean the difference between life in prison or the death penalty for that defendant.
“In capital cases, one juror can represent the difference between life and death. [snip] In a two-year study of over 100 felony cases in Dallas County, [Texas] the prosecutors dismissed blacks from jury service twice as often as whites. Even when the newspaper compared similar jurors who had expressed opinions about the criminal justice system (a reason that prosecutors had given for the elimination of jurors, claiming that race was not a factor), black jurors were excused at a much higher rate than whites. Of jurors who said that either they or someone close to them had had a bad experience with the police or the courts, prosecutors struck 100% of the blacks, but only 39% of the whites.”
Our own experience in these cases has been that what we would call “racial consciousness or awareness” is more important to a fair verdict than the individual juror’s racial designation. Ironically, it is in cases where race is not salient (e.g., where the Plaintiff/Victim or Defendant happens to be African-American or Hispanic but it is not related to the case itself) that we tend to see the most bias in verdict. It is as though jurors remain unaware of the fact that their racial biases need to be checked. If you will follow the link to our post on a specific case like this that we worked on, you will see that when race is not salient, bias rears its ugly head. And ugly it is. Here’s what we observed when race was not salient:
“Race was irrelevant to the case facts. Focus group members had no external cue to tell them to behave in an unbiased fashion. Therefore they automatically extended biased reactions in the guise of non-racist rationales.”
In the Trayvon Martin/George Zimmerman case, race is very salient and has been made more so by the constant media attention to the issues of race and racial profiling in the Zimmerman decision to shoot and kill Trayvon Martin. Pew Research has released a reminder of just how racially polarizing this case was when the story broke.
“In this sort of case, if you are representing the Plaintiff/Victim, you want to raise the issue of race. Alert white jurors to the expectation that they will fairly consider damages and awards. If race is not mentioned, it will subtly affect the deliberations, even though it will never be mentioned by the jury.
Alternatively, if you are representing the Defense, show lots of pictures but say nothing. If the Plaintiff/Prosecution attorney does not know to raise the race card, jurors will make their decisions based on prejudices and misconceptions.”
It’s both a simple and very complex recommendation based on many research studies and our own experiences in hundreds of mock trials over the years. So. Back to the original question.
Does the Prosecution want African-American jurors?
At least one would be helpful. [And in Florida, it might be necessary!]
Does the Prosecution need an entire panel of African-American jurors?
Not at all.