Abstract

Excerpted From: Matthew Champagne, Linguistic Bias in Jury Selection: A Focus on African American English, 93 UMKC Law Review 425 (Winter 2024) (162 Footnotes) (Full Document Requested)

Everyone has an accent; and yes, dear reader, this includes you. According to linguists, everyone speaks a dialect. A dialect is defined as the set of “vocabulary and grammatical structures that reflects [a speaker's] cultural and regional background.” Linguists define an ““accent” as the sound features of a dialect; or, in other words, an ““accent” is the way that someone pronounces words. To be sure, “[s]poken language varies for every speaker in terms of speech sounds, sound patterns, word, and sentence structure, intonation and meaning ... [t]his is true even for those who believe themselves to speak an educated, elevated, and supra-regional English.”

Even though everyone speaks a dialect and has an accent, biases toward the way someone speaks--or linguistic bias--are ever-present. Linguistic bias, in part, arises from a standardized language ideology. Standardized language ideology (“SLI”) is the idea that differences in speech may result from sociocultural values which indicate that some languages and dialects are appropriate for some social, cultural, and political settings, and others are not. These values, in turn, pressure various social institutions (namely schools to attempt to “standardize” a language-- a process that “consists of the imposition of uniformity upon a class of objects.” That class of objects, when considering language use, would be language itself. As such, “[a]n extremely important effect of standardization has been the development of the consciousness among speakers of a 'correct’ or canonical form of language.” This ideology can lead to a process where “[t]he [canonical] form [of a language] becomes the legitimate form, and other forms become, in the popular mind, illegitimate.”

What does that look like in action? For example, when a student from the southeast United States who speaks with a stereotypical “southern accent” moves to the Midwest, their speech may be ridiculed by their new peers who speak a Midwest variety of English. At its more extreme pole, a student who speaks a variety of Mexican-American English at home may be placed in speech classes in primary school to eliminate any features of their home dialect.

While linguists have firmly established that dialect and accent bias is “the last back door to discrimination,” the legal field has been slow on the uptake regarding this knowledge. Indeed, to date, few studies examine the intersection of linguistic bias in jury trials, and only one study thus far explicitly mentions linguistic bias and the jury selection process itself. This slowness by legal professionals to adopt what linguists have long known may impact the jury selection process. In turn, this can have a substantial impact on many communities, specifically for speakers of African American English, because African American English (“AAE”) is perhaps the most stigmatized variety of American English spoken.

Given that the law is built on language, it is surprising that very little legal scholarship focuses on the way individuals use language within our sociological ecologies and how this usage plays out during jury trials. Indeed, because the way

bias permeates a juror's thinking it may distort the importance of evidence consistent with it. Inferences may be drawn, witnesses found credible or not credible by a juror impelled by bias to find one way or the other. Bias may, therefore, be a fact of singular importance in the case.

This Comment works to help fill that gap. This Comment aims to draw focus on that perhaps singular importance in a case.

As such, trial attorneys who engage with witnesses and defendant-witnesses who speak a variety of AAE while testifying should make an effort to craft sociolinguistically informed voir dire questions. In crafting sociolinguistically-informed voir dire question, trial attorneys can work to ensure linguistic bias is mitigated in the petit jury, and by mitigating that bias, afford a more fair and impartial trial to defendants.

In Part II, this Comment provides a brief overview of scholarship on language and society and will pay special attention to the concept of linguistic bias. Part III will cover the intersection between linguistic bias and the law. In Part IV, this Comment will cover a brief history of AAE outside the courtroom and will provide an overview of some research on AAE inside the courtroom. Part V will examine research on bias in jury selection. Lastly, Part VI reviews the research on linguistic bias in jury selection, linking the previous sections together and calls for attorneys to consider asking voir dire questions that help decrease linguistic bias in jury selection.

[. . .]

In returning to the epigraph by James Baldwin, it is clear that language can be a “political instrument, means, and proof of power.” This Comment has shown that dialect--and in particular, the use of non-standardized varieties of American English such as AAE--are subject to such an instrument, means, and proof. In a profession built on language use and standard of proof, it is imperative, at least to this author, that those in the legal profession understand that Black speakers of AAE may face linguistic discrimination based on the way they speak.

This Comment has explored how linguistic bias can influence judicial outcomes for speakers of non-standard varieties of English, paying close attention to speakers of AAE. Because AAE is perhaps one of the most stigmatized varieties of English, those who speak AAE face a higher risk of linguistic bias influencing their interactions with the judicial system. Though few other works have suggested other ways to help eliminate linguistic bias in the courtroom, those options do not focus on the role of jury selection in particular. As part of the sparse arsenal suggested by previous research, this Comment suggests that crafting sociolinguistically-informed voir dire questions in trials where defendant-witnesses or other witnesses may use AAE while testifying may help combat linguistic bias associated with the use of AAE. In using these sociolinguistically-informed voir dire questions, it is this author's hope that trial attorneys can work to smoke out any linguistic bias before a trial begins and afford a fairer and more equitable trial process.

Matthew Champagne is a J.D. Candidate at the University of Missouri--Kansas City School of Law. Matthew received a B.A. in English-- Literature from Kansas State University, and an M.A. in English--Linguistics from North Carolina State University.