Abstract

Excerpted From: Cynthia Lee, Combating The Colorblind Courtroom: Using Race-Switching To Make Racial Bias Salient, 91 Brook. L. Rev. 489 (Winter, 2026) (241 Footnotes) (Full Document)

An unarmed 18-year-old white youth shoves a 16-year-old black youth during a confrontation in the high school parking lot following a vocational construction class. In response, the black teen strikes the white teen in the head with a large claw hammer .... The African-American youth is charged as an adult with first-degree assault.

Trial will be held in Anchorage, Alaska, a predominantly white community, and the jury will be mostly white. The defense is self-defense, and will emphasize the unilateral and repeated unarmed aggression by the complainant against the accused, and the absolute failure of four nearby administrators and teachers to intervene.

Worried that the jury would subconsciously rely on stereotypes about young Black males as violent criminals and assume their client was the aggressor, the defense attorneys propose a race-switching jury instruction, which the trial judge agrees to give. The judge starts by educating the jury about racial stereotypes. He then suggests a way jurors can test whether they are relying on racial stereotypes in their assessment of the case:

To ensure that you have not made any unfair assessments based on racial stereotypes, you should apply a race-switching exercise to test whether stereotypes have affected your evaluation of the case. “Race-switching” involves imagining the same events, the same circumstances, the same people, but switching the races of the parties and witnesses. For example, if the accused is African American and the accuser is white, you should imagine a white accused and an African-American accuser. If your evaluation of the case is different after engaging in race-switching, this suggests a subconscious reliance on stereotypes. You must then re-evaluate the case from a neutral, unbiased perspective.

After engaging in this race-switching exercise, the jury finds the defendant not guilty on all counts. Race-switching may have helped the jurors see the validity of the Black teen’s claim of self-defense.

Unfortunately, the judge who gave this race-switching jury instruction appears to be an outlier amongst American judges. Most judges seem to believe that calling attention to race is inappropriate and that giving the jury a race-switching instruction is unnecessary, unwise, or improper.

This Article challenges the idea that giving a race-switching jury instruction is unnecessary, unwise, or improper. It theorizes that underlying the belief that the use of race-switching at trial is inappropriate is adherence to the ideal of colorblindness--a well-entrenched and long-standing ideology that reflects the belief that to achieve racial equality, we should ignore race and racial distinctions. Relying on longstanding social science research showing that making race salient helps mitigate jurors’ implicit racial bias, this Article argues that ignoring race is ill-advised and that the best way to ensure fair and equal treatment of defendants and victims in criminal cases is to acknowledge the fact that individuals are often viewed differently based on their race or ethnicity.

Part I provides a more detailed explanation of race-switching as a rhetorical device. It also provides some contemporary examples of race-switching and historical background on race-switching.

Part II surveys recent legal scholarship calling upon courts to address implicit racial bias through jury instructions. Most of the anti-racial bias jury instructions proposed by other legal scholars educate jurors about racial stereotypes and implicit racial bias but, unlike the proposals offered in this Article, stop short of providing jurors with tools they can use to overcome their own implicit biases.

Part III examines several criminal cases in which either a prosecutor used race-switching in oral argument that was deemed improper on appeal or a defendant requested a race-switching jury instruction, but the trial court denied the request and that decision was affirmed on appeal. These cases suggest that many judges are resistant to race-switching.

Part IV provides a theory about why judges are hesitant to incorporate race-switching. The Article theorizes that underlying the view held by many judges that race-switching is improper, unwise, or unnecessary is belief in the ideology of colorblindness. Colorblind ideology suggests that it is normatively inappropriate to pay attention to race, and that calling attention to race undermines this nation’s commitment to equality and judging people on their merit, not on the color of their skin. Colorblind ideology also suggests that calling attention to race is racist, regardless of the reason for calling attention to race. As discussed within, empirical research suggests the opposite is true.

Part V offers a few proposals for reform. The Article first suggests that courts should be required to give a race-switching jury instruction when requested by either party. A race-switching jury instruction would make salient any racial bias impacting the case and encourage the jury to check their implicit biases at the door. In addition, the Article proposes that courts should allow attorneys to (1) engage in voir dire on racial bias whenever an attorney requests such voir dire, and (2) use race-switching in opening or closing arguments. While these alternative methods of making race salient may not be as effective as a race-switching jury instruction--since a jury instruction comes from the judge, who is supposedly fair and impartial, whereas attorney voir dire and opening and closing statements come from prosecutors and defense attorneys who are obviously partisan advocates--these reforms can still help make race salient and encourage jurors to think about whether implicit racial bias is improperly influencing the way they are seeing the case. Part V then addresses a possible Golden Rule objection to race-switching and explains why race-switching does not violate the Golden Rule.

[. . .]

This Article has offered just a few ways that race-switching can be used to make race salient to jurors who do not realize that racial bias might influence their verdict. As social science research has demonstrated, the more jurors are educated about the existence of implicit racial bias and how that bias can manifest in unfair ways, the more likely they are to guard against such bias and render fairer verdicts.

While not currently a commonly used tool in courtrooms across America, there is hope on the horizon. Model race-switching jury instructions that inform jurors about the existence of implicit biases and ask jurors to reconsider their initial impressions of the case after thinking about the case as if the parties involved were of different races have been adopted in at least three states.

And race-switching was used effectively inside the courtroom in a recent high-profile case. In 2022, during opening statements in the federal hate crimes trial of the three White men charged with murder in the death of Ahmaud Arbery, a Black man who was shot and killed while jogging in a predominantly White neighborhood in Georgia, the prosecutor told the jury:

At the end of the day, the evidence in this case will prove that if Ahmaud Arbery had been White, he would have gone for a jog, checked out a cool house under construction, and been home in time for Sunday supper .... Instead, he went out for a jog and ended up running for his life.

The three White defendants were ultimately convicted.

We have come a long way from the days when it was common to believe that bias was solely the product of conscious thought. Even though many people now realize that racial bias is largely a function of the unconscious, implicit racial bias will continue to influence our actions unless we make a conscious effort to combat our biases. Jurors need tools to combat the otherwise automatic stereotype-congruent processes that encourage them to see Black and brown individuals as aggressors. Race-switching is one such tool that can be used to combat implicit racial bias in the criminal courtroom and lead to more equitable results.

Edward F. Howrey Professor of Law, George Washington University Law School.