In the Box: Voir Dire on LGBT Issues in Changing Times

This is the first law review article to examine transcripts, court filings, and published opinions about jury voir dire on attitudes toward same-sex sexuality and LGBT issues. It demonstrates that jurors express a range of homonegative attitudes. Many jurors voicing such beliefs are not removed for cause, even in cases involving lesbian and gay people and issues. It suggests some best practices for voir dire to uncover attitudes toward same-sex sexuality, based on social science research. Voir dire on LGBT issues is likely to become more important in coming years. Despite enormous gains, including historic marriage equality decisions, the LGBT rights movement remains a cultural flashpoint. In part due to the work of LGBT advocates, more cases involving LGBT issues and sexuality are likely to enter the criminal legal system. These could involve alleged harassment or bullying, like the Dharun Ravi case, or hate crimes against LGBT people, which may be on the rise even as LGBT rights advance. As stigma lessens and more complainants come forward, there also may be more claims of same-sex sexual assault or intimate partner violence In many of these cases, defense attorneys or prosecutors will seek to voir dire jurors regarding their attitudes toward LGBT people and sexuality. At the same time, LGBT venirepersons may fear discrimination in voir dire. In 1998, Paul Lynd wrote that prospective jurors who revealed that they were gay faced employment discrimination or even criminal prosecution under then-extant sodomy laws. Today, Lawrence v. Texas has largely eliminated criminal stigma, and some jurisdictions have LGBT anti-discrimination protections. Nonetheless, depending on the jurisdiction and the context, prospective gay jurors might still fear public outing, and only a few jurisdictions protect jurors from peremptory strikes based on sexual orientation. This paper examines the complex and varying situations in which LBGT issues may surface in voir dire and offers suggestions for navigating this contested terrain