A similar question arises in all my employment cases. In a recent case, the defense lawyer was deposing a witness who supported my client. He asked why she thought the manager’s remark was discriminatory. Upon hearing that swine flu was predominant in the Rio Grande Valley, the manager had remarked, "Well, what do you expect from the Valley." The witness recounted that comment as one of 3 or 4 discriminatory remarks made by the manager.
This one may or may not show Hispanic bias. But, the witness (Caucasian) believed it did. The defense attorney then went down a line of questioning he would regret. He wanted to challenge her perception. The defense lawyer was new to South Texas. He had moved here from a Northern state.
Defense attorney: "Why do you think that comment refers to Hispanics?" Witness: "Because everyone knows the Valley is mostly Hispanic." "Are you Hispanic?" Witness: "No, but I have several Hispanic relatives in the Valley and go there often." Attorney: "Have you seen a census report for the Valley?" …. long pause. The witness turns to face the defense lawyer squarely. "I am from Cotulla. I do not have to see a census report to know that Cotulla is predominantly Hispanic." The defense lawyer then wisely dropped this line of questions.
It is a common line of questions – the defense lawyer tries to challenge a perception of discrimination. But, a perception, any perception belongs to the witness alone. It is by definition subjective. It is ultimately up to the jury to assess the validity of the subjective perception. The jury decides the relevance of the remarks and whether one remark or all remarks display some bias.
Some minority clients have actually backtracked or apologized for their perception. They should not. Minorities notice things that majority members of a group do not notice. Body language, facial expressions are facts. Observations are facts. Ultimately, it is up to the jury to agree or disagree that certain body language or particular jokes amount to bias. The beauty (and weakness) of the jury system is that the juries reflect common beliefs, good or bad.