Chan Tov McNamarah (Cornell University, Law School, Students) has posted Sexuality on Trial: Expanding Pena-Rodriguez to Combat Juror Queerphobia (17 Dukeminier Awards J. Sexual orientation & Gender Identity L. (Forthcoming 2018)) on SSRN. Here is the abstract:
The Pena-Rodriguez holding adds fuel to a larger discussion on the issue of juror bias. In recent years, a growing body of scholarship has focused on jurors’ implicit biases, most prominently White jurors’ biases towards Black defendants, and male jurors’ biases against women. Fewer articles have comprehensively considered juror biases against queer parties or solutions to prevent queerphobia from improperly influencing outcomes in criminal proceedings. This Note seeks to fill that dearth by articulating a thorough consideration of queerphobia at trial. The Note is both descriptive and prescriptive. It argues that the effects of juror queerphobia are not uniform but dynamic, manifesting in a myriad of ways depending upon the type of trial and the queer party’s role therein. To combat this queerphobia, the Note then proposes an extension of Pena-Rodriguez to cases of blatant anti-queer bias.