During the voir dire process, the lawyers can ask questions of potential jurors during jury selection to identify a juror’s potential biases. In criminal cases and those involving issues of discrimination, bias, or civil rights, the question of whether jurors might harbor biases based on sexuality can be significant and could affect the outcome of a case.
In December of 2023, the Appellate Court of Maryland addressed this issue in the case of Muldrow v. Maryland. The Court was asked whether the trial court was required to ask potential jurors during voir dire whether anyone in the panel held any bias towards homosexuality. “Homosexuality bias refers to concerns about whether jurors might be influenced by prejudices towards a person’s sexual orientation.” This bias could affect someone’s right to receive a fair trial, especially if the case involves LGBTQ+ individuals or issues related to sexual orientation.
The concern in a criminal matter is whether each juror found the person guilty based solely on the evidence presented during trial or if one or more jurors may have been more inclined to find the defendant guilty based on his or her homosexual orientation or based on legal homosexual activity that the jury was informed about in the course of the trial. This process aims to ensure that jurors can be impartial and fair. In Maryland, it is common practice to ask potential jurors whether they have a bias based on race, ethnicity, cultural heritage, or religion. However, questions involving a party’s homosexuality are often not obvious, unlike a party’s race or ethnicity, for example.
Mr. Muldrow was charged with murdering another man with whom he had engaged in sexual activity. Mr. Muldrow claimed that he had had a one-time homosexual “hook-up” with the deceased but that the victim was alive and well when he left the victim’s apartment on the night they had sex. He also said the sex was consensual. He had asked for a voir dire question to inquire about bias based on homosexuality, and the trial court declined to ask the jury about the potential bias. The Appellate court found the question to be relevant to Mr. Muldrow’s case and reversed his conviction because of the trial court’s refusal to inquire about this potential bias in the jurors.
But the court did not go so far as to require this voir dire question of potential jurors in all cases. The court determined that the question should be asked in cases where the facts and circumstances required it. The Court wrote that:
“To be clear, we are not holding that every defendant who requests a voir dire question about bias against homosexuality must be granted one. Instead—keeping in mind that, unlike race, sexual orientation is not a visible identity and will be known to jurors only if revealed directly or indirectly—the question must be asked only when the facts and circumstances of the trial warrant. Thus, the question will be required when the evidence introduced at trial risks arousing prospective jurors’ bias against homosexuality with regards to the defendant, the victim, or witnesses. ” Muldrow v. State, 259 Md. App. 588, 615, 305 A.3d 879, 894, (2023)
In any jury trial, it is important that the 12 citizens chosen as jurors base their verdicts solely on the evidence presented during the trial. During voir dire, judges must now ask questions of potential jurors to reveal any possible bias against homosexuality when the facts of the case require it.
