                   IN THE SUPREME COURT OF IOWA

                             No. 16–0061

                          Filed June 30, 2017


STATE OF IOWA,

      Appellee,

vs.

KELVIN PLAIN SR.,

      Appellant.


      Appeal from the Iowa District Court for Black Hawk County,

Nathan Callahan, Judge.



      Defendant appeals conviction for harassment in the first degree.

AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.



      Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for

appellant.


      Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, Brian Williams, County Attorney, and Molly K.

Tomsha, Assistant County Attorney, for appellee.
                                    2

HECHT, Justice.

      An all-white jury in Black Hawk County convicted the defendant, a

black man, of one count of harassment in the first degree, an aggravated

misdemeanor under Iowa Code section 708.7(1)(b) (2015).        On appeal,

the defendant raises several claims of error, including that the district

court erred in using only the absolute disparity method for assessing the

representativeness of a jury pool when considering whether the racial

composition of the jury pool violated the defendant’s Sixth Amendment

right to an impartial jury.   We abandon the exclusive use of absolute

disparity as a test for jury representativeness under the Sixth

Amendment and permit absolute disparity, comparative disparity, and

standard deviation analyses to be used. Because the defendant’s other

claims of error fail, we conditionally affirm his conviction and remand for

further proceedings on the issue of whether the racial composition of the

jury pool violated his Sixth Amendment right to an impartial jury.

      I. Factual and Procedural Background.

      Kelvin Plain Sr. and Randy Gray were neighbors with an

acrimonious relationship who lived in a small apartment building in

Waterloo, Iowa.   Around 11:00 p.m. on July 10, 2015, Gray and his

spouse—both Caucasians—were asleep in their apartment when they

were awakened by the sound of Plain—an African-American—sweeping a

stairwell in the common area of the apartment building. Gray left his

apartment to tell Plain to stop sweeping.       When Plain refused, an

argument ensued.

      At trial, Gray testified that during the argument Plain went back to

his apartment while he remained in the common area.            Plain then

returned with “a black handle of something in his right pocket” and the

two men continued to argue. According to Gray, Plain then told him he
                                       3

had a gun and knew his mother-in-law’s car was parked outside. At that

point, Plain exited the building and Gray followed, brandishing a golf

club.

        Gray testified that as he stepped outside, Plain threw a pair of bolt

cutters at his head.     Gray averred the bolt cutters hit the side of the

apartment building so loud they made a sound he thought was a

gunshot.

        At that point, Gray picked up the bolt cutters and stood on the

porch of the apartment building with the golf club and prevented Plain

from going back inside.        Gray testified Plain then threatened him

repeatedly.

        Gray’s spouse, who had been on the phone making a 911 call

during the argument, followed the two men outside. She testified that

Plain threw the bolt cutters and that he threatened to shoot, cut, and

stab her husband.

        When law enforcement officers arrived at the scene, they found

Gray on the front porch and Plain in the yard. Plain told them he had

been sweeping the building when Gray came out of his apartment

waiving a golf club at him. Gray and his spouse told the officers Plain

had thrown the bolt cutters.         After interviewing everyone involved,

officers seized the bolt cutters and arrested Plain.

        On August 19, 2015, Plain was charged by trial information with

harassment in the first degree in violation of Iowa Code section 708.7(2),

an aggravated misdemeanor.

        On the first day of trial, Plain objected to the racial composition of

the jury pool, alleging a violation of his Sixth Amendment right to an

impartial jury.     Although African-Americans represent 8.9% of the

population of Black Hawk County, the pool of potential jurors included
                                     4

only one African-American man among fifty-six potential petit jurors—or

1.8% of the group.      Plain did not present any evidence of systematic

exclusion and conceded this meant he could not prove a prima facie

case; however, he asserted this was because the jury manager did not

provide him with the six months’ worth of data on jury pools that he

requested.

      During trial, Plain raised a hearsay objection to testimony from the

officer about what the officer learned from the alleged victim and his

spouse, but the court concluded the testimony was not hearsay and

admitted it.     Plain requested a mistrial after determining the 911

recording in evidence contained references to his criminal history, but

the judge denied the motion and gave a cautionary instruction instead.

Plain objected to the prosecutor’s repeated reference to Gray as the

“victim” during closing argument, but the court overruled the objection.

The court also denied Plain’s request for a jury instruction addressing

implicit racial bias.

      The jury convicted Plain of one count of harassment in the first

degree, an aggravated misdemeanor in violation of Iowa Code sections

708.7(1)(b) and (2). The court imposed a two-year prison sentence, but

suspended it and ordered a term of probation running consecutively after

a sentence on a parole violation. After filing a motion for a new trial,

which was denied, Plain appealed. We retained the appeal.

      II. Standard of Review.

      We review constitutional issues de novo. State v. Chidester, 570

N.W.2d 78, 80 (Iowa 1997).        We review the admission of evidence

challenged as hearsay for the correction of errors at law. State v. Dudley,

856 N.W.2d 668, 675 (Iowa 2014).           Improperly admitted hearsay
                                     5

constitutes grounds for reversal unless the proffering party establishes

the error was not prejudicial. Id.

      Plain’s remaining claims are reviewed for an abuse of discretion.

“Trial courts have broad discretion in ruling on claims of prosecutorial

misconduct and we review such rulings for an abuse of discretion.” State

v. Jacobs, 607 N.W.2d 679, 689 (Iowa 2000).       We review denials of a

mistrial and the giving of a cautionary instruction for an abuse of

discretion. State v. Wade, 467 N.W.2d 283, 285 (Iowa 1991). Finally, we

generally review a district court’s refusal to give a requested jury

instruction for errors at law; however, if the jury instruction is not

required but discretionary, we review for an abuse of discretion. Alcala v.

Marriott Int’l, Inc., 880 N.W.2d 699, 707–08 (Iowa 2016); Herbst v. State,

616 N.W.2d 582, 585 (Iowa 2000).

      When assessing a district court’s decision for abuse of discretion,

we only reverse if the district court’s decision rested on grounds or

reasoning that were clearly untenable or clearly unreasonable. Dudley,

856 N.W.2d at 675. Grounds or reasons are untenable if they are “based

on an erroneous application of the law or not supported by substantial

evidence.” Id.

      III. Analysis.

      Plain raises five issues on appeal.     First, he argues the judge

admitted prejudicial hearsay. Second, he asserts a reference in the 911

recording to his past criminal conduct was grounds for a mistrial. Third,

he contends the judge improperly denied his request for an implicit-bias

jury instruction. Fourth, he insists the prosecutor’s repeated references

to Gray as a victim constituted prosecutorial error and violated his due

process rights. Finally, he asserts that the racial composition of the jury

pool violated his Sixth Amendment right to an impartial jury.
                                             6

       A. Prejudicial Hearsay. The first issue on appeal is whether the

district court’s admission of testimony from an officer about what he

learned from two witnesses—Gray and his spouse—constituted reversible

error. We begin with the testimony at issue:

             Q. Based on your or Officer Shaaf’s conversation with
       Mr. [Gray] and [his spouse], did you learn what caused the
       mark on the [w]all? A. Yes, we did.
             Q. And what caused the mark? A.                    It was the bolt
       cutters hitting the wall after being thrown.

The district court admitted this testimony after instructing the jury it

could only be used as evidence of the officer’s subsequent course of

conduct, not as evidence that the bolt cutters caused the mark on the

wall after being thrown.

       1. Hearsay. We must first determine whether the investigating

officer’s testimony about what he learned from the alleged victim and his

spouse about the cause of the mark on the wall constitutes hearsay. We

conclude that it does.

       Under Iowa law, hearsay is defined as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.”                     Iowa R. Evid.
5.801(c) (2015) 1.     We generally exclude hearsay from admission to the

record, subject to the exceptions and exclusions set forth in rules 5.802

and 5.803, because we deem it inherently unreliable—the declarant

typically does not speak under oath and the party against whom the

evidence is offered does not have the opportunity to cross-examine the



       1In  2016, the rule was amended. Under the new iteration of the rule, hearsay is
defined as “a statement that: (1) [t]he declarant does not make while testifying at the
current trial or hearing, and (2) [a] party offers to prove the truth of the matter asserted
in the statement.” Iowa R. Evid. 5.801(c)(1)–(2) (2017).
                                          7

declarant in order to test the declarant’s perception, memory, or

narration. See State v. Smith, 876 N.W.2d 180, 185 (Iowa 2016).

      Evidence is not hearsay if it is not offered to show the truth of the

matter asserted. State v. Mitchell, 450 N.W.2d 828, 832 (Iowa 1990). An

out-of-court statement offered only to explain responsive conduct that is

relevant to an aspect of the State’s case is not offered to prove the truth

of the matter asserted and is therefore not hearsay.            Id.   But “if the

evidence is admitted, the court must limit its scope to that needed to

achieve its purpose.” McElroy v. State, 637 N.W.2d 488, 502 (Iowa 2001).

      In deciding whether an out-of-court statement is offered to explain

responsive conduct, the court considers “whether the statement is truly

relevant to the purpose for which it is being offered, or whether the

statement is merely an attempt to put before the fact finder inadmissible

evidence.”     Mitchell, 450 N.W.2d at 832.          In several cases, we have

concluded out-of-court statements made to law enforcement officers were

admissible because they were truly relevant for a purpose other than to

prove the truth of the matter asserted. In State v. Mann, for example, we

concluded an officer’s testimony about statements from other officers

that led her to believe someone was a victim of sexual assault was not

hearsay when used to explain why the officer transported the alleged

victim to a hospital for an examination.         512 N.W.2d 528, 536 (Iowa

1994).     More recently, in State v. DeWitt, we concluded an officer’s

testimony about information he received from a confidential source was

not hearsay when offered to explain why the police went to a store and

approached the defendant “rather than another customer displaying

similar behavior.” 811 N.W.2d 460, 477 (Iowa 2012).

      In     other   cases,   we   have   rejected   claims   that    out-of-court

declarations were admissible because they explained responsive conduct
                                       8

of law enforcement officers. For example, in State v. Tompkins an officer

testified that a witness stated a domestic abuse defendant pushed his

girlfriend. 859 N.W.2d 631, 636 (Iowa 2015). We concluded the officer’s

account      of   the   declarant’s   out-of-court   statement   constituted

inadmissible hearsay because it “went beyond the mere fact that a

conversation occurred and instead actually stated what the witness

said.”    Id. at 643.   We further concluded the out-of-court declaration

recounted by the officer “did not merely explain the investigation” but

instead “directly challenged [defense] counsel’s assertion” to the contrary.

Id.   In State v. Elliot, we opined that when the “investigating officer

specifically repeats a victim’s complaint of a particular crime, it is likely

that the testimony will be construed by the jury as evidence of the facts

asserted.” 806 N.W.2d 660, 667 (Iowa 2011) (quoting State v. Mount, 422

N.W.2d 497, 502 (Iowa 1988), overruled on other grounds by State v.

Royer, 436 N.W.2d 637, 639–40 (Iowa 1989)).

         Here, Plain’s overarching argument is that the State solicited the

testimony at issue not to explain the officer’s conduct but instead to use

the weight of the officer’s authority to bootstrap statements from the

alleged victim and his wife about the cause of the mark on the wall. The

State responds that the officer’s testimony is relevant to explain the

officer’s subsequent decision to take the bolt cutters into evidence and

Plain into custody.

         We believe this case most closely resembles the situation in

Tompkins. Here, as in Tompkins, an officer did not merely testify that a

conversation occurred and about the conclusions he reached as a result.

See Tompkins, 859 N.W.2d at 643. The officer testified that he learned

from the alleged victim and his wife that the bolt cutters had been

thrown, causing a mark in the wall. The jury is likely to consider such a
                                      9

statement to be evidence of the fact asserted. See Elliot, 806 N.W.2d at

667. Moreover, the State did not ask why the officer took the bolt cutters

into evidence but instead asked what caused the mark. We think this

fact is telling and conclude “the statement is merely an attempt to put

before the fact finder inadmissible evidence.” See Mitchell, 450 N.W.2d at

832.   Because the primary purpose of the testimony was to prove the

truth of the matter asserted, as in Tompkins, we find the officer’s

testimony about what the alleged victim and his wife told him about the

cause of the hole in the wall to be inadmissible hearsay.

       2. Prejudice.   We must also consider whether Plain suffered

prejudice from the admission of the hearsay evidence.          In assessing

prejudice, we place the burden on the State to affirmatively establish that

the admission of hearsay evidence over proper objection was not

prejudicial.   Elliot, 806 N.W.2d at 669.     The burden to affirmatively

establish lack of prejudice is met “if the record shows the hearsay

evidence did not affect the jury’s finding of guilt.” Id. Tainted evidence

that is merely cumulative does not affect the jury’s finding of guilt. Id.

       The evidence tending to prove Plain threw the bolt cutters was

strong.   The State offered physical evidence that the bolt cutters were

thrown against the wall. The evidence included a photograph of the hole

in the wall and the bolt cutters. The bolt cutters were damaged and had

paint markings consistent with the color of the house.          Notably, the

physical evidence and the photograph came into the record without

objection, see State v. McGuire, 572 N.W.2d 545, 547–48 (Iowa 1997)

(concluding there was no prejudice where “substantially the same

evidence [came] into the record without objection”), and it was consistent

with the testimony given by Gray and his wife. Accordingly, we conclude
                                          10

the challenged hearsay evidence was merely cumulative and therefore

not prejudicial. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998).

       In addition, the trial court gave a jury instruction limiting the

purposes for which the hearsay testimony could be used. We have held

that an instruction limiting the “purposes for which this evidence [can]

be used” may serve as “an antidote for the danger of prejudice.”                   See

State v. Putman, 848 N.W.2d 1, 15–16 (Iowa 2014).                  In this case, the

district court instructed the jury not to consider the out-of-court

declaration as evidence of the truth of the matter asserted and did so

prior to the testimony being given.

       Because the officer’s testimony was cumulative of other evidence

and the court gave an instruction limiting the purposes for which the

evidence could be used, we find no reversible error on this issue.

       B. Reference to Past Conduct.              The second issue on appeal is

whether the district court abused its discretion when it denied Plain’s

motion for a mistrial after a 911 call was played to the jury that allegedly

contained prejudicial references to Plain’s probation status and status as

a felon. 2 We begin with the evidence at issue.

       1. The evidence at issue. During the first day of trial, the State
played for the jury a redacted recording of a 911 call Gray’s spouse made

during the incident.        After the trial adjourned for the night, defense

counsel listened to the recording and heard statements on the tape that




       2Plain also attacks the content of the cautionary instruction, contending that it

compounds the prejudicial effect of the evidence because it highlighted facts the jury
may have otherwise missed or forgotten. We do not address the merits of this argument
because this issue was not raised below and thus is not preserved for appeal. See
DeWitt, 811 N.W.2d at 467. Plain requested the instruction. He did not object to its
content, nor did the State. Thus, error was not preserved for our review. See id.
                                          11

Plain was wearing a GPS monitoring device and was not afraid to go

“back to prison.” The following morning, Plain requested a mistrial.

       The district court denied the request for a mistrial, noting it had

“not hear[d] any reference to going back to prison or the GPS device”

when the recording was played for the jury. 3 The court offered instead to

give a cautionary limiting instruction to the jury to alleviate any potential

harm, if Plain wished. But the court cautioned that “from [its] listening

to the 911 call, . . . the cautionary instruction would almost be bringing

attention to something that they didn’t hear.”

       Defense counsel subsequently requested—and the court gave—a

cautionary instruction. The instruction stated,

       As to . . . the 911 recording, there may have been references
       to a GPS monitoring device and/or time spent in prison. The
       jury is to disregard any statement made regarding a GPS
       monitoring device and/or time spent in prison during the
       course of your deliberation and in reaching your verdict.
       2. Discussion.      On appeal, Plain asserts the court abused its

discretion in giving a cautionary limiting instruction instead of granting

his motion for a mistrial.

       We must first determine whether the evidence was inadmissible.
Under Iowa Rule of Evidence 5.404(b) (2015),

      Evidence of other crimes, wrongs, or acts is not admissible to
      prove the character of a person in order to show that the
      person acted in conformity therewith. It may, however, be
      admissible for other purposes, such as proof of motive,


       3Similarly,the State’s attorney made a professional statement suggesting he was
not aware of objectionable statements on the redacted recording:
       Your Honor, I reviewed the 911 call several times before playing it to the
       jury. I redacted out what I could hear that was inadmissible. I reviewed
       that with [defense counsel] and actually played the portions so that she
       could hear where it was redacted. I did not hear any of the times I was
       reviewing it prior to playing it or when I was playing it these statements.
                                   12
     opportunity, intent, preparation, plan, knowledge, identity, or
     absence of mistake or accident.
Rule 5.404(b) excludes evidence of other crimes not on grounds of

relevance but “based on the premise that a jury will tend to give other

crimes, wrongs, or acts evidence excessive weight and the belief that a

jury should not convict a person based on his or her previous misdeeds.”

State v. Nelson, 791 N.W.2d 414, 425 (Iowa 2010).

      Rule 5.404(b) expressly permits evidence of other crimes, wrongs,

or acts for “proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Iowa R. Evid.

5.404(b). This list is not exclusive; rather, we admit evidence of other

crimes, wrongs, or acts if there is a noncharacter theory of relevance and

the evidence is material to a legitimate issue other than the defendant’s

general criminal disposition. Nelson, 791 N.W.2d at 425. Even if there is

a noncharacter theory of relevance, “the probative value of the evidence

[must] not [be] substantially outweighed by the danger of unfair

prejudice to the defendant.”   State v. Cox, 781 N.W.2d 757, 761 (Iowa

2010).

      In this case, the State did not offer a noncharacter theory of

relevance that is probative of a factor other than a general propensity to

commit wrongful acts. Nor does the evidence fit into a category expressly

permitted by rule 5.404(b). Thus, the evidence of Plain’s prior criminal

history is inadmissible under Iowa law.

      Because the evidence was inadmissible, we must determine

whether the court abused its discretion by granting a cautionary limiting

instruction rather than a mistrial. Generally, a district court’s decision

not to grant a mistrial but to offer a cautionary instruction instead is

entitled to broad deference.   See State v. Wade, 467 N.W.2d 283, 285

(Iowa 1991).    Cautionary instructions are sufficient to mitigate the
                                    13

prejudicial impact of inadmissible evidence “in all but the most extreme

cases.” State v. Breitbach, 488 N.W.2d 444, 448 (Iowa 1992).

      In State v. Belieu, we identified several important considerations

for determining whether a cautionary instruction can adequately mitigate

the prejudicial impact of inadmissible evidence. 288 N.W.2d 895, 901

(Iowa 1980).   The first Belieu consideration is whether the “defendant

[can] combat the evidence without compounding the prejudice.” Id. The

second consideration is how extensive the evidence is and the

promptness with which it was addressed.        Id. at 901–02.   Finally, we

assess prejudice—the stronger the State’s evidence of Plain’s guilt is, the

less prejudicial the effect of the challenged testimony. Id. at 900–01.

      Applying these three considerations to the case at hand, we

conclude the cautionary instruction adequately mitigated any prejudicial

impact of the evidence.    Although Plain’s counsel had opportunity to

listen to the redacted copy of the recording before the trial, and

apparently did listen to at least portions of it prior to trial, once the

recording was played for the jury, Plain lacked the ability to combat the

evidence without compounding the prejudice. See id. at 901.

      However, the evidence was not extensive and the district court

promptly addressed the matter.      See id. at 901–02.    Unlike in Belieu

where we found numerous references to a defendant’s criminal history to

be “so pervasive and central to the defenses that its prejudicial effect

against this defendant could not reasonably be cured by a limiting

instruction,” see id., the references here were brief and inadvertently

included in the redacted version of the recording. In such circumstances

of brief and inadvertent presentations of evidence, we have concluded a

cautionary instruction sufficiently managed the risk of prejudice. See,

e.g., id. at 901–02.      Furthermore, the statements were not the
                                    14

substantive focus of the recording or very obvious; they were presented

with the background noise accompanying a phone conversation between

a witness at the scene and a 911 operator. Indeed, neither the district

court nor the prosecutor recalled having heard the statements when the

recording was played for the jury. Upon learning the recording contained

the objectionable statements, the district court acted swiftly. Although

the court concluded a mistrial was unwarranted, the court proposed and

gave a cautionary limiting instruction.

      Finally, the State’s evidence was strong. As we noted above, the

State presented testimony and corroborative physical evidence and

photographs all tending to establish that the bolt cutters were thrown

against the wall.   Although the statements pertaining to Plain’s prior

criminal history included in the 911 recording were inadmissible under

rule 5.404(b), they were brief, inadvertent, and did not play a major part

in the State’s case. Because the State’s evidence on the contested point

was strong, the prejudicial effect of the challenged testimony is minimal.

See id.   We find no abuse of discretion in the district court’s ruling

denying the motion for mistrial or in giving the cautionary limiting

instruction.

      C. Jury Instruction on Implicit Bias. The third issue on appeal

is whether the district court’s refusal to include an antidiscrimination

jury instruction requested by Plain constituted reversible error.       We

generally review refusals to give jury instructions for errors at law;

however, if the requested jury instruction is not required or prohibited by

law, we review for abuse of discretion. Alcala, 880 N.W.2d at 707–08.

      “Iowa law requires a court to give a requested jury instruction if it

correctly states the applicable law and is not embodied in other

instructions.” Id. at 707 (quoting Sonnek v. Warren, 522 N.W.2d 45, 47
                                     15

(Iowa 1994)). An issue is material if it is outcome determinative. See C &

J Vantage Leasing Co. v. Outlook Farm Golf Club, LLC, 784 N.W.2d 753,

756 (Iowa 2010) (“An issue is “material” [for purposes of summary

judgment] if it might affect the outcome of the suit.”). “Parties to lawsuits

are entitled to have their legal theories submitted to a jury if they are

supported by the pleadings and substantial evidence in the record.”

Herbst, 616 N.W.2d at 585 (emphasis added) (quoting Sonnek, 522

N.W.2d at 47).

        Iowa law permits—but does not require—cautionary instructions

that mitigate the danger of unfair prejudice. See Wade, 467 N.W.2d at

285 (recognizing decision to give cautionary instruction is discretionary);

see also Breitbach, 488 N.W.2d at 448 (noting limiting instructions may

be used to combat potential prejudice from improper evidence).

Cautionary instructions include instructions that recommend a course of

action to a jury or that limit the jury’s considerations of certain facts.

See Breitbach, 488 N.W.2d at 448. We review the issuance or denial of a

requested cautionary instruction for abuse of discretion and only reverse

if the district court’s decision rested on grounds or reasoning that were

clearly untenable or clearly unreasonable. See State v. Newell, 710

N.W.2d 6, 18, 32–33 (Iowa 2006) (concluding issuance of cautionary

instruction did not amount to unreasonable exercise of discretion).

Grounds or reasons are untenable if they are “based on an erroneous

application of the law or not supported by substantial evidence.” Dudley,

856 N.W.2d at 675.

        In this case, the requested antidiscrimination jury instruction

read,

        Reach your verdict without discrimination. In reaching your
        verdict, you must not consider the defendant’s race, color,
        religious beliefs, national origin, or sex. You are not to
                                    16
      return a verdict for or against the defendant unless you
      would return the same verdict without regard to his race,
      color, religious belief, national origin, or sex.

Although the requested instruction correctly states the law, it does not

concern a material issue because it is not outcome determinative;

therefore, it is not required. On the contrary, the requested instruction

is a cautionary instruction because it limits the jury’s consideration of

certain facts and recommends a course of action.        See Breitbach, 488

N.W.2d at 448.     The instruction recommends a course of action by

asking the jurors to consciously reflect on their decisionmaking process

and limits consideration of facts related to race, color, religious belief,

national origin, or sex.      Because the requested instruction is a

cautionary instruction, the district court’s refusal to give it is reviewed

for abuse of discretion. Newell, 710 N.W.2d at 32–33.

      The denial of a cautionary instruction constitutes an abuse of

discretion if the district court’s decision rested on clearly untenable or

unreasonable grounds, such as an erroneous application of law. Dudley,
856 N.W.2d at 675; see also Newell, 710 N.W.2d at 18. Here, the district

court declined to give the requested implicit-bias instruction because it

knew of no authority approving or requiring the instruction and because
the instruction was not included in the Iowa State Bar Association’s

model instructions.

      As explained above, Iowa law permits cautionary instructions

designed to mitigate the danger of unfair prejudice.       See Wade, 467

N.W.2d at 285; see also Breitbach, 488 N.W.2d at 448.           Thus, the

cautionary instruction, which is a correct statement of antidiscrimination

principles, would have been permitted under Iowa law.         The district

court, however, refused to give the instruction because it erroneously

believed it lacked authority from our court to give the instruction.
                                     17

Because the court’s decision rested on an error of law, it constituted an

abuse of discretion.

        Our inquiry does not end there. “Error in giving or refusing to give

a jury instruction does not warrant reversal unless it results in prejudice

to the complaining party.” State v. Hoyman, 863 N.W.2d 1, 7 (Iowa 2015)

(quoting State v. Cordero, 861 N.W.2d 253, 257–58 (Iowa 2015)). “When

the error is not of constitutional magnitude, the test of prejudice is

whether it sufficiently appears that the rights of the complaining party

have been injuriously affected or that the party has suffered a

miscarriage of justice.” State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010)

(quoting State v. Gansz, 376 N.W.2d 887, 891 (Iowa 1985)), overruled on

other grounds by Alcala, 880 N.W.2d 699.          “We [do] not reverse for

marginal or technical omissions . . . .” Sonnek, 522 N.W.2d at 47. Here,

Plain asserts an abuse of discretion, not a violation of the constitution.

Under the facts of this case, there was strong evidence of guilt.       We

therefore conclude the error was not prejudicial.

        While there is general agreement that courts should address the

problem of implicit bias in the courtroom, courts have broad discretion

about how to do so. One of the ways courts have addressed implicit bias

is by giving jury instructions similar to the one proposed by Plain in this

case.    We strongly encourage district courts to be proactive about

addressing implicit bias; however, we do not mandate a singular method

of doing so. As we conclude Plain was not prejudiced by the denial of the

requested instruction in this case, we affirm on this issue.

        D. Prosecutor’s Use of the Term “Victim.” The fourth issue on

appeal is whether Plain was denied his constitutional right to a fair trial

due to prosecutorial misconduct or error.       During the State’s closing

argument, the district court permitted the prosecutor to refer to the
                                       18

complaining witness as the victim, over Plain’s objection, no fewer than

thirty-seven times. In her rebuttal argument, the prosecutor used the

word eleven more times. Plain argues the prosecutor’s repeated use of

the term with the court’s tacit approval violated his constitutional right

to a fair trial under article I, section 9 of the Iowa Constitution and the

Fifth and Fourteenth Amendments of the United States Constitution.

      In his motion for new trial and arrest of judgment, Plain asserted

the State’s repeated references to the complaining witness as the victim

justified a new trial.    At the hearing on the motions, the prosecutor

defended her actions:

            [PROSECUTOR]: It was not improper for me to
      repeatedly refer to Mr. Gray as the victim during closing
      arguments. The testimony and evidence in this case showed
      that Mr. Gray was in fact a victim. And because the
      testimony showed that, I am allowed to argue that in closing
      arguments.

The court denied the motion.

      We consider a claim that the defendant was deprived of a fair trial

under our doctrines of prosecutorial error and prosecutorial misconduct.

See   State   v.   Schlitter,   881   N.W.2d   380,   393–94   (Iowa   2016)

(distinguishing between claims of prosecutorial error and prosecutorial

misconduct); State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003)

(synthesizing our prosecutorial misconduct doctrine).          In order to

establish a violation of the right to a fair trial, a defendant must show

both (1) error or misconduct and (2) prejudice. State v. Krogmann, 804

N.W.2d 518, 526 (Iowa 2011).

      1. Prosecutorial behavior. The defendant must first establish the

prosecutor violated a prosecutorial duty. Prosecutors have a special role

in our criminal justice system.         A prosecutor is not the ordinary

advocate, at least in the sense that “a prosecutor owes a duty to the
                                    19

defendant as well as to the public.”        Graves, 668 N.W.2d at 870.

Although a prosecutor should zealously and lawfully advocate on behalf

of the State, “the prosecutor’s primary interest should be to see that

justice is done, not to obtain a conviction.” Id. Thus, we impose special

duties on prosecutors to ensure they act in accordance with the special

role with which they are entrusted. See, e.g., id. (“[I]t is improper to ask

the defendant whether another witness has lied.”); DeVoss v. State, 648

N.W.2d 56, 64 (Iowa 2002) (noting the prosecutor must “assure the

defendant a fair trial”).

      We set forth standards governing a prosecutor’s duty to the

defendant during closing arguments in Graves. See 668 N.W.2d at 874.

There we stated that although we accord prosecutors “some latitude” to

analyze evidence and argue “reasonable inferences and conclusions to be

drawn from the evidence,” we do not permit a prosecutor to “express his

or her personal beliefs.” Id. We emphasized that prosecutors may not

“vouch personally as to a defendant’s guilt or a witness’s credibility.” Id.

(quoting State v. Williams, 334 N.W.2d 742, 744 (Iowa 1983)).           We

stressed that

      [t]his is true whether the personal belief is purportedly based
      on knowledge of facts not possessed by the jury, counsel’s
      experience in similar cases, or any ground other than the
      weight of the evidence in the trial. A defendant is entitled to
      have the case decided solely on the evidence.

Id. (emphasis added) (quoting Williams, 334 N.W.2d at 744).              “In

addition, the prosecutor is ‘not allowed to make inflammatory or

prejudicial statements regarding a defendant in a criminal action.’ ” Id.

(quoting State v. Leiss, 258 Iowa 787, 792, 140 N.W.2d 172, 175 (1966)).

      A defendant’s constitutional right to a fair trial is violated if a

prosecutor fails to comply with the requirements of due process at the
                                          20

trial, whether by virtue of prosecutorial error or misconduct.4 Id. at 870.

In addressing fair-trial challenges based on prosecutorial behavior, we

first determine whether the prosecutor violated a duty to the defendant.

See id.      If so, we consider whether that violation was intentional or

reckless.     Schlitter, 881 N.W.2d at 394.           An intentional or reckless

violation amounts to prosecutorial misconduct while an unintentional

violation amounts only to prosecutorial error.             Id. We then determine

whether the error caused prejudice.

       The behavior at issue here is the prosecutor’s use of the term

“victim” twenty-five times during her closing argument over Plain’s

objection to refer to Gray, the State’s complaining witness.                       The

prosecutor used the term ten more times during her rebuttal argument.

Plain contends this repeated use of the “victim” descriptor denied him a

fair trial because it impermissibly expressed the prosecutor’s opinion

that a crime was, in fact, committed and that Gray was Plain’s victim.

The State rejoins that the prosecutor violated no rule when she engaged

in spirited advocacy drawing conclusions and arguing inferences

reasonably flowing from the record pertaining to Gray’s role in the

occurrence that was the subject of the trial.

       4We  recently cautioned against conflating prosecutorial error with prosecutorial
misconduct in Schlitter, 881 N.W.2d at 393–94. In that case, we distinguished between
the two terms as follows:
       Prosecutorial misconduct includes those statements “where a prosecutor
       intentionally violates a clear and unambiguous obligation or standard
       imposed by law, applicable rule or professional conduct,” as well as
       “those situations where a prosecutor recklessly disregards a duty to
       comply with an obligation or standard.” Prosecutorial error occurs
       “where the prosecutor exercises poor judgment” and “where the attorney
       has made a mistake” based on “excusable human error, despite the
       attorney’s use of reasonable care.”
Id. (citations omitted) (quoting Shawn E. Minihan, Measuring Prosecutorial Actions: An
Analysis of Misconduct Versus Error, Prosecutor, Dec. 2014, at 23–25).
                                      21

      Other courts have confronted the question of whether a state’s use

of the “victim” descriptor interferes with a defendant’s right to a fair trial.

The decisions of those courts reveal that the propriety of the use of the

descriptor depends in part on the stage of the trial and the context in

which it was used. The Court of Appeals of Texas has concluded a trial

court’s use of the term “victim” rather than “alleged victim” in jury

instructions constituted reversible error in a case in which the sole issue

was   whether    the   complainant     consented    to   sexual   intercourse.

Talkington v. State, 682 S.W.2d 674, 675 (Tex. Ct. App. 1985); see also

Veteto v. State, 8 S.W.3d 805, 816 (Tex. Ct. App. 2000) (concluding use of

the term “victim” rather than “alleged victim” in describing the

complaining witness in a jury instruction constituted an “improper

comment on the weight of the evidence by the court”), abrogated by State

v. Crook, 248 S.W.3d 172, 176–77 (Tex. Crim. App. 2008).

      A prosecutor’s use of the word “victim” has not, however, been

deemed by other courts to be categorically improper when used in other

contexts in criminal cases. The Delaware Supreme Court has noted, for

example, that the term “victim” is routinely used in indictments in that

state to describe the state’s complaining witness. Jackson v. State, 600

A.2d 21, 24 (Del. 1991).     The same court rejected a claim that a trial

court committed plain error in allowing a police officer and an FBI

forensics expert called by the state to use the word “victim” in their

testimony because law enforcement officers use the descriptor as a “term

of art synonymous with ‘complaining witness.’ ” Id. at 24–25.

      But the use of the “victim” descriptor by prosecutors during

criminal trials has been found improper by other courts in certain

contexts. Although infrequent or isolated utterance of the word “victim”

by a prosecutor in conveying the state’s position that specific evidence
                                       22

supports a conviction has been found permissible, pervasive use of the

word by a prosecutor during the presentation of evidence and during

closing argument has been disapproved. Compare State v. Warholic, 897

A.2d 569, 584 (Conn. 2006) (concluding prosecutor’s two closing

argument references to a child as the victim were likely understood by

the jury as reflecting the state’s contention “that, based on the state’s

evidence, the complainant was the victim of the alleged crimes” and,

therefore, not improper), with State v. Albino, 24 A.3d 602, 617 (Conn.

App. 2011) (concluding prosecutor’s twenty-seven references to “victim”

and repeated references to “murder” and “murder weapon” during

evidentiary phase of trial and in closing argument were improper in a

case in which the defendant asserted self-defense).

      Emphasizing the importance of the context in which the word is

used, the Delaware Supreme Court has concluded the state’s use of the

term during trial causes no cognizable harm “when there is no doubt

that a crime was committed and simply the identity of the perpetrator is

in issue.” Jackson, 600 A.2d at 24. However, the court cautioned that a

prosecutor’s repeated use of the term is improper “in a case where

consent [is] the sole defense, and the principal issue one of credibility.”

Id. at 25, clarified on rehearing en banc.     The court reasoned that in

cases in which the parties dispute whether a crime has been committed,

“it is incompatible with the presumption of innocence for the prosecutor

to refer to the complaining witness as the ‘victim,’ just as it is to refer to

the defendant as a ‘criminal.’ ” Id.

      With these principles in mind, we turn to the record.            Plain’s

defense theory was to characterize the transaction as a mere argument

between neighbors. Through cross-examination and argument, defense

counsel sought to persuade the jury that the neighbors’ argument was
                                     23

initiated and continued by Gray. Counsel further posited that the State’s

evidence tending to prove Plain threatened Gray or threw the bolt cutter

at him was incredible and that no crime was committed. The prosecutor

consistently and repeatedly referenced Gray as the victim during her

closing and rebuttal arguments, making no discernible effort to link that

descriptor to any specific evidence in the record.

      Although    we   conclude   the   prosecutor   erred   during   closing

argument in persistently using the term “victim” to refer to the

complaining witness under the circumstances of this case, we do not find

that the prosecutor intentionally violated her duty. At the hearing on the

motion for new trial and arrest of judgment, the prosecutor indicated she

believed her use of the term was justified because the evidence and

testimony established Gray was a victim under the circumstances of this

case. Because the limitations on the proper use of the term “victim” by

prosecutors in this jurisdiction were not clear at the time of Plain’s trial,

we cannot conclude the prosecutor committed misconduct.

      2. Prejudice.    We next consider whether the prosecutor’s error

“resulted in prejudice to such an extent that the defendant was denied a

fair trial.”   Graves, 668 N.W.2d at 869.    In determining prejudice, we

consider

       (1) the severity and pervasiveness of the misconduct; (2) the
       significance of the misconduct to the central issues in the
       case; (3) the strength of the State’s evidence; (4) the use of
       cautionary instructions or other curative measures; and (5)
       the extent to which the defense invited the misconduct.

Id. (citations omitted).
       Applying these factors to the case at hand, we find insufficient

prejudice to merit reversal on this issue. A couple of the factors weigh in

favor of a finding of prejudice. In particular, we note the defendant did

nothing to invite the prosecutor’s behavior and affirmatively objected to it
                                             24

without avail.      Also, whether Gray was a victim was highly central to

Plain’s defense that no crime was committed.

       Other factors weigh more strongly against a determination that

Plain suffered prejudice. First, we note the prosecutor’s use of the term

“victim” was limited to closing arguments and the district court

instructed jurors that “[the] summations and closing arguments of

counsel are not evidence,” thus mitigating the term’s prejudicial effect.

Second, we find the physical and photographic evidence in this case, the

direct evidence of verbal threats made by Plain and recorded on the 911

call, and the consistent witness testimony presented by the State are

strong evidence in support of Plain’s conviction.                       Accordingly, we

conclude the prosecutorial error was not prejudicial and thus do not

reverse on this basis.

       E. Sixth Amendment Right to Impartial Jury. The final issue

on appeal is whether the racial composition of the jury pool violated

Plain’s Sixth Amendment right to an impartial jury. As we have noted,

the jury pool in Plain’s case only contained one African-American man

among fifty-six potential petit jurors. 5               Although African-Americans

comprise 8.9% of Black Hawk County’s population overall, they
represented only 1.8% of the jury pool summoned for Plain’s trial. Plain,

who is African-American, objected to the composition of the jury pool and

requested a new panel.           The district court overruled his objection and

denied his request.



       5Under    Iowa’s jury-selection statutes, a jury “pool” (i.e. venire) consists of all
persons who are summoned for jury service and who report. Iowa Code § 607A.3(9). A
jury “panel” consists of “those jurors drawn or assigned for service to a courtroom,
judge, or trial.” Id. § 607A.3(7). And a “petit” jury (i.e. grand jury) consists of the jurors
who are actually called upon to attend court proceedings. See id. § 607A.3(3).
                                           25

       1. The right to an impartial jury.           The Sixth Amendment to the

United States Constitution provides that “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have been

committed.” 6     U.S. Const. amend. VI.           The right to an impartial jury

entitles the criminally accused to a jury drawn from a fair cross-section

of the community. Taylor v. Louisiana, 419 U.S. 522, 530, 95 S. Ct. 692,

697–98 (1975).

       A jury that represents a fair cross-section of the community

enables “the commonsense judgment of the community [to serve] as a

hedge against the overzealous or mistaken prosecutor and in preference

to the professional or perhaps overconditioned or biased response of a

judge.” Id. at 530, 95 S. Ct. at 698.            It also helps legitimize the legal

system and is “critical to public confidence in the fairness of the criminal

justice system.” Id. Finally, it encourages civic participation through the

shared administration of justice. Id.

       2. The Duren three-part test. In Duren v. Missouri, the Supreme

Court defined a three-part test for establishing a violation of the fair

cross-section requirement. 439 U.S. 357, 364, 99 S. Ct. 664, 668 (1979);

see also State v. Watkins, 463 N.W.2d 411, 414 (Iowa 1990). Under this

three-part test, a defendant can establish a prima facie violation of the

fair cross-section requirement by showing

       (1) that the group alleged to be excluded is a ‘distinctive’
       group in the community; (2) that the representation of this

        6Article I, section 10 of the Iowa Constitution also entitles a criminal defendant

to a jury pool that represents a fair cross-section of the community. See State v.
Knutson, 220 N.W.2d 575, 577 (Iowa 1974). The defendant has not raised a challenge
under article I, section 10, however, so we do not consider in this case whether the
protection offered by that provision is identical to that provided under the Sixth
Amendment.
                                    26
      group in venires from which juries are selected is not fair
      and reasonable in relation to the number of such persons in
      the community; and (3) that this underrepresentation is due
      to systematic exclusion of the group in the jury-selection
      process.

Duren, 439 U.S. at 364, 99 S. Ct. at 668. If the defendant establishes a

prima facie case, the burden shifts to the state to justify the

disproportionate representation by proving “a significant state interest” is

“manifestly   and    primarily   advanced”     by    the   causes    of   the

disproportionate exclusion. Id. at 367–68, 99 S. Ct. at 670.

      Under   the   first Duren prong,     a   defendant   must     establish

membership in a distinctive group under community standards, id. at

364, 99 S. Ct. at 668, meaning a community group with “a definite,

objectively ascertainable membership” that “constitutes a substantial

segment of the population” and has “common and unique opinions,

attitudes, and experiences” that cannot be adequately represented by

members of the general population.       Thomas M. Fleming, Age Group

Underrepresentation in Grand Jury or Petit Jury Venire, 62 A.L.R. 4th 859,
867 (1988).     In other words, a defendant must show she has

“characteristics that are relevant to constituting a jury venire that is

representative of the community.”     David M. Coriell, Note, An (Un)fair
Cross Section: How the Application of Duren Undermines the Jury, 100

Cornell L. Rev. 463, 480 (2015) [hereinafter Coriell].     Under Iowa and

federal law, these characteristics might include race, color, religion, sex,

national original, or economic status. Compare Iowa Code §§ 607A.2, .4,

.10, .19–.22, with 28 U.S.C. §§ 1862, 1864 (2012).

      Under the second Duren prong, a defendant must establish the

proportion of group members in the jury pool is underrepresentative of

the proportion of group members in the community.          See, e.g., Duren,

439 U.S. at 364–66, 99 S. Ct. at 669. The second prong “distinguishes
                                              27

between acceptable and unacceptable levels of deviation for the

representation of a distinctive group on a jury venire from their

representation in the community.” Coriell, 100 Cornell L. Rev. at 480.

To measure representation, jurisdictions generally apply one or more of

the following statistical tests: (1) absolute disparity, (2) comparative

disparity, and/or (3) standard deviation.                United States v. Hernandez-

Estrada, 749 F.3d 1154, 1160 (9th Cir. 2014). 7

       The first test, absolute disparity, is useful as a quick dipstick for

providing a rough gauge of the representativeness of a jury pool. United

States v. Rogers, 73 F.3d 774, 777 (8th Cir. 1996) (panel decision).

Absolute disparity is calculated “by taking the percentage of the distinct

group in the population and subtracting from it the percentage of that

group represented in the jury panel.” State v. Jones, 490 N.W.2d 787,

793 (Iowa 1992).               The lower the resulting percentage, the more

representative the jury pool. 8

       The absolute disparity formula does not account for the relative

size of the minority group in the general population. It instead excludes

any minority population that makes up a percentage of the population


       7Hernandez-Estrada       also discusses the absolute impact test, which is similar to
the absolute disparity test.
       Under [the absolute impact] approach, the initial calculation is the same
       as for the absolute disparity test. However, the resulting number is then
       multiplied by the number of persons on the particular panel. . . . The
       advantage of the test is that it applies the disparity analysis to the actual
       jury pool to determine the impact. However, because it is based on the
       absolute disparity test, the absolute impact test bears many of the same
       flaws.
Hernandez-Estrada, 749 F.3d at 1162.
       8Courts  set different standards for what constitutes an absolute disparity that is
not a fair and reasonable representation. See Jones, 490 N.W.2d at 793 (noting other
courts have found absolute disparities of anywhere from 2.9% to 10% insufficient to
establish a prima facie case).
                                    28

that is lower than the permissible amount for absolute disparity.       For

example, if absolute disparity is established at ten percent, see id., then

it excludes any minority population that accounts for less than ten

percent of the population from the Sixth Amendment’s protections.

      The second test, comparative disparity, is useful in examining the

relative size of the minority group in the general population. Rogers, 73

F.3d at 777 (“[I]t calculates the representation of African Americans in

jury pools relative to the African-American community rather than

relative to the entire population.”). Comparative disparity is calculated

by dividing the absolute disparity by the percentage of the population

represented by the group in question. See United States v. Sanchez, 156

F.3d 875, 879 n.4 (8th Cir. 1998). The higher the comparative disparity

percentage, the less representative the jury pool.

      The primary shortcoming of the comparative disparity test is that it

can overstate underrepresentation for groups with a small population

percentage.    Hernandez-Estrada, 749 F.3d at 1163 (“Let’s assume, for

example, that a group constitutes .1% of the population, with no

representation in the jury pool. The comparative disparity of that group

would be 100%. Few would argue that the absence of a group

representing just 0.1% of the population violates the fair cross-section

requirement,    yet   comparative   disparity   analysis   would    suggest

otherwise.”). In addition, with very large groups, comparative disparity

tends to validate deviations that are not produced by chance even though

that can alter the representativeness of the average jury significantly. Id.

      The final test, standard deviation, is useful to measure “predicted

fluctuations from the expected value.”     Castaneda v. Partida, 430 U.S

482, 496 n.17, 97 S. Ct. 1272, 1281 n.17 (1977). Standard deviation is

calculated by analyzing a sample taken from the voter wheel and
                                           29

analyzing it for randomness and fluctuations. Id.; see also United States

v. Weaver, 267 F.3d 231, 238–39 (3d Cir. 2001).

       Standard deviation, too, is an imperfect test for assessing

disproportional minority representation.               Measures of the standard

deviation presume randomness; however, the chances of drawing a

particular jury composition are not random, in part because “the

characteristics of the general population differ from a pool of qualified

jurors.” Hernandez-Estrada, 749 F.3d at 1163.

       Under the third Duren prong, a defendant must establish that

systematic exclusion of the group caused the underrepresentation of the

group. 9 See Duren, 439 U.S. at 364, 99 S. Ct. at 668. The third prong


        9The Sixth and Fourteenth Amendments both protect the impartiality of a jury.

See Nina W. Chernoff, Wrong About the Right: How Courts Undermine the Fair Cross-
Section Guarantee by Confusing It with Equal Protection, 64 Hastings L.J. 141, 151–52
(2012) [hereinafter Chernoff I]. While the Fourteenth Amendment’s Equal Protection
Clause bars the intentional exclusion of protected minority groups, the Sixth
Amendment guarantees that minority groups will not be systematically excluded, even
where there is no evidence of intentional exclusion. Coriell, 100 Cornell L. Rev. at 472
(“[W]hile equal protection is a powerful tool to combat intentional discrimination in
drafting the jury venire, it is less effective in addressing situations where there is
obvious underrepresentation of certain segments of the community on jury venires but
no evidence of intentional exclusion on the part of state actors.”).
       In this case, the State asserts the defendant did not establish evidence of
discriminatory intent. The State conflates the test for a violation of the Equal Protection
Clause (which requires a showing of intent) with the test for a violation of the Sixth
Amendment (which does not). See Chernoff I, 64 Hastings L.J. at 151–52.
        For an example of how there can be systematic exclusion without discriminatory
intent, consider an example from Hartford, Connecticut, where
               Unbeknownst to the jury office, an inadvertent error caused the
       computer program to erroneously read the “d” in the capital city of
       Hartford to mean “deceased.” The computer program accordingly never
       selected anyone from Hartford to receive a jury summons. . . .
              The computer program also failed to send jury summons to
       anyone in the neighboring city of New Britain, the second largest city in
       the jury district. The New Britain citizens were left out of the jury pool
       because the source list of names from New Britain was accidentally
       misplaced and was never entered into the computer program.
                                         30

“distinguishes between situations where a particular jury venire is

nonrepresentative and those situations where the jury venires in a

district are continuously nonrepresentative of the community.” Coriell,

100 Cornell L. Rev. at 481.            To establish systematic exclusion, a

defendant must establish the exclusion is “inherent in the particular

jury-selection process utilized” but need not show intent.             Duren, 439

U.S. at 366, 99 S. Ct. 669.       In other words, the defendant must show

evidence of a statistical disparity over time that is attributable to the

system for compiling jury pools. Coriell, 100 Cornell L. Rev. at 481. “If

there is a pattern of underrepresentation of certain groups on jury

venires, it stands to reason that some aspect of the jury-selection

procedure is causing that underrepresentation.” Id.; accord Duren, 439

U.S. at 366, 99 S. Ct. at 669–70.

       3. State v. Jones. We initially endorsed the absolute disparity test

and rejected the comparative disparity test in Jones. See 490 N.W.2d at

793. In Jones, a five-justice panel of our court considered whether the

Scott County procedure for compiling a jury list that relied solely on voter

registration lists and drivers’ license records violated the fair cross-

section requirement of the Sixth Amendment. Id. at 791–92. The jury

panel at issue in that case consisted of less than 3.5% African-Americans

while Scott County was 4.1% African-American. Id.

       Concluding that the United States Supreme Court had adopted the

absolute disparity test, we expressly rejected the comparative disparity

__________________________
              . . . Those two cities alone accounted for 63% of the voting-age
       African-American population and 68% of the voting-age Hispanic
       population in the jury district.
Nina W. Chernoff, No Records, No Right: Discovery & the Fair Cross-Section Guarantee,
101 Iowa L. Rev. 1719, 1723–24 (2016) (footnotes omitted).
                                      31

test.   Id. at 793.   Citing precedents from the United States Courts of

Appeals for the Eighth and Ninth Circuits, we concluded an absolute

disparity of 1.5% was not unfair or unreasonable under Duren. Id.

        We affirmed two other cases in which the absolute disparity test

was utilized in the early 1990s. In State v. Huffaker, we concluded an

absolute disparity of 2.85% between the number of African-Americans in

Polk County (4.52%) and the percentage of African-Americans in the jury

venire (1.67%) was not sufficient to constitute a violation of Duren’s

second prong. See 493 N.W.2d 832, 833–34 (Iowa 1992). In Thongvanh

v. State, we decided a 0.18% absolute disparity between Asians selected

for jury duty (0%) and Asians in the general population of a county

(.18%) did not violate the fair cross-section requirement.       494 N.W.2d

679, 683 (Iowa 1993).

        i. Courts criticize the absolute disparity test. At the time they were

decided, the scope of the Supreme Court’s decisions in Swain v.

Alabama, 380 U.S. 202, 85 S. Ct. 824 (1965), and Castaneda, 430 U.S.

482, 97 S. Ct. 1272, was unclear. We mistakenly viewed the Supreme

Court’s acknowledgement of the absolute disparity test in Swain and

Castaneda as tacit approval of the absolute disparity model of statistical

computation. See Jones, 490 N.W.2d at 792–93 (discussing Swain, 380

U.S. at 208–09, 85 S. Ct. at 829, and Castaneda, 430 U.S. at 495, 97

S. Ct. at 1280).        After Jones was decided, the Supreme Court

acknowledged the comparative disparity formula and followed a case-by-

case approach permitting consideration of the results of multiple

analytical models. Berghuis v. Smith, 559 U.S. 314, 329–30, 130 S. Ct.

1382, 1393 (2010) (discussing People v. Smith, 615 N.W.2d 1, 2 (Mich.

2000), and Smith v. Berghuis, 543 F.3d 326, 338 (6th Cir. 2008), rev’d

and remanded on other grounds, 559 U.S. 314, 130 S. Ct. 1382 (2010)).
                                    32

Thus, we can no longer say that the Supreme Court’s acknowledgement

of the absolute disparity model is a preference for that approach.

      Further, our decision in Jones relied on authorities from the

United States Courts of Appeals for the Eighth and Ninth Circuits.

Shortly after we decided Jones, the Eighth Circuit affirmed a defendant’s

conviction under Eighth Circuit precedent but sharply criticized the

circuit’s reliance on absolute disparity analysis and opined that the

comparative disparity model should also be used.       Rogers, 73 F.3d at

775–76.   Subsequently, the Ninth Circuit expressly overruled its prior

precedent that had deemed the absolute disparity formula to be the

exclusive analytical tool. See Hernandez-Estrada, 749 F.3d at 1163.

      ii. Practical issues with Jones.     Exclusive use of the absolute

disparity test creates problems of constitutional significance in Iowa.

The test offers less protection for a minority group as the group’s

percentage of the community’s total population decreases. Id. at 1162.

In adopting the absolute disparity test in Jones, we noted that the

Supreme Court had determined that “the underrepresentation of as

much as ten percent” did not establish a prima facie case for the second

Duren prong. 490 N.W.2d at 793.

      The shortcoming of the absolute disparity formula is demonstrated

by the fact that African-Americans do not represent more than ten

percent of the population in any county in Iowa.         See Iowa Black

Population Percentage, 2013 by County, www.indexmundi.com/facts/

united-states/quick-facts/iowa/black-population-percentage#chart (last

visited June 27, 2017).    In the seven Iowa counties with the highest

African-American population—Black Hawk (8.9%), Scott (7.4%), Polk

(6.5%), Des Moines (5.7%), Johnson (5.5%), Linn (4.3%), and Webster

(4.1%)—an     African-American     could    not   establish    a     racially
                                       33

unrepresentative jury using the absolute disparity model under the Sixth

Amendment even if the exclusion of African-Americans was total and

systematic.     Outside of the Hispanic and Latino population, no Iowa

county has a minority population that rises above the ten-percent floor

referenced in Jones. Such a result is at odds with the Sixth Amendment

and the purposes of the fair cross-section requirement.

        A test without teeth leaves the right to an impartial jury for some

minority      populations    without     protection.     Empirical     evidence

overwhelmingly shows that having just one person of color on an

otherwise all-white jury can reduce disparate rates of convictions

between black and white defendants. For example, when researchers at

Duke University compared data on conviction rates by race in over 700

criminal trials over a ten-year period, they found that where there was

one or more black jurors, black and white defendants had roughly equal

rates of conviction; however, all-white juries convicted African-American

defendants 81% of the time and white defendants only 66% of the time.

Shamena Anwar, et al. The Impact of Jury Race in Criminal Trials, 127

Q.J. Econ. 1017, 1027–28, 1032 (2012).

        The data evidencing the impact of racially unrepresentative juries

on case outcomes are especially troubling given that Iowa ranks worst in

the nation for the percentage of our prison population that is African-

American (more than 25%), while African-Americans represent just 3.3%

of the state’s population. Kyle Munson, Black-White Disparities Persist in

Iowa,     Des    Moines     Register   (last   updated    July   12,     2015),

http://www.desmoinesregister.com/story/news/local/kyle-munson/

2015/07/12/black-iowa-statistics-economics-incarceration/30059517.

Troubling, too, is the fact that African-Americans in Iowa are ten times

more likely to be arrested than persons of other races; and Iowa ranks
                                          34

third worst in the nation for our incarceration rate for black men

(9.4%). 10      Id.   A sound formula for assessing underrepresentation of

minorities in our jury pools must provide meaningful protections of the

right to an impartial jury.

       4. The second Duren prong.              Our decision to adopt absolute

disparity as the exclusive test and to reject comparative disparity in

Jones rested upon an error of law and on cases from other jurisdictions

that have since been overruled or criticized. After surveying the various

tests, and bearing in mind the practical problems associated with the use

of the absolute disparity test in Iowa, we conclude it is no longer

appropriate to rely exclusively upon the absolute disparity test as an

indicator of representativeness. We therefore overrule Jones, 490 N.W.2d

at 792–93.

       A sizeable number of jurisdictions consider more than one

analytical model when making determinations about whether a jury pool

constitutes a fair and reasonable cross-section of the community. 11 Like


       10The  high arrest and incarceration rates have secondary effects, too, presenting
barriers for education and employment and contribute to high percentages of families
living in poverty (39% for black families versus 13.9% statewide), receiving food stamps
(42% for black households versus 11% for white households), rental housing (73.4% for
black Iowans versus 29.2% statewide), median income ($27,406 for black households
versus $52,652 for white households), unemployment (11.6% for black Iowans versus
4.8% overall), health insurance pre-Affordable Care Act (44% of black Iowans versus
77% of white Iowans), dropout rates (14% for black children who make up just 5% of
the school population), and bachelor degrees (15% for black Iowans versus 26% overall).
Kyle Munson, Black-White Disparities Persist in Iowa, Des Moines Register (last updated
July 12, 2015), http://www.desmoinesregister.com/story/news/local/kyle-munson/
2015/07/12/black-iowa-statistics-economics-incarceration/30059517.
       11See,e.g., Hernandez-Estrada, 749 F.3d at 1164–65; Mosley v. Dretke, 370 F.3d
467, 479 n.5 (5th Cir. 2012); United States v. Orange, 447 F.3d 792, 798–99 (10th Cir.
2006); Ramseur v. Beyer, 983 F.2d 1215, 1231 (3d Cir. 2000); State v. Sanderson, 898
P.2d 483, 487 n.2 (Ariz. Ct. App. 1995); State v. Lopez, 692 P.2d 370, 375–76 (Idaho Ct.
App. 1984); State v. Kennedy, 823 So. 2d 411, 418–19 (La. Ct. App. 2002); State v.
Williams, 525 N.W.2d 538, 543 (Minn. 1994); Evans v. Smith, 926 P.2d 265, 275 (Nev.
1996); State v. Dixon, 593 A.2d 266, 271–72 (N.J. 1991); Commonwealth v. Rosado,
                                          35

the Ninth Circuit, we decide “not [to] prescribe an alternative exclusive

analysis to be applied in every case” and to follow the Supreme Court in

permitting multiple analyses to be used that are appropriate to the

circumstances of each case. See Hernandez-Estrada, 749 F.3d at 1164.

Parties   challenging     jury    pools    on   the    ground     that   they    are

unrepresentative may base their challenges on multiple analytical

models.    The district court may use multiple analytical models in its

analysis, taking into account the various strengths and weaknesses of

each test when determining whether jury pools comport with the Sixth

Amendment mandate of representativeness.

       This flexible approach is consistent with the nature of the Sixth

Amendment right to have a jury pool made up of a fair cross-section of

the community. What constitutes a fair cross-section of the community

is subject to change over time. See Taylor, 419 U.S. at 537, 95 S. Ct. at

701 (noting the definition of “community” is subject to change because

“[c]ommunities differ at different times and places”). “What is a fair cross

section at one time or place is not necessarily a fair cross section at

another time or a different place.”         Id. (noting that although the total

exclusion of women was permitted at one time, women could no longer

be excluded at all on account of their sex). Because what constitutes a

fair cross-section of the community is a fluid concept, a flexible approach

for determining when a racial disparity rises to the level of a

constitutional violation is warranted.

       5. The third Duren prong.          The State argues that even if we are

convinced that the problems with the absolute disparity calculation and
__________________________
No. 2467, 1993 WL 1156055, at *28 (Pa. Com. Pl. 1993); State v. Hester, 324 S.W.3d 1,
43 (Tenn. 2010); Ovalle v. State, 13 S.W.3d 774, 778 (Tex. Crim. App. 2013); State v.
Tillman, 750 P.2d 546, 577 (Utah 1987).
                                      36

the benefits of the comparative disparity calculation justify overruling

Jones, we should not change course in this case because Plain did not

present evidence under the third factor, which is required to establish a

prima facie case. Plain contends that any failure to present a prima facie

case on the third prong was caused by the jury manager’s denial of his

request for access to the information necessary to compile historical data

on the composition of juries in Black Hawk County.

      Plain’s counsel recounted, during a colloquy with the court, her

effort to obtain the relevant historical data.

      [F]or purposes of preserving the record at least . . . I also
      have what I was hoping would be better[, which] I’ve marked
      as Court’s Exhibit 2. That is the report that I had our jury
      manager Billie Treloar print off for me.

             I thought that she might be able to get me some
      statistics for the last six months. She says she can only print
      off today’s panel in this courtroom. So I guess I just want to
      enter these for purposes of the record. I understand that I
      haven’t met my burden with the prima facie case. I’d concede
      that. But since I’ve tried to make the motion, I’d at least like
      to supplement the record.

      In Iowa, the constitutional right to an impartial jury is enshrined

in and implemented by statute.       See Iowa Code §§ 607A.1–.47 (2016).

Iowa’s jury laws are loosely based on the federal jury laws.       Compare

Iowa Code §§ 607A.1–.47, with 28 U.S.C. §§ 1861–78. The statutes in

the state and federal systems describe in detail the procedures and

standards for compiling jury pools.        In each instance, their essential

purpose is to implement the constitutional right to a jury.

      Importantly, the state and federal statutes require the selection

authorities to maintain all records and lists concerning the selection of

jurors for a period of at least four years. Compare Iowa Code § 607A.26,

with 28 U.S.C. § 1868. Unlike the federal law, however, which requires

the selection authority to make the records and papers it compiled and
                                      37

maintained    “available   for   public    inspection   for   the   purpose   of

determining the validity of the selection of any jury,” 28 U.S.C. § 1868,

the Iowa Code does not expressly require the state to provide access to

the data and information that must be maintained, see Iowa Code

§ 607A.26.

      In at least four jurisdictions that lack a state statute establishing

the right and procedures for obtaining the information necessary to

enforce an individual’s Sixth Amendment rights, courts have determined

that the constitution mandates access even if statutes do not. See Nina

W. Chernoff, No Records, No Right: Discovery & the Fair Cross-Section

Guarantee, 101 Iowa L. Rev. 1719, 1763 (2016) [hereinafter Chernoff II]

(reviewing cases).

      The Supreme Court of Missouri, for example, reasoned that the

“cross-section requirement would be without meaning if a defendant

were denied all means of discovery in an effort to assert that right.” State

ex rel. Garrett v. Saitz, 594 S.W.2d 606, 608 (Mo. 1980) (en banc). In

holding that a defendant “is entitled to information relating to the racial

composition of the grand jury so that he may assess whether he has a

viable constitutional challenge,” the Nevada Supreme Court reasoned

that “[w]ithout this information, [the defendant]’s ability to show a

potential violation of his constitutional right to a grand jury drawn from a

fair cross-section of the community is limited.” Afzali v. State, 326 P.3d

1, 1, 3 (Nev. 2014).       The Superior Court of New Jersey, Appellate

Division, determined “[i]t would be virtually impossible for defendants

who are endeavoring to ascertain if a successful attack on the grand jury

selection process can be advanced if the facts necessary to prove a defect

in the selection process are withheld.”       State v. Ciba-Geigy Corp., 573
                                    38

A.2d 944, 950 (N.J. Super. App. Div. 1990); accord Mobley v. United

States, 379 F.2d 768, 773 (5th Cir. 1967).

      Like the courts in Missouri, Nevada, and New Jersey, we conclude

the constitutional fair cross-section purpose alone is sufficient to require

access to the information necessary to prove a prima facie case. Those

courts

      were each faced with a criminal defendant’s request for data
      on the racial and ethnic composition of the jury pool. Each
      court acknowledged that their state had no statutory
      equivalent to the [Federal Jury Selection and Service Act
      (JSSA)], and each granted the defendant’s request for jury
      data on purely constitutional grounds, recognizing that
      access was necessary to enforcement of the fair cross-section
      right.

Chernoff II, 101 Iowa L. Rev. at 1763 (citations omitted).

      Defendants are entitled to access the information needed to enforce

their constitutional right to a jury trial by a representative cross-section

of the community.       In this case, Plain attempted to obtain the

information he is entitled to receive. Because our statutes do not specify

a procedure for accessing the information, he took what we view to be a

reasonable approach—he asked the jury manager to provide it. The jury

manager did not produce the information, citing a lack of access to the

information the state is constitutionally required to maintain.      To the

extent Plain did not meet his prima facie case with respect to the third

prong of the test, we conclude he lacked the opportunity to do so

because he was not provided access to the records to which he was

entitled.

      Because we find no reversible error on the other issues raised on

appeal, we conditionally affirm Plain’s conviction and remand to the

district court for development of the record on the Sixth Amendment

challenge. Following proper development of the record pertaining to that
                                    39

challenge, the district court shall determine whether Plain’s right to a

representative jury under the Sixth Amendment was violated.           If the

court concludes that right was violated, the court shall grant a new trial.

      IV. Disposition.

      We conclude that the district court’s admission of hearsay evidence

through the testimony of an investigating officer about what caused the

hole in the side of the house did not constitute reversible error because it

was merely cumulative and thus not prejudicial. We further conclude

the district court did not abuse its discretion in using a cautionary

instruction to address a reference to Plain’s past criminal conduct on the

911 tape. Although the district court’s denial of Plain’s request for an

implicit-bias jury instruction rested upon an error of law and thus

constituted an abuse of discretion, we conclude the denial did not

prejudice Plain. Although the prosecutor committed error in repeatedly

using the word “victim” to refer to the complainant in this case, we find

no prejudicial error resulted.   Finally, we conclude the district court

made an error of law in concluding the absolute disparity test must be

used in deciding whether the jury pool was drawn from a fair cross-

section of the community. We conditionally affirm Plain’s conviction and

remand for development of the record on his Sixth Amendment

challenge. On remand, the State shall provide the defendant reasonable

access to the records necessary to evaluate whether African-Americans

were systematically underrepresented in the jury pool from which the

jurors were selected for Plain’s trial. Following development of the record

on this issue, the district court shall reconsider Plain’s claim that his

jury did not represent a fair cross-section of the community.

      AFFIRMED       ON     CONDITION        AND     REMANDED         WITH

DIRECTIONS.
                                  40

     Cady, C.J., Wiggins, Appel, and Zager JJ., join this opinion. Cady,

C.J. files a special concurrence joined by Wiggins and Appel, JJ.

Wiggins, J., files a separate special concurrence joined by Cady, C.J.,

and Appel, J. Appel, J., files a separate special concurrence joined by

Cady, C.J., and Wiggins, J.    Waterman, J., files a separate special

concurrence joined by Mansfield and Zager, JJ.    Mansfield, J., files a

separate special concurrence joined by Waterman, J.
                                    41
                                                   #16–0061, State v. Plain

CADY, Chief Justice (concurring specially).

      I concur in the majority opinion and join in the special

concurrences by Justice Wiggins and Justice Appel.

      It is as important to address implicit bias in jury deliberations as it

is to address racial diversity in jury selection. The more this is done, the

more these biases and differences will cease to exist. The more this is

done, the more the goal of a fair and impartial trial will be understood.
      Any verdict, judgment, or sentence motivated by any type of bias is

unjust. Our system of justice must have confidence that the outcomes of

trials were achieved with impartiality and fairness.       Today’s decision

identifies several ways for our justice system to improve.       We should

never stop looking for others.

      Wiggins and Appel, JJ., join this special concurrence.
                                          42

                                                           #16–0061, State v. Plain

WIGGINS, Justice (concurring specially).

       I join the majority opinion; however, I feel compelled to write

separately on the issues of implicit bias and racial disparity in Iowa. A

recent report by The Sentencing Project found 25.8% of Iowa’s prison

population was black, while blacks made up only 3.1% of Iowa’s

population.        Ashley Nellis, The Color of Justice: Racial and Ethnic

Disparity in State Prisons 16 (2016) [hereinafter Nellis]. The same report

found the black to white incarceration ratio in Iowa’s prisons was 11 to

1. Id. at 17. These statistics reveal that Iowa is one of the worst states

in the country when it comes to racial disparity regarding imprisonment.

Id. at 16–17. These numbers are shameful, and I believe much of the

cause for these alarming statistics is due to implicit bias against blacks

in Iowa.12

       I agree with the majority statement, “We strongly encourage

district courts to be proactive about addressing implicit bias.”                     In

furtherance of that encouragement, I would require judges to give an

implicit-bias instruction in every case where counsel requests one and

implicit bias may have an effect on a jury.
       Due    to    the   disgraceful    disparity    in   the    punishment       and

incarceration between blacks and whites, we should not wait for further

research and study on the issue of implicit bias and racial disparity. The

demand for justice to our black citizens does not allow for further

stalling. A defendant and his or her counsel are in the best position to


       12The same report finds the rates for Hispanic disparity are much different. In

2014, 6.9% of Iowa’s prison population was Hispanic, while Hispanics made up 5.5% of
Iowa’s population. Nellis, at 16. The same report found the Hispanic to white
incarceration ratio in Iowa’s prisons was 1.7 to 1. Id. at 17. Although the Hispanic to
white disparity is better than the black to white disparity in Iowa, it could be better.
                                    43

know whether the circumstances of the present case warrant an implicit-

bias instruction. A defendant and his or her counsel are also in the best

position to determine whether instructing jurors on implicit bias may

lead to a better outcome or not.

      In the future when a defendant requests an implicit-bias

instruction and implicit bias may have an effect on a jury, there is no

reason for the court not to instruct the jury on implicit bias. See Sonnek

v. Warren, 522 N.W.2d 45, 47 (Iowa 1994).

      Cady, C.J., and Appel, J., join this special concurrence.
                                     44

                                                   #16–0061, State v. Plain

APPEL, Justice (concurring specially).

        In this case, the court removes an inappropriate formalistic barrier

to achieving increased representation of African-Americans and other

minority groups on our juries by overturning precedent which, in my

view, was plainly incorrect.      While this barrier-removing exercise is

important, and even essential, we have a long way to go in ensuring

fairness to racial minorities in our criminal justice system.

        I write separately to express my view that a criminal defendant is

entitled to an accurate, properly worded implicit-bias jury instruction to

assist the jury in reaching a fair and unbiased verdict.

        I. Overview of Implicit Bias.

        A. Introduction: What Are We Talking About?             What is this

new-fangled “implicit bias” business all about?            Despite the new-

sounding term, however, the concept of implicit biases is supported by

long-standing theories of heuristics and cognitive biases.            Social

scientists have long demonstrated that we tend to “anchor” our

judgments about current perceptions in what we have experienced in the

past.    See Thomas Mussweiler & Fritz Strack, Hypothesis-Consistent

Testing and Semantic Priming in the Anchoring Paradigm: A Selective

Accessibility Model, 35 J. Experimental Soc. Psychol. 136, 147 (1999)

(describing the field of “heuristics and biases” and canvassing the

literature, beginning in 1974, studying the anchoring effect).        Social

scientists have identified an “endowment effect,” where we tend to give

irrational attachment to initial distributions of property rights, grants, or

other entitlements.     See Ying Zhang & Ayelet Fishbach, The Role of

Anticipated Emotions in the Endowment Effect, 15 J. Consumer Psychol.

316, 316 (2005). And, social scientists have observed “hindsight bias”
                                          45

which makes us believe what happens today should have easily been

foreseen.   See Jeffrey J. Rachlinski, A Positive Psychological Theory of

Judging in Hindsight, 65 U. Chic. L. Rev. 571, 571–75 & n. 2–4 (1998)

(describing the hindsight bias and citing to the psychological research).

      The National Center for State Courts has published a succinct

description of implicit bias by a leading expert. Jerry Kang, Implicit Bias:

A     Primer         for    Courts        1–6      (August     2009)        http://

wp.jerrykang.net.s110363.gridserver.com/wp-content/uploads/2010/10

/kang-Implicit-Bias-Primer-for-courts-09.pdf [hereinafter Kang, Implicit

Primer]. In the Implicit Primer, Kang explains that all of us, in our daily

lives, process information and develop “schemas,” or templates of

knowledge that organize individual bits of information into more

generalized concepts. Id. at 1.

      Kang offers the following illustration of a schema: when a smiling

person hands us a laminated paper with detailed descriptions of food

and prices, we know what the gesture means. Id. Kang explains that we

categorize people in the same way. Id. According to Kang, “We naturally

assign people into various social categories divided by salient and

chronologically accessible traits, such as age, gender, race, and role.” Id.

Many of these shorthand schemas may be unconscious, involving

“implicit   social    cognitions   that    guide   our   thinking   about    social

categories.” Id.

      The notion of implicit bias has recently received considerable

attention in the context of providing justice to African-American and

other minority defendants in criminal trials. See Michelle Alexander, The

New Jim Crow: Mass Incarceration in the Age of Colorblindness 106–08

(2012). The general notion in the literature is that because of implicit

bias, racial stereotyping may be unconscious and not explicit. In 2006,
                                   46

the California Law Review published papers arising from symposia on

implicit bias and behavioral realism with implications for the courtroom.

See, e.g., R. Richard Banks et al., Discrimination and Implicit Bias in a

Racially Unequal Society, 94 Cal. L. Rev. 1169, 1189–90 (2006); Anthony

G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific

Foundations, 94 Cal. L. Rev. 945, 965–67 (2006); Christine Jolls & Cass

R. Sunstein, The Law of Implicit Bias, 94 Cal. L. Rev. 969, 995–96 (2006)

[hereinafter Jolls]; Linda Hamilton Krieger & Susan T. Fiske, Behavioral

Realism in Employment Discrimination Law: Implicit Bias and Disparate

Treatment, 94 Cal. L. Rev. 997, 1061–62 (2006) [hereinafter Krieger,

Behavioral Realism]. A review of implicit bias research and its potential

application was conducted in a 2012 article coauthored by United States

District Court Judge Mark Bennett. See Jerry Kang et al., Implicit Bias in

the Courtroom, 59 UCLA L. Rev. 1124, 1128–34 (2012). A large body of

academic literature has emerged on the subject. See, e.g., Mark W.

Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection:

The Problems of Judge-Dominated Voir Dire, The Failed Promise of Batson,

and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 154–58 (2010)

[hereinafter Bennett] (reviewing the literature); Jennifer S. Hunt, Race,

Ethnicity, and Culture in Jury Decision Making, 11 Ann. Rev. L. & Soc.

Sci. 269, 273–74 (2015); Jerry Kang & Kristin Lane, Seeing Through

Colorblindness: Implicit Bias and the Law, 58 UCLA L. Rev. 465, 473–81

(2010) [hereinafter Kang, Seeing Through Colorblindness] (summarizing

the science).

      B. The Science Behind the Theory of Implicit Bias.              The

leading approach documenting implicit bias is the Implicit Association

Test (IAT). See Allen R. McConnell & Jill M. Leibold, Relations Among the

Implicit Association Test, Discriminatory Behavior, and Explicit Measures
                                     47

of Racial Attitudes, 37 J. Experimental Soc. Psychol. 435, 435 (2001).

The IAT measures unconscious preferences by comparing the speed with

which we make certain associations. See Anthony G. Greenwald et al.,

Measuring Individual Differences in Implicit Cognition: The Implicit

Association Test, 74 J. Personality & Soc. Psychol. 1464, 1464–65 (1998).

Other kinds of measurements of implicit bias have also been developed.

See id. at 1477 (describing the “evaluative priming method” as the chief

method used to measure implicit biases prior to the IAT).          While a

detailed summary of the research results are beyond the scope of this

opinion, a substantial body of literature comes to the conclusion that

implicit bias is substantial and real. See, e.g., David L. Faigman et al., A

Matter of Fit: The Law of Discrimination and the Science of Implicit Bias,

59 Hastings L.J. 1389, 1434 (2008); John T. Jost et al., The Existence of

Implicit Bias Is Beyond Reasonable Doubt: A Refutation of Ideological and

Methodological Objections and Executive Summary of Ten Studies that No

Manager Should Ignore, 29 Res. Organizational Behav. 39, 41 (2000);

Kang, Seeing Through Colorblindness, 58 UCLA L. Rev. at 519–20.

      C. Activities of American Bar Association and National Center

for State Courts on Implicit Bias.

      1. American Bar Association.        The Section on Litigation of the

American Bar Association has developed an “Achieving an Impartial Jury

Toolbox” (AIJ Toolbox). Am. Bar Ass’n, Achieving an Impartial Jury (AIJ)

Toolbox 1 (2015) [hereinafter AIJ Toolbox]. In this publication, the AIJ

Toolbox notes there is more to discrimination than express bias, stating

“research demonstrates that self-reports are often unreliable because we

may not know our implicit biases and associations or we may not choose

to reveal them.” Id. at 8. The AIJ Toolbox further notes, “The workings

and results of the IAT are widely documented.” Id. at 9. The AIJ Toolbox
                                     48

explains, “Using IAT data, researchers have found pervasive implicit bias

in associations in favor of Whites as compared to Blacks, women in

families as compared to women in careers, and the abled as compared to

the disabled.” Id. (footnotes omitted). The AIJ Toolbox goes on to state

“[w]hile these implicit associations are made without our express

knowledge, and often contrary to or honestly held beliefs, they

nevertheless influence our responses and decisions.” Id. at 10 (footnotes

omitted).

      The AIJ Toolbox includes an instruction on implicit bias. Id. at 17–

20.   The AIJ Toolbox concedes that arriving at the language was

challenging and that fundamental questions were raised whether

highlighting the notion of implicit bias would do more harm than good.

Id. at 16. In addition to its own draft instruction, the AIJ Toolbox also

presents the implicit-bias instruction used by Judge Bennett, a

California jury instruction, and a race-switching instruction developed by

Professor Cynthia Lee. Id. at 20–22.

      2. National Center for State Courts. The National Center for State

Courts (NCSC) has also been active in the field of implicit bias. Although

publication does not imply endorsement, the NCSC funded and

published a summary on implicit bias by Jerry Kang. See Kang, Implicit

Primer, at 1.    The NCSC also has published a study of implicit-bias

instructions. See Jennifer K. Elek & Paula Hannaford-Agor, Nat’l Ctr. for

State Cts., Can Explicit Instructions Reduce Expressions of Implicit Bias:

New Questions Following a Test of Specialized Jury Instruction 2 (April

2014).      The study found no significant effects of an implicit-bias

instruction    on   judgments   of   guilt,   confidence,     strength   of   the

prosecution’s evidence, or sentence length.       Id. at 3.    As a result, the
                                    49

researchers were unable to render a verdict on the utility of a specialized

jury instruction. Id.

      D. Judicial Acceptance of Implicit-Bias Theory. Although the

United States Supreme Court has not expressly embraced the theory of

implicit bias, various members of the court have done so. For instance,

Justice Ginsburg in Grutter v. Bollinger has noted, “It is well documented

that conscious and unconscious race bias . . . remain[s] alive in our land,

impeding realization of our highest values and ideals.”     539 U.S. 306,

345, 123 S. Ct. 2325, 2347–48 (2003) (Ginsburg, J., concurring).

Similarly, Justice O’Connor in Georgia v. McCollum wrote, “It is by now

clear that conscious and unconscious racism can affect the way white

jurors perceive minority defendants and the facts presented at their

trials, perhaps determining the verdict of guilt or innocence.” 505 U.S.

42, 68, 112 S. Ct. 2348, 2364 (1992) (O’Connor, J., dissenting). Justice

White also observed in Turner v. Murray that “[m]ore subtle, less

consciously held racial attitudes could also influence a juror’s decision in

this case.” 476 U.S. 28, 35, 106 S. Ct. 1683, 1688 (1986). In his dissent

in Turner, Justice Brennan declared it to be “incontestable that

subconscious, as well as express, racial fears and hatreds operate to

deny fairness to the person despised.”      Id. at 42, 106 S. Ct. at 1691

(Brennan, J., dissenting)

      We have also recognized the reality of implicit bias. In Pippen v.

State, this court considered whether plaintiffs could bring a class action

under Title VII and the Iowa Civil Rights Act against thirty-seven different

executive branch departments as a result of disparate hiring practices.

854 N.W.2d 1, 5 (2014).      Among other evidence, the plaintiff offered

expert testimony from Anthony Greenwald and Cheryl Kaiser, leading

experts on implicit bias. Id. at 6. The majority opinion held that under
                                     50

applicable law, a class action across thirty-seven departments could not

be maintained. Id. at 32. Importantly, in a concurring opinion, Justice

Waterman wrote, “Implicit-bias theory helps explain how statistical

disparities can result without intentional discrimination.”        Id. at 33

(Waterman, J., concurring specially).     He further wrote that “there

undoubtedly    was    subjectivity   and—as     the   plaintiffs    credibly

demonstrated—implicit bias in multiple State hiring decisions.”       Id. at

41.   Nothing in the Pippen majority opinion contradicted Justice

Waterman’s observations.

      II. Instructions to Jury as Remedy for Implicit Bias.

      A. Introduction.     One potential remedy in a jury trial is a jury

instruction that accurately describes the potential problem of implicit

bias and properly instructs the jurors of the need to avoid making a

decision based upon it. We have stated a defendant is entitled to a jury

instruction that is germane to the case and accurately states the law.

Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016);

Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 823–24 (Iowa

2000); Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994). While we have

also stated the failure to give a cautionary instruction is reviewed for

abuse of discretion, State v. Webb, 516 N.W.2d 824, 831 (Iowa 1994),

implicit bias is so pervasive and the harm from implicit bias so difficult

to prove in a particular case that I conclude a criminal defendant is

entitled to an implicit-bias instruction upon request. Examples of jury

instructions provided in the AIJ Toolbox include the AIJ model

instruction, the instruction utilized by Judge Bennet, an implicit-bias

instruction from California, and a race-switching instruction suggested

by Professor Lee. See AIJ Toolbox at 17–22.
                                     51

      B. Rationale for Implicit-Bias Instruction. The rationale for an

implicit-bias instruction is that it is consistent with the way the human

mind works and is an appropriate remedy to minimize the impact of

implicit bias in jury determinations. Research suggests that the problem

of implicit bias may be moderated by attention to the issue. See Irene V.

Blair, The Malleability of Automatic Stereotypes and Prejudice, 6

Personality & Soc. Psychol. Rev. 242, 255 (2002) (“[R]esults of these tests

show that automatic stereotypes and prejudice can be moderated by a

wide variety of events . . . .”); Anna Roberts, (Re)Forming the Jury:

Detection and Disinfection of Implicit Juror Bias, 44 Conn. L. Rev. 827,

835 (2012) (noting that IAT researches find implicit associations

“malleable”).

      C. Objections to Implicit-Bias Jury Instruction.

      1. Rejection of social science in favor of formalistic legal structures.

One potential objection is that courts should not look to social science in

the development of law generally, but should instead rely on formalistic

legal structures that have historically been applied by the legal system.

Although historically embraced approaches to law have undoubted value,

the law must be rooted in reality. Scientific developments should affect

legal doctrine. For instance, evolving science has significantly affected

this court’s approach to the application of the Iowa Constitution’s cruel

and unusual punishment clause with respect to juveniles.           See, e.g.,

State v. Sweet, 879 N.W.2d 811, 839 (Iowa 2016); State v. Ragland, 836

N.W.2d 107, 115 (Iowa 2013); State v. Null, 836 N.W.2d 41, 74 (Iowa

2013). Similarly, as shown in the seminal case of State v. Henderson, the

law of eyewitness identification is being reevaluated in light of evolving

science that challenges broad-brush, undifferentiated views on the

reliability of eyewitness identifications. 27 A.3d 872, 917 (N.J. 2011).
                                     52

      2. Not supported by social science research. Another approach is

to attack the underlying scientific basis of a jury instruction for implicit

bias. This challenge breaks down into two questions. First, is there a

scientific basis for implicit bias generally? Second, if there is, has it been

scientifically demonstrated that a proposed jury instruction is an

appropriate and effective remedy?

      On the first question, I conclude that there is strong scientific

evidence of the existence of implicit bias. Whether an instruction will be

effective is another question.    Unlike the question of whether implicit

bias exists, where there is a large literature, there is not a body of science

demonstrating the impact of an implicit-bias instruction on a jury and, to

the extent it exists, it appears inconclusive. See AIJ Toolbox, at 15 n.20.

      But a body of social science evidence demonstrating utility is not

required of our jury instructions. The instructions of the Iowa State Bar

Association, for example, have not been subjected to social science

analysis for their likely impact as have, for instance, questions on the bar

examination developed by the National Conference of Bar Examiners.

Instead of requiring social science confirmation, we allow various

wordings of legal concepts in jury instructions if they accurately reflect

the law. If a body of social science research supporting the efficacy of

each jury instruction were required, we would have no approved jury

instructions and no judge could craft his or her own case-specific

instructions without social science support.

      3. Inflaming jurors against defendant.      The concern is expressed

that an implicit-bias jury instruction could potentially inflame jurors.

This concern may be put in the “anything is possible” file.          There is

certainly no social science support for that proposition. In any event, it

is certainly equally possible, and probably more likely, that a jury
                                       53

instruction on the presumption of innocence would well inflame a juror

who believes that the criminal justice system affords too many rights to

criminal defendants and is too lenient. It is ironic to deny a defendant

an accurate instruction on implicit racial bias sought by the defendant’s

lawyer on the ground that, in some conceivable scenarios, it might,

perhaps, maybe, be counterproductive on particular jurors.

       In any event, we ordinarily leave it up the defendant’s counsel to

make the determination as to whether his client will benefit from a

particular instruction.     See Lamphere v. State, 348 N.W.2d 212, 217

(Iowa 1984) (holding that counsel is not ineffective for failing to request

every legally supportable jury instruction).         There is no mandatory

requirement that a lawyer seek an instruction to which the defendant is

entitled but which, in the lawyer’s professional judgment, may do more

harm than good. It is fundamental to our adversary system, however,

that defendant’s counsel, and not the court, make that strategic decision.

       4. The problem of overcorrection. Another possible objection is the

fear   that    an   implicit-bias   instruction   could   potentially   lead   to

overcorrection. The potential of overcorrection, however, inheres in many

jury instructions. That said, a properly worded implicit-bias instruction

should minimize the risks of overcorrection by emphasizing that the

jury’s decision should be based on facts and evidence and not on

stereotypes.    Further, as noted by Professor Lee, “until there is some

tangible evidence that making race salient would lead jurors to

overcorrect in racially unjust ways, it seems imprudent not to even

attempt to deal with the racial bias we know exists.”             Cynthia Lee,

Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-

Racial Society, 91 N.C. L. Rev. 1556, 1608 (2013).
                                    54

      D. Use of an Implicit-Bias Instruction in This Case.          I agree

with the basic premise that our law should be based on a realistic

understanding of human behavior. See Jolls, 94 Cal. L. Rev. at 995. As

noted by Oliver Wendell Holmes many years ago, “The first call of a

theory of law is that it should fit the facts.” Krieger, Behavioral Realism,

94 Cal. L. Rev. at 997 (quoting Oliver Wendell Holmes, The Common Law

167 (1963)). I am also convinced that implicit bias is real, pervasive, and

potentially outcome determinative in a criminal trial.    I further believe

that other remedies, such as the remedy theoretically available under

Batson v. Kentucky, 476 U.S. 79, 93–98, 106 S. Ct. 1712, 1721–24

(1986), are ineffective. See Bennett, 4 Harv. L. & Pol’y Rev. at 161–68;

Antony Page, Batson’s Blind Spot: Unconscious Stereotyping and the

Peremptory Challenge, 85 B.U. L. Rev. 155, 178–79 (2005) (characterizing

Batson as ineffective).   Courts should not get unduly stressed when

presented with an accurate instruction designed to address a real and

persistent problem.

      As a result, I conclude that a criminal defendant is entitled to an

accurate, appropriately worded implicit-bias instruction upon request.

In my view, the other instructions in this case did not adequately
address the problem of implicit bias. Ideally, such an instruction should

be given at the beginning of jury selection.      I would not dictate the

specific working of an implicit-bias jury instruction, but the model

instruction of the ABA, Judge Bennett’s instruction, and the implicit-bias

instruction in the District of Columbia and California provide meaningful

guidance. See AIJ Toolbox, at 17–22.
                                           55

       I acknowledge this step would be a departure from current law.13

It was not long ago, however, when even express racial discrimination

was permitted in courtrooms all across the country.                   An implied-bias

instruction is not innovation for the sake of innovation, but reflects a

reassessment of courtroom conduct based on evolving science and the

aspiration of achieving fundamental fairness that is indispensable to our

system of justice.        Refined efforts to achieve fairness are not only

important to the participants in trials but to public confidence in our

system of justice.

       There is, of course, a question of timing.                  There always is a

question of timing.       Every substantive change may be resisted by the

refrain “not now, but later.” Later, of course, often explicitly or implicitly


       13The   few cases from other jurisdictions I have found that have directly
addressed an implicit-bias instruction, as opposed to a more general racial-bias
instruction, have determined that the giving of such an instruction is within the
discretion of the district court judge. See United States v. Graham, ___ Fed. App’x ___,
___, 2017 WL 702287, at *3 (8th Cir. Feb. 22, 2017) (per curiam); State v. Roseboro, 528
S.E.2d 1, 13 (N.C. 2000). These cases are not germane under Iowa law because Iowa
employs a different substantive standard than federal law to determine whether a party
is entitled to an instruction. In Graham, the United States Court of Appeals for the
Eighth Circuit stated that jury instructions must fairly inform the jury “of the essential
elements of the offense charged, as well as the government’s burden of proof.” ___ Fed.
App’x at ___, 2017 WL 702287, at *3. Under Iowa law, a defendant is entitled to the
submission of a jury instruction if it “correctly states the applicable law and is not
embodied in other instructions.” Sonnek, 522 N.W.2d at 47. We have no requirement
that a proposed jury instruction must relate to an essential element of the offense, or
the government’s burden of proof, in order to reverse for failure to give a jury
instruction.
        The question in Roseboro was whether a capital murder defendant was
constitutionally entitled to an instruction for the jury to disregard explicit and implicit
racial biases in the penalty phase of the trial. Id. at 554. Here, we are not dealing with
the question of whether due process requires an implicit-bias instruction, so the
Supreme Court of North Carolina’s holding may not be applicable. Additionally, there is
no evidence that the Roseboro court considered the research on how racial bias
pervasively infects an imposition of the death penalty when the defendant is African-
American and the victim is Caucasian. It seems unlikely that the North Carolina court
did consider this research because it wrote that the defendant’s proposed instructions
would “in effect, inject[] racial bias into the jurors’ consideration.” Id. at 555.
                                    56

means never. For me, in light of the large body of science demonstrating

implicit bias, the time for an implicit-bias instruction in Iowa courtrooms

is now.

      Cady, C.J., and Wiggins, J., join this special concurrence.
                                     57
                                                   #16–0061, State v. Plain

WATERMAN, Justice (concurring specially).

        I join the majority’s well-reasoned opinion except for Part III.D.2,

addressing the prosecutor’s use of the word “victim” in her closing

argument.     On that issue, I join the special concurrence of Justice

Mansfield. I write separately to respond to the special concurrences of

Justice Wiggins and Justice Appel that would require judges to give a

jury instruction on implicit bias. Although I might decide to use such an
instruction if I were a trial judge, I do not believe our court has enough

information at this point to mandate such an instruction statewide

whenever there is a defendant from a racial minority. Furthermore, no

cases have been cited to us requiring trial courts to instruct on implicit

bias.    To date, all appellate courts addressing the question have

confirmed that trial courts have discretion whether to instruct the jury

on racial bias. I agree with our court’s majority that the district court

had discretion whether to give the implicit-racial-bias instruction, and

the omission of that instruction did not prejudice Kelvin Plain.

        Just this year, the United States Court of Appeals for the Eighth

Circuit held that a trial court was not required to instruct on implicit

racial bias in a criminal case. United States v. Graham, ___ F. App’x ___,

2017 WL 702287, at *3 (8th Cir. Feb. 22, 2017) (per curiam). The jury

convicted Fredrick Graham of being a felon in possession of a firearm.

Id. at *1.   He offered a proposed instruction to “counteract the jurors’

‘implicit bias’ and ‘unconscious racial attitudes.’ ”   Id. at *2.   Like the

instruction requested by Plain, Graham’s instruction “directed the jurors

to reach their verdict ‘without discrimination’ and without ‘consider[ing

Graham’s] race, color, religious beliefs, national origin, or sex.’ ”     Id.
                                    58

(alteration in original). The trial court declined to give the instruction,

and the Eighth Circuit affirmed, stating,

             Graham next argues that the district court abused its
      discretion by declining to give his proposed instruction on
      implicit racial bias. We disagree. A district court has broad
      discretion to formulate jury instructions. We review jury
      instructions as a whole and affirm if they “fairly and
      adequately submitted the issues to the jury.” The district
      court’s instructions fairly informed the jury of the essential
      elements of the offense charged, as well as of the
      government’s burden of proof. Additionally, the instructions
      specifically directed the jury that it should “not allow
      sympathy or prejudice to influence you. The law demands of
      you a just verdict, unaffected by anything except the
      evidence, your common sense, and the law as I give it to
      you.” The district court did not abuse its discretion by
      declining to give Graham’s proposed instruction.

Id. at *3 (citations omitted) (quoting United States v. Farish, 535 F.3d

815, 821 (8th Cir. 2008)).

      Every other appellate court to reach the question has ruled

similarly: trial courts have discretion to grant or to decline a party’s

request to instruct the jury on racial bias.   See United States v. Díaz-

Arias, 717 F.3d 1, 23 (1st Cir. 2013) (concluding court’s instruction to be

“fair-minded   and   impartial”   encompassed     defendant’s    requested

instruction on racial prejudice); People v. Williams, 384 P.3d 1162, 1187

(Cal. 2016) (holding “trial court did not err when it refused to give

defendant’s requested instruction” to disregard race); People v. Smith, 68

P.3d 302, 341 (Cal. 2003) (noting court did not err in refusing to

“instruct the jury to disregard his and the victim’s racial backgrounds”);

State v. Roseboro, 528 S.E.2d 1, 13 (N.C. 2000) (“[T]he trial court was not

required to instruct the jurors that they should avoid giving any

consideration to racial factors . . . .”); State v. Richardson, 467 S.E.2d

685, 696 (N.C. 1996) (concluding defendant’s rights had not been

violated when district court refused to give proposed instruction on racial
                                      59

bias); see also Jahagirdar v. United States, 597 F. Supp. 2d 198, 204 (D.

Mass. 2009) (concluding defense counsel not unreasonable in failing to

request racial-bias instruction because it “might unnecessarily draw

attention to the racial differences between the defendant and the alleged

victim”).

      In Smith, the defendant, an African-American man, was convicted

of kidnapping, raping, and murdering a female Japanese exchange

student. 68 P.3d at 312–13. He requested an instruction that the jury

was to “disregard his and the victim’s racial backgrounds” in its death

penalty determination.      Id. at 341.     The California Supreme Court

affirmed the district court’s refusal to give that instruction, stating,

      [T]he instruction is not constitutionally required. Obviously,
      the jury may not consider the defendant’s or victim’s race in
      deciding whether to impose the death penalty. . . . But the
      court need not interject the issue of race itself and then tell
      the jury to disregard it, at least absent some indication the
      jury might improperly consider race.

Id. (citation omitted). The North Carolina Supreme Court similarly held

the trial court was not required to give an implicit-bias instruction,

noting the proposed instruction would “in effect, inject[] racial bias into

the jurors’ consideration of defendant’s sentence and divert[] their

attention away from the more pertinent issues of defendant’s character

and the circumstances of the crime.” Roseboro, 528 S.E.2d at 13. In

Love v. State, our court of appeals observed,

      No clear right or wrong approach to handling the issue of
      racial bias exists and even the need for courts and lawyers to
      consider this issue can be as troubling as the issue itself. It
      can project disturbing overtones when injected into the trial
      proceedings due to the subtle impression that justice in a
      court of law in this country may turn upon skin color.

543 N.W.2d 621, 624 (Iowa Ct. App. 1995).
                                    60

      In Díaz-Arias, the district court refused to provide the jury with an

instruction stating that it would be improper to consider “any personal

feelings you may have about the defendant’s race or ethnicity, or national

origin, or his or any witness’ immigration status.”        717 F.3d at 22.

Instead, the district court instructed that the jury should be “completely

fair-minded and impartial, swayed neither by prejudice, nor sympathy,

by personal likes or dislikes toward anybody involved.” Id. at 23. The

First Circuit affirmed, concluding “Díaz-Arias’ proposed instruction was a

more specific version of the court’s instruction; it merely recited the

possible forms of prejudice that a person might have . . . . The court’s

instructions effectively incorporated the essence of Díaz-Arias’ request.”

Id.

      I reach the same conclusion here. Iowa jury instructions are to be

read as a whole. Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 902

(Iowa 2015). The instructions to Plain’s jury made clear the verdict was

to be based solely on the evidence. The concept that race should play no

role in the verdict was thereby embodied in the instructions read as a

whole. The jury instructions stated,

            You shall base your verdict only upon the evidence
      and these instructions.
            Evidence is:
            1. Testimony in person or
            2. Exhibits received by the Court. You may examine
      the exhibits closely, but be careful not to alter or destroy
      them.
            3. Stipulations entered into by the parties.

Jurors were instructed to “decide the facts from the evidence” and

determine witness credibility based on race-neutral criteria, such as

“whether testimony [was] reasonable and consistent with other evidence,”

“whether . . . witness[es] ha[d] made inconsistent statements,” witness
                                     61

“appearance, conduct, age, intelligence, memory, and knowledge of the

facts,” and the witness’s “interest in the trial, their motive, candor, bias,

and prejudice.” The instructions told the jury the defendant was to be

presumed “innocent and not guilty” and that jurors must “put aside all

suspicion which might arise from the arrest, charge, or the present

situation of the defendant.” The jury was further instructed to decide the

case based on its “impartial consideration of the evidence.” Finally, the

instructions stated, “Remember, you are the judges of the facts. Your

sole duty is to find the truth and do justice.”

      We presume the jury follows the court’s instructions.         State v.

Haines, 790 N.W.2d 545, 552 (Iowa 2010). As the Supreme Court has

stated, “[T]here is no constitutional presumption of juror bias for or

against members of any particular racial or ethnic groups.”         Rosales-

Lopez v. United States, 451 U.S. 182, 190, 101 S. Ct. 1629, 1635 (1981).

      I do not question the proposition that all of us in the judicial

system—including judges, jurors, and attorneys—are subject to many

different forms of implicit bias. Racial bias may be the most persistent

form of implicit bias. But it is one thing to say that implicit bias is a

problem.   It is another thing to mandate a special jury instruction on

implicit bias as the designated solution to that problem.       In my view,

more research is needed before we substitute our judgment concerning

such an instruction for that of our trial judges.           Justice Appel’s

concurrence cites “strong scientific evidence of the existence of implicit

bias” but, at the same time, dismisses the need for “social science

evidence demonstrating utility” of an implicit-bias jury instruction. That

reasoning is incongruous. We do not look for social science to prove the

efficacy of jury instructions that simply set forth the applicable law or

elements or a claim or defense. But when social science is the basis for a
                                            62

jury instruction, as it would be for one on implicit bias, some degree of

social science support for the instruction is required. Yet no empirical

study has been cited that an implicit-bias jury instruction improves juror

decision-making. That dearth of support gives me pause.

       The district court noted the absence of a uniform jury instruction

on implicit racial bias. 14      United States District Court Judge Mark W.



       14Plain’s
               jury trial was in October 2015. The following June, the Iowa State Bar
Association Jury Instruction Committee proposed changes to Uniform Criminal Jury
Instruction 100.8 to include language concerning juror biases. The instruction now
reads,
               100.8 Consideration of Instructions. You must determine
       whether the defendant is guilty or not guilty from the evidence and the
       law in these instructions. My duty is to tell you what the law is. Your
       duty is to accept and apply this law and to decide all fact questions.
              You must consider all of the instructions together.         No one
       instruction includes all of the applicable law.
               As you consider the evidence, do not be influenced by any
       personal sympathy, bias, prejudices or emotions. Because you are
       making very important decisions in this case, you are to evaluate the
       evidence carefully and avoid decisions based on generalizations, gut
       feelings, prejudices, sympathies, stereotypes, or biases.    The law
       demands that you return a just verdict, based solely on the evidence,
       your reason and common sense, and these instructions. As jurors, your
       sole duty is to find the truth and do justice.
Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 100.8 (2016). A similar change
was made to Uniform Civil Jury Instruction 100.2 which now reads,
               100.2 Duties of Judge and Jury, Instructions as Whole. My
       duty is to tell you what the law is. Your duty is to accept and apply this
       law.
              You must consider all of the instructions together because no one
       instruction includes all of the applicable law.
               The order in which I give these instructions is not important.
               Your duty is to decide all fact questions.
               As you consider the evidence, do not be influenced by any
       personal sympathy, bias, prejudices or emotions. Because you are
       making very important decisions in this case, you are to evaluate the
       evidence carefully and avoid decisions based on generalizations, gut
       feelings, prejudices, sympathies, stereotypes, or biases.    The law
       demands that you return a just verdict, based solely on the evidence,
                                          63

Bennett has thoroughly studied ways to address implicit biases and uses

this jury instruction before opening statements in all his civil and

criminal trials:

       As we discussed in jury selection, growing scientific research
       indicates each one of us has “implicit biases,” or hidden
       feelings, perceptions, fears and stereotypes in our
       subconscious. These hidden thoughts often impact how we
       remember what we see and hear and how we make
       important decisions. While it is difficult to control one’s
       subconscious thoughts, being aware of these hidden biases
       can help counteract them.         As a result, I ask you to
       recognize that all of us may be affected by implicit biases in
       the decisions that we make. Because you are making very
       important decisions in this case, I strongly encourage you to
       critically evaluate the evidence and resist any urge to reach a
       verdict influenced by stereotypes, generalizations, or implicit
       biases.

Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury

Selection: The Problems of Judge-Dominated Voir Dire, The Failed Promise

of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 169 n.85

(2010); see also Cynthia Lee, Making Race Salient: Trayvon Martin and

Implicit Bias in a Not Yet Post-Racial Society, 91 N.C. L. Rev. 1555, 1598–

99 (2013) (collecting examples of model or pattern jury instructions on

implicit bias).
       As Justice Appel concedes, the studies are inconclusive.                One

scholar cautioned that “instructing jurors to ignore the defendant’s race

might exacerbate the effect of race upon guilt attribution.” Sheri Lynn

Johnson, Black Innocence and the White Jury, 83 Mich. L. Rev. 1611,

1679 (1985) (noting that “because the process involved is probably

unconscious for most jurors, instructing them to put racial prejudice out

__________________________
       your reason and common sense, and these instructions. As jurors, your
       sole duty is to find the truth and do justice.
Iowa State Bar Ass’n, Iowa Civil Jury Instruction 100.2 (2016).
                                     64

of their minds or to ignore the defendant’s race in assessing the evidence

is unlikely to be productive”); see also Ashok Chandran, Color in the

“Black Box”: Addressing Racism in Juror Deliberations, 5 Colum. J. Race

& L. 28, 43 (2015) (“The effects of bringing racial bias up are

unpredictable at best; often, such questioning will simply draw more

attention to the defendant’s race or ethnicity, increasing the effect of race

on the trial.”).

       “[I]f handled inappropriately, bias-reduction efforts can backfire.”

Anna Roberts, Reclaiming the Importance of the Defendant’s Testimony:

Prior Conviction Impeachment and the Fight Against Implicit Stereotyping,

83 U. Chi. L. Rev. 835, 872 & n.230 (2016) (surveying studies). Other

studies suggest that implicit-bias instructions may be effective because

they “continue[] the process of awareness-raising that [is] started during

the voir dire process.”    Jonathan A. Rapping, Implicitly Unjust: How

Defenders Can Affect Systemic Racist Assumptions, 16 N.Y.U. J. Legis. &

Pub. Pol’y 999, 1040 (2013); see also Elizabeth Ingriselli, Mitigating

Jurors’ Racial Biases: The Effects of Content and Timing of Jury

Instructions, 124 Yale L.J. 1690, 1730 (2015) (finding that combination of

race salience and egalitarian instructions may reduce bias); Casey

Reynolds, Implicit Bias and the Problem of Certainty in the Criminal

Standard of Proof, 37 L. & Psychol. Rev. 229, 243 (2013) (suggesting

people can “compensate for implicit bias when they are aware of it” by

purposely being more fairminded); Samuel R. Sommers & Phoebe C.

Ellsworth, White Juror Bias: An Investigation of Prejudice Against Black

Defendants in the American Courtroom, 7 Psychol. Pub. Pol’y & L. 201,

220 (2001) (“White jurors are more likely to demonstrate racial prejudice

in cases without salient racial issues.”). Finally, studies have noted the

dearth of empirical work showing that implicit-bias instructions help.
                                       65

See Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev.

1124, 1184 (2012) (“That said, no experiment has yet been done on

whether jury instructions specifically targeted at implicit bias are

effective in real-world settings.”).   In fact, the first published study to

investigate the effects of jury instructions failed to demonstrate any

significant influence on jurors’ verdict preferences. Jennifer K. Elek &

Paula Hannaford-Agor, Nat’l Ctr. for State Cts., Can Explicit Instruction

Reduce Expressions of Implicit Bias? New Questions Following a Test of a

Specialized Jury Instruction 14 (Apr. 2014) (finding instructions on

implicit bias had “no significant effects . . . on judgments of guilt,

confidence, strength of the prosecution’s evidence, or sentence length”).

      In 2015, the American Bar Association began a project with the

intent of developing a jury instruction on implicit             bias as its

“centerpiece.” Am. Bar Ass’n, Achieving an Impartial Jury (AIJ) Toolbox

15 (2015) [hereinafter AIJ Toolbox].        However, it ultimately concluded

that “the drafting of such language was challenging” and “fundamental

questions were raised as to whether a judge’s highlighting of the notion

of implicit bias would do more harm than good.” Id. In the end, the ABA

simply offered a “toolbox,” that is, “a variety of approaches . . . as

possibilities for judges desiring to use this kind of instruction.” Id. at 16.

In other words, far from mandating any particular instruction, as the

special concurrences would, the ABA supports leaving the matter to

individual judges. I agree.

      To illustrate the lack of consensus as to content and timing even

among the supporters of a mandatory instruction, consider the present

case. Here, defense counsel asked for an instruction after the close of

evidence that directly mentions race, while Justice Appel’s special

concurrence would require some instruction to be given during jury
                                   66

selection, and Judge Bennett gives his instruction, which does not

mention race, before opening statements. See Bennett, 4 Harv. L. & Pol’y

Rev. at 169 n.85.

      We have required all Iowa judges to undergo implicit-bias training

and testing. But I would not require courts to give an implicit-bias jury

instruction without further research and study.       For now, like the

majority, I leave it to the trial judge’s discretion whether to instruct

separately on implicit bias.

      Mansfield and Zager, JJ., join this special concurrence.
                                      67

                                                     #16–0061, State v. Plain

MANSFIELD, Justice (concurring specially).

      I generally agree with the court’s well-reasoned opinion, but write

separately to raise one area of disagreement.

      In Part III.D.1, the court concludes that “the prosecutor erred

during closing argument in persistently using the term ‘victim’ to refer to

the complaining witness.”     This is dictum, because in Part III.D.2 the

court goes on to find no prejudice from the prosecutorial error.         The

court could have omitted Part III.D.1 and simply have assumed an error

occurred for purposes of its opinion.      However, because the court has

seemingly established a new rule for closing arguments in criminal cases

in Iowa, I want to register a different view.

      I think whether prosecutors can use the term “victim” in closing

argument should be left to the individual judgment of trial judges

running their own courtrooms. This is not an area in need of a statewide

rule promulgated by the Iowa Supreme Court.

      Here the prosecutor chose to use the terms “defendant” and

“victim” instead of actual names during closing argument.           After the

nineteenth use of the term “victim,” defense counsel objected: “Your

Honor, I’m objecting to the State’s repeated reference to Mr. Gray as the

victim in this case. It’s the jury’s decision.” At this point, the district

court overruled the objection. The prosecutor continued to use the term.

No further objection was made.

      Note defense counsel’s objection.         She didn’t complain that the

prosecutor was going outside the bounds of fair argument. Instead she

said, “It’s the jury’s decision.” Experienced lawyers make these kinds of

objections not because they expect to be upheld by the trial judge, but

because they want to make sure the jury understands what is going on—
                                      68

i.e., an opponent’s repetitive and even ham-handed use of a rhetorical

device. The objection does the job whether or not it is sustained by the

district court.

      Policing this stuff ought to be the job of our trial courts, not us. I

would have no problem with a trial court that forbid the use of the term

“victim” in closing argument. Such a ruling would eliminate a potentially

loaded term and would not deprive the prosecutor of the ability to

vigorously argue the evidence. I also would have no problem with a trial

court that allowed use of the term “victim”.          It is, after all, an

extrapolation from the evidence. Additionally, if overused, the term can

become tiresome and counterproductive.          Further, as I’ve already

explained, experienced defense lawyers have ways of defusing this sort of

thing, if it needs to be defused.

      My concern arises when we turn this type of matter into a serious

appellate issue. The court correctly says that context matters when it

comes to use of the term “victim.” But it then proceeds to blur context in

its analysis. There is a difference, of course, between a court’s use of the

term in jury instructions and a prosecutor’s use of the term in closing

argument. See, e.g., Talkington v. State, 682 S.W.2d 674, 674 (Tex. Ct.

App. 1984) (“The court, in its charge, referred to the complainant as the

‘victim.’ ”). Argument is, after all, argument. As in other jury trials, the

jury in this case was instructed that the closing arguments of counsel

are not themselves evidence.        So I would focus on closing argument

precedents.

      Here, appellate court viewpoints diverge, although I have yet to find

a conviction being reversed because the prosecutor used the word

“victim” in closing argument. See State v. Warholic, 897 A.2d 569, 584

(Conn. 2006) (concluding it was not improper for the State to refer to the
                                    69

complainant as the victim during its closing remarks because “the jury

was likely to understand that the state’s identification of the complainant

as the victim reflected the state’s contention that, based on the state’s

evidence, the complainant was the victim of the alleged crimes”); State v.

Albino, 24 A.3d 602, 617, 626 (Conn. App. Ct. 2011) (finding that the

prosecutor’s   twenty-seven   references   to   “the   victim”   during   the

evidentiary phase of the trial, combined with use of the term throughout

closing argument, was improper but not prejudicial such as to warrant a

new trial).

      Some appellate courts have stated that the term “victim” during

closing argument is not objectionable. See United States v. Gibson, 690

F.2d 697, 703 (9th Cir. 1982) (“[T]he prosecutor’s use of the word ‘victim’

was fair comment on the evidence.”); People v. Shendi, No. C064289,

2011 WL 521173, at *5 (Cal. Ct. App. Feb. 15, 2011) (“[T]he prosecutor’s

characterization of Galindo was not improper because it was based on

evidence within the record. Indeed, the fact that the prosecution charged

defendant necessarily implies the prosecutor believed him to be guilty

and believed that Galindo was the ‘victim’ of defendant’s crime.”); People

v. Lampe, No. 326660, 2016 WL 3452161, at *7 (Mich. Ct. App. June 23,

2016) (finding no misconduct in prosecutor’s use of the term forty-eight

times during closing argument because “victim” does not necessarily

mean victim of a crime).

      To my mind, this body of precedent confirms that we should not be

devoting appellate resources to this issue. Instead, we should be leaving

supervision where it has been until now—in the hands of our able trial

judges.

      Consistent with this approach, when a particular closing argument

passes trial judge scrutiny and reaches us on appeal, we have said that a
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prosecutor has “considerable latitude.” State v. Carey, 709 N.W.2d 547,

555 (Iowa 2006). In effect, this means the lawyer “may draw conclusions

and argue permissible inferences which reasonably flow from the

evidence presented.” Id. at 554 (quoting State v. Thornton, 498 N.W.2d

670, 676 (Iowa 1993)). In Carey, we found no error when the prosecutor

implied during closing argument that the defendant would have

assaulted a police officer if only he had a knife, that the defendant

should have sent a threatening letter to a witness in order to save his

case, and then asked the jury whether the defendant was playing

“games” with them due to his inconsistent testimony. Id. at 555. We

said that the comments, “while sarcastic and snide, were based on a

legitimate assessment of the evidence.” Id. Carey is a much closer case.

      Moreover, the record in this case shows that the prosecutor made

no reference to Randy Gray as the victim until after the jury had heard

his testimony in full. In her opening statement, the prosecutor used the

terms “Mr. Gray” and “Mr. Plain” to identify the principals. Only after

Gray’s testimony did she substitute the terms “victim” and “defendant” in

the closing.

      One final note. A legitimate concern has been expressed that our

legal culture has been too willing to devictimize crimes, particularly

crimes of sexual violence.      See Claudia Bayliff, Project Attorney, Nat’l

Judicial Educ. Program, Legal Momentum, Presentation at the Iowa

Judges Fall Conference: Raped or “Seduced”?         How Language Impacts

Perceptions of Sexual Violence (Oct. 28, 2015) (expressing the need to

“[r]eclaim ‘victim’ ”).   In a criminal case of sexual assault, some have

stated the view that “the term ‘victim’ will typically be used,” and “the

phase ‘alleged victim’ . . . must be justified by unique circumstances.”

Id. (resource materials at 27). This further highlights the need for trial
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judge discretion rather than supreme court across-the-board decisional

rulemaking.

      For these reasons, I concur except as to Part III.D.1 of the court’s

opinion.

      Waterman, J., joins this special concurrence.
