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Bar News - January 20, 2016


Criminal Law: Judges and Lawyers Can Work Together to Address Implicit Bias

By:
Implicit bias: “the bias in judgment and/or behavior that results from subtle cognitive processes (e.g., implicit attitudes and implicit stereotypes) that often operate at a level below conscious awareness and without intentional control.”
– National Center for State Courts

After many years of lobbying and litigating, lawyers in criminal cases in state courts now have attorney-conducted voir dire as a tool to use in their efforts to obtain a fair and unbiased jury. In preparing for a recent continuing legal education seminar on this subject, I found research suggesting that judges can and should continue to play a critical role in the process of ferreting out improper bias and prejudice.

One particular judge is at the forefront of addressing bias in the courtroom. As this article will discuss, his example shows that judges are uniquely suited to play the role of authority figure during the jury selection process, in a way that can inspire jurors to be conscious of their biases and prejudices and, we hope, put them aside.

One vexing challenge to all of those in litigation continues to be selecting a jury that is not influenced by unconscious or implicit bias. The science of implicit bias is of particular concern for those who work in the field of criminal justice, as persons of color are disproportionally represented in the criminal justice system.

The National Center for State Courts (NCSC) defines implicit bias as, “the bias in judgment and/or behavior that results from subtle cognitive processes (e.g., implicit attitudes and implicit stereotypes) that often operate at a level below conscious awareness and without intentional control.” These biases predominantly involve race, gender and ethnicity. (The science and research on implicit bias is too voluminous to adequately summarize here, but NCSC has a very good summary available on its website).

An example of how implicit bias can impact a criminal trial is in a self-defense case. In such a case, where the defendant is African-American, there is a high risk that the jury will make their decision of guilt or innocence based on implicit racial bias. Several studies have shown that mock jurors are more likely to implicitly associate black Americans with weapons, violence and being prone to criminality.

One particular study showed that when asked to recall facts from a fictional story, mock jurors were significantly more likely to recall the fictional defendant as being aggressive when he was African-American then when he was Caucasian or Hawaiian. See “Implicitly Unjust: How Defenders Can Affect Systemic Racist Assumptions,” Legislation and Public Policy (2013).

The challenge for both trial attorneys and judges is that asking prospective jurors about bias presents two problems. Admitting to racial or ethnic bias has a negative connotation for most people. Nobody wants to be seen as racist. The second problem with the jury selection process is that the science of implicit bias shows that just asking jurors about their biases may be ineffective, because many of these biases operate at a subconscious level, so the jurors may not be aware they exist.

Recognizing Implicit Bias

Judge Mark Bennett has developed a national reputation in addressing these issues. Bennett is a United States District Court judge in the Northern District of Iowa. In his 2010 Harvard Law and Policy Review article, “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,” he explains how his interest in the science of implicit bias began with his taking the implicit bias test at the Harvard University website, www.implicit.harvard.edu. Bennett expected that, because of his career specializing in civil rights and employment discrimination, he would “pass the test with flying colors.” He did not.

After this experience, Bennett became a frequent presenter and writer on the topic of implicit bias and how it affects all aspects of the legal system. His research on the subject lead him to the conclusion that attorney-conducted voir dire is better suited to uncover racial and ethnic bias than judge-conducted voir dire. He reached this conclusion because, in his experience, potential jurors tend to give more socially acceptable answers to questions about bias to judges than they do to attorneys.

Although the judge’s role as the authority figure in the courtroom may inhibit potential jurors from speaking freely about their biases, the judge can be very important in educating the jury about implicit bias and then instructing the jurors to try to set aside any bias. Bennett has created a PowerPoint presentation on the subject of implicit bias, which he shows to prospective jurors before the attorneys begin to question the panel. He does this because of research demonstrating that making people aware of implicit bias can mitigate the effects of the bias.

Another important way a judge can help address implicit bias is with jury instructions. Bennett gives the following jury instruction in all civil and criminal jury trials in his court: “As we discussed in jury selection, everyone, including me, has feelings, presumptions, fears and stereotypes, that is ‘implicit biases,’ that we may not be aware of. These thoughts can impact what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and resist jumping to conclusions based upon personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes or bias.” You can see Judge Bennett’s PowerPoint on the subject at www.americanbar.org.

Having the person in the black robe admit to the jurors that he has his own biases can go a long way toward getting jurors to thoughtfully examine their own attitudes and stereotypes. Bennett’s experiences and the research on implicit bias show that both the trial attorney and the judge play important roles in the continuing effort to select a fair and unbiased jury.


Donna J. Brown

Donna J. Brown is a partner at Wadleigh, Starr and Peters where she practices criminal law. Donna is also an adjunct professor at UNH School of Law and teaches trial advocacy with the Daniel Webster Scholars Program.

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