Implicit bias in the courtroom (original) (raw)

[PDF]Implicit Bias in the Courtroom

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with behavioral realism. The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the Article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.

Addressing Implicit Bias in the Courts

2013

1. The Open Society Institute, the State Justice Institute, and the National Center for State Courts funded the preparation of this article. The views expressed are those of the authors and do not necessarily reflect the views of the funding organizations. This article summarizes the National Center for State Courts’ project on implicit bias and judicial education. For the full report of the project, see PAMELA M. CASEY, ROGER K. WARREN, FRED L. CHEESMAN II & JENNIFER K. ELEK, HELPING COURTS ADDRESS IMPLICIT BIAS: RESOURCES FOR EDUCATION (2012) (hereinafter HELPING COURTS), available at http://www.ncsc.org/\~/media/Files/PDF/ Topics/Gender%20and%20Racial%20Fairness/IB_report_033012. ashx. 2. Various state-court reports of racial fairness task forces and commissions can be found through the National Center for State Courts’ website at http://www.ncsconline.org/Projects\_Initiatives/ REFI/SearchState.asp. To access the National Center for State Courts’ Interactive Database of State Prog...

A Matter of Fit: The Law of Discrimination and the Science of Implicit Bias

Introduction Integrating the insights gleaned from scientific research into the framework of the law requires courts to appreciate the empirical complexities of the former and the analytical details of the latter. This is no simple feat. It requires juxtaposing the lessons and limitations of science with the demands of the law. This feat has proved particularly nettlesome—or, at least, controversial—in regard to the degree to which scientific research on implicit bias, or stereotypes, helps discrimination claims under Title VII. 1 This subject presents a wide cross section of the challenges endemic to the connection between law and science, including ambiguity regarding the meaning of the law, inherent limitations in studying the subject of implicit bias, enigmatic interpretations of research data, and imperfect correspondence between the reach of science and the precepts of the law. A fair evaluation of the relevance of research on implicit bias demands a clear exposition of the la...

Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test

For many legal scholars, startling scientific evidence of implicit racial bias, including the now famous Implicit Association Test (IAT), have revealed a truth about racial discrimination in America that had previously been difficult to prove. Yet despite commentators’ progress in considering how the law should respond to this new evidence of racial bias, two challenges have continued to limit legal scholarship on implicit bias from achieving its full potential. First, empirical social science on implicit bias has rarely focused on the law. For example, prior to the study presented in this article, no IATs had been designed specifically to test law-related hypotheses. And second, legal scholarship on implicit bias has tended to maintain a narrow substantive focus, often considering discrimination in the workplace and in policy-making, but rarely considering racial biases in other areas of law. The question, for example, of whether jury verdicts in criminal trials are tainted by impl...

Racial Bias in Juridic Judgment at Private and Public Levels

Journal of Applied Social Psychology, 2006

Mock jurors (college students and prospective jurors) made individual decisions regarding liability and damages (before and after deliberation) in response to a case of sexual harassment. There were no significant differences in damage awards from college students and prospective jurors. There was evidence of racial bias among White mock jurors against plaintiffs who accused a Black supervisor of sexual harassment: Lower damages were recommended for plaintiffs who accepted an offer to meet for drinks in a Black supervisor's room than for plaintiffs who accepted the same offer from a White supervisor. There was also evidence of racial bias among White mock jurors against Black plaintiffs: Lower damages were recommended for Black plaintiffs than for White plaintiffs. These effects were present in the individual judgments of college students and prospective jurors. However, these forms of racial bias did not carry over into the decisions made by juries comprised of college students or prospective jurors. Subtle racial biases operating primarily at a subconscious level may get washed out in the complex task of coming to agreement on an appropriate award. The effects of manipulated variables on damage awards probably are overestimated in general in mock juror studies that do not examine group verdicts. Public opinion surveys paint a rosier picture of the attitudes of Whites toward Blacks than in the past (Schuman, Steeh, Bobo, & Krysan, 1997). Nevertheless, discrimination against Blacks still prevails in many facets of life that have a negative impact on quality of life (Sidanius & Pratto, 1999), and a substantial proportion of Whites still may be opposed to full racial equality (

(Re)Forming the Jury: Detection and Disinfection of Implicit Juror Bias

Connecticut Law Review, 2012

This Article investigates whether one of the most intractable problems in trial procedure can be ameliorated through the use of one of the most striking discoveries in recent social science. The intractable problem is selecting a fair jury. Current doctrine fails to address the fact that jurors harbor not only explicit, or conscious, bias, but also implicit, or unconscious, bias. The discovery is the Implicit Association Test (“IAT”), an online test that aims to reveal implicit bias. This Article conducts the first comparison of proposals that the IAT be used to address jury bias. They fall into two groups. The first group would use the IAT to “screen” potential jurors for implicit bias; the second group would use the IAT to educate jurors about implicit bias. These proposals merit deeper consideration. Implicit bias is pervasive, and affects crucial juror functions: evaluation of evidence, recall of facts, and judgment of guilt. Juries are generally told nothing about implicit bias. The judiciary has expressed concern about implicit juror bias, and sought help from the academy in addressing the problem. This Article provides what these two groups of proposals lack: critique and context. It shows that using the IAT to screen jurors is misguided. However, the Article contends that the educational project has merit because implicit bias can be countered through knowledge of its existence and motivation to address it. To refine the project, this Article identifies two vital issues that distinguish the proposals: when jurors should learn about implicit bias, and how they should learn about it. On the issue of when, this Article argues that the education should begin while the jurors are still being oriented. Orientation is not only universal, but, as research into “priming” and “framing” suggests, a crucial period for the forming of first impressions. On the issue of how, this Article argues that those proposals that would include the jurors taking an IAT are superior to those that would simply instruct jurors on what the IAT shows. In an area fraught with denial, mere instruction would likely be dismissed as irrelevant. This Article uses pedagogical theory to show that experiential learning about bias is more likely to be effective. Finally, this Article brings when and how together, proposing a model that would include the use of the IAT as an experiential learning tool during orientation. This model would harness the civic energy of jurors to an educational purpose, rather than letting it morph into boredom; by putting jurors in an active mindset, it would enhance their satisfaction with the process, and their ability to perform optimally. As for potential jurors who are never selected, their participation would honor the long-standing educational function of jury service.

Forgotten Racial Equality: Implicit Bias, Decision-Making and Misremembering

bepress Legal Series, 2006

In this Article, I claim that judges and jurors unknowingly misremember case facts in racially biased ways. Drawing upon studies from implicit social cognition, human memory research, and legal decisionmaking, I argue that implicit racial biases affect the way judges and jurors encode, store, and recall relevant case facts. I then explain how this phenomenon perpetuates racial bias in case outcomes. To test the hypothesis that judges and jurors misremember case facts in racially biased ways, I conducted an empirical study in which participants were asked to recall facts of stories they had read only minutes earlier. Results of the study confirmed the hypothesis that participants remembered and misremembered legally relevant facts in racially biased ways. For example, participants who read about an African-American story character were significantly more likely to remember aggressive facts from the story than participants who read about a Caucasian story character. Other results indicated that these racial memory biases were not related to explicit racial preferences. The presence and power of implicit memory bias in legal decisionmaking raises concerns about the legal system's ability to achieve social justice. Multifaceted responses, including debiasing techniques and cultural change efforts, are needed. Debiasing

What is Wrong with Implicit Bias? - An Investigation of the Moral Problems with Implicit Bias

2015

Implicit Bias is the automatic and unconscious tendency to associate certain traits with members of particular groups, which affect judgements and/or interactions with members from the denoted group. In philosophy the concept of Implicit Bias has often been treated as a thick normative (negative) concept, which I refute in my paper. My suggestion is that Implicit Bias, when it is wrong, is wrong because of wrongful discrimination.