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Implicit Bias in the Law

In the Courts

Download The Lens of Implicit Bias (pdf)

Many professional legal associations offer training and publications about implicit bias, including the National Counsel for Juvenile and Family Court Judges, The National Center for State Courts, and the American Bar Association.

Jury Selection

Implicit bias can be found throughout many areas of the law, but it has perhaps been discussed in legal literature most often in the area of jury selection.  The Supreme Court decision Batson v. Kentucky in 1986 addressed the question of whether the prosecutor's use of peremptory challenges to exclude the four black from the jury violated Batson's sixth and Fourteenth Amendment rights to a fair jury trial and his Fourteenth Amendment rights to equal protection of the laws. Justice Powell held that racial discrimination in the selection of jurors not only deprives the accused of important rights during a trial, but also is devastating to the community at large because it "undermines public confidence in the fairness of our system of justice."  Although the issue in Batson dealt with explicit bias, it is still important in understanding the seriousness of bias in jury selection and its potential impact on the outcomes.

Because implicit bias has not been recognized by the courts, "it cannot yet serve as an appropriate basis for challenging jurors or objections under Batson." 1    Instead, the courts are limited to, and active in, educating lawyers and judges to recognize potential implicit bias in jury selection.

Although generally courts are not permitted to examine jury deliberations or juror motivations, in an opinion decided on March 6, 2017, the Supreme Court held that "where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee."  Thus, the Court continues to look only at overt expressions of racism as a test for constitutional rights:  “For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.”  Pena-Rodriguez v. Colorado, slip op. at 17.

For additional information, see:

  1. § 22:6.Explicit and implicit bias, Jury Selection Strategy and Science § 22:6 (3d ed.)
  2. Anna Roberts, (Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias, 44 Conn. L. Rev. 827 (2012)
  3. Judge 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, (2010)

Attorneys and Judges

Attorney bias can impact much more than simply jury selection.  Prosecutors, for example, have a great deal of discretion in how they manage cases.  For example, they can choose to offer a plea bargain, contest bail, and even whether and what crime to charge for.  Implicit bias can influence each of these decisions, potentially having a significant impact on the lives of defendants.  

Judicial bias is quite real.  Although judges are supposed to be impartial, as they promise in their oath, but they are human and do harbor implicit biases influenced by their identity and experiences.  There have been numerous studies on the impartiality of judges.  Some findings show that trial court judges "rely extensively on intuition, more than deliberative judging, in deciding matters before the bench." 1  This provides more opportunities for the judges to apply their implicit biases to the matters at hand. 

For additional information, see: 

       Justice Michael B. Hyman, Implicit Bias in the Courts, 102 Ill. B.J. 40, 44 (2014)

Witnesses

Although there are efforts presently in place to educate attorneys and judges on their own implicit biases, there is less of a focus on identifying or recognizing potential implicit bias among witnesses.  Generally, the reliability of the witness is not questioned without intent or purpose behind the bias.

However, there has been research detailing the unreliability of eyewitness testimony, particularly as to cross-racial identification.  Whether expert testimony on this issue should be admitted, and whether jury instructions on point should be given, are matters generally left to the discretion of the trial judge.  In 2008, the American Bar Association approved a resolution urging courts "to recognize that in particular cases cross-racial identification may increase the risk of erroneous conviction" and that expert testimony should be admitted and jury instructions given when appropriate.

For additional information, see:

  1. Laura Connelly, Cross-racial identifications: solutions to the "they all look alike" effect, 21 Mich. J.of Race & L. 125 (2015).
  2. Taki V. Flevaris & Ellie F. Chapman, Cross-racial misidentification: a call to action in Washington State and beyond, 38 Seattle Univ. L. Rev. 861 (2015).