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.

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...

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...

Our knowledge of the workings of the mind has grown rapidly in recent decades.

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 (

2021

Article published in the Michigan State Law Review.

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

Social Science Research Network, 2017

for their thoughtful comments and editorial suggestions. systemic triage 863 book review contents introduction i. racism in practice A. Policing Racial Boundaries B. Culture and the Race-Blind Code C. Limitations ii. systemic triage and its racialized consequences A. Implicit Racial Bias B. Systemic Triage C. Implicit Bias Under Conditions of Systemic Triage iii. recommended remedies A. Problems with Court Watching B. Individual, Institutional, and Systemic Solutions conclusion the yale law journal 126:864 2017 8. Id. at 9.

International Journal for Court Administration

The New York State Court System (NYSCS), like other court systems, faces diverse issues regarding race, bias, diversity, and inclusion, as the judicial interpretation of justice sometimes differs from the societal interpretation. What the courts interpret as justice is not necessarily what some societies understand as justice. A gap can lie between the courts and society regarding the court's roles in administering justice to eliminate social vices like implicit bias, racial, sexual, cultural, or any form of discrimination/stereotypes. There can, similarly, be a misconception about just and fair-or 'meaningful justice' as the courts define it. 1 George Floyd's death heightened national outcries, going beyond the United States, focused on racial bias and discrimination, diversity, and inclusion. The arrest, prosecution, and conviction of principal actors in the killing of George Floyd intensified divisions between those seeing him as a victim of police brutality and those focusing on his prior criminal history and the incident that led to his death, namely the alleged passing of a false $20 note in a local store transaction. This difference in perceptions of 'right' and 'wrong' according to notions of justice could be seen as raising social misconceptions about courts. It could lead to a loss of public/society's confidence in the court system and judges' roles in society, which widens the gap between courts and society.

Despite the promise of Gideon, providing "the guiding hand of counsel" to indigent defendants remains unmanageable, largely because the nation's public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defenders must engage in triage, deciding which cases deserve attention and which do not. Although scholars have recognized the need to develop standards for making these difficult judgments, they have paid little attention to how implicit, i.e., unconscious, biases may affect those decisions. There is reason to suspect that unconscious biases will influence public defender decisionmaking due to generations of racial stereotypes specific to stigmatized groups and crime. This Essay urges legal scholars and practitioners to consider how implicit biases may influence the rationing of defense entitlements and suggests ways to safeguard against the effects of these unconscious forces.