Attorneys, judges and jurors all want to see themselves as fair, equitable, and rational, yet studies show that despite our best intentions none of us are free from bias. Implicit bias refers to unconsciously held biases that do not necessarily reflect our conscious beliefs.
Because implicit bias is subconscious, even people who consciously abhor discrimination can unconsciously be influenced by implicit bias. Studies show that implicit bias can affect how judges make decisions, how attorneys decide who to leave on juries and how jurors decide what testimony to believe or disregard.
The impact of implicit bias on decision making has been shown in numerous studies. For example:
- Researchers sent identical resumes to employers and found a 50% drop in interview callback rates for the applicants when they changed the names on the resumes from Emily and Greg (signaling European ancestry) to Lakisha and Jamal (signaling African ancestry).
- Study participants shown photos of black and white American men with neutral facial expressions perceived the black face to be more hostile than the white face, and the participant’s implicit bias as measured by the IAT correlated to the degree of hostility the participant perceived.
- Partners reviewing the identical third-year associate memorandum rated the memorandum higher and found fewer errors when the associate was identified as white than black.
The important takeaway is not that implicit bias is bad or that people who have bias are bad people. We all have bias. Part of our job as trial attorneys and judges is to recognize and address racial justice issues whenever and wherever they arise.
For example, within the context of a jury trial, it is critically important to recognize the role that implicit racial bias may play within the minds of otherwise well intentioned jurors. But how do you uncover from someone a subconscious (implied) bias that the person’s conscious mind does not recognize or even realize exists. As Justice Sotamayor wrote: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race….”
The following are suggestions on how to introduce the issue of implicit racial bias to prospective jurors along with 15 carefully crafted voir dire questions.
IF RACE IS OR MAY BE AN ISSUE IN YOUR TRIAL CONSIDER THE FOLLOWING:
During voir dire you have the right to question jurors concerning their beliefs and attitudes on race and racial bias. Start with introducing the issue of racial bias to the jurors and then try to get them to talk about it. Make sure to link questions about race to your case. The following statement to the jury panel and sample voir dire questions are a good starting point.
NOTE: Some attorneys may prefer to have the judge address the issue of racial bias with the jury panel by asking all or some of the following race related questions. All voir dire issues (including the racial bias statement below) should be discussed with the judge during your pretrial conference prior to commencement of trial.
INTRODUCING THE ISSUE OF RACIAL BIAS TO THE JURY PANEL: Ladies and gentlemen, despite the many differences in our lives and backgrounds, we all want to see ourselves as fair, equitable, and rational human beings, yet studies show that despite our best intentions none of us are free from bias. Implicit racial bias refers to unconsciously held biases that do not necessarily reflect our conscious beliefs. Because implicit bias is subconscious, even people who consciously abhor discrimination can unconsciously be influenced by implicit bias. Implicit bias is developed over the course of a lifetime through exposure to direct and indirect messages. Studies show that implicit bias can affect how we all make important decisions in our lives. Please keep that in mind as you answer the following questions
(Note: the following questions can also be found in the voir dire section of the Criminal Jury Trial Judges Manual):
- Please tell us the type of contacts you have had with Blacks/Asians/Native Americans/Hispanics
- Do you work with any Blacks/ Natives Americans/ Asians?
- Describe work setting i.e. large factory small office
- If so, do you socialize with them at work? Coffee breaks, lunch?
- Socialize with them outside of work? If so, types of activities?
- Have they been in your home? Have you been in their home?
- Do you have kids? Are they in school?
- Are your kid’s friends with any Blacks/Native Americans/ Asians in school?
- Have your kids’ minority friends ever been in your house?
- Have your kids ever been in their minority friend’s home?
- Do Blacks/ Native Americans/ Asians live in your neighborhood?
- Do you have any contact with them?
- Ever been in their house? They ever been in your house?
- Do your kids have any contact with them? Do their kids have any contact with you?
- Are you friends with them?
- Are their kids & your kids friends?
- Any Blacks/ Native Americans/ Asians in your church?
- If so, describe types of contacts you have with them?
- When you were growing up were there any Blacks/ Native Americans/ Asians in your neighborhood?
- What kind of relationship did you have with them?
- Describe activities you would do with them?
- They ever in your home? You ever in their home?
- Ever date Black/ Native American/ Asian?
- If yes, how did your parents feel about that?
- Have your children ever dated Black/ Native American/ Asian?
- If yes, how did you feel about that?
- If no, how would you feel about your child dating a Black/ Native American/ Asian?
- Have you or anyone close to you ever been the victim of a crime?
- Do you know the race/ethnicity of the person who committed that crime?
- If yes, is there anything about the race of the person who committed that crime that would make it difficult for you to be a juror in this case?
- Race can have no part in your deliberation and decision on the guilt or innocence of the Defendant. Do you understand and agree with that?
- Is there anything about the race of the Defendant in this case that would make it difficult for you to be a juror in this case?
JURY TRIAL REFERENCE TOOLS: For a “Complete Step-By-Step Guide from the Beginning of Trial through the Return of Verdict” go to the Criminal Jury Trial Judges Manual. If during voir dire the state or defense makes a peremptory strike on the basis of race or gender, every trial attorney (and judge) MUST be familiar with the 3 step BATSON challenge process. See Judicial Training Update “Jury Selection ‘Batson’ Challenge”. To access all past judicial training updates and the Judicial Resource Library, go to the Minnesota Judicial Training & Education Blog.
IMPLICIT BIAS TEST: The most widely recognized test of implicit bias is the Implicit Association Test (IAT) conducted by Project Implicit a research website operated by Harvard University, Washington University, and the University of Virginia.
September 24, 2017
Alan F. Pendleton (Former District Court Judge)
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