First, Do No Harm - aja.ncsc.dni.us

1 Footnotes1. ABA MODELCODE OFJUD. CONDUCTR. (2011). Twenty-sevenstates have adopted the language of Rule or substantially sim-ilar language. Over the past three decades, court leaders across thecountry have taken aggressive steps to confront racialbias in the courts. Recent efforts include in-depthjudicial education and training about how an individual sunconscious attitudes (including culturally learned associa-tions or generalizations that we tend to think of as stereo-types) introduce unjustified assumptions about other peopleand related evidence that can distort a person s judgment andbehavior.

2 This phenomenon is now referred to as implicit biasto differentiate it from explicit or intentional programs focus on raising judicial awareness aboutimplicit bias and introducing techniques that judges may useto help minimize the impact of implicit bias on judicial deci-sion making. Despite high levels of interest and genuine commitment toracial fairness in the justice system, disparate treatment of racialminorities persists and pervades all stages of the criminal jus-tice process. Jury trials are a particularly troubling componentof the justice system with regard to the potential for racial have extremely limited opportunities to educate jurorsabout the pernicious effects of complex psychological phenom-ena like implicit bias and how these implicit forms of bias maydistort jurors interpretation of trial evidence.

3 Jurors are ran-domly selected from the local community. Other than statutoryqualifications such as citizenship, age (adults 18 or older),and the ability to speak and understand English, state courtshave no educational, occupational, or personal experiencerequirements to be eligible for jury service. Most jurors in thiscountry serve only for the duration of the trial (typically two tothree days) and then are released from service. No time is avail-able during this short period to provide the type of in-deptheducation on implicit bias that judges and court staff mayreceive.

4 Instead, judges and lawyers are increasingly looking toexisting opportunities within the jury-selection and trial period( , juror orientation, voir dire, jury instructions) in which toinform jurors about the propensity of implicit bias to affectdecision making and to provide concrete strategies to minimizethe impact of implicit bias on jury article focuses on several of these interventions and thefactors that may increase or undermine their effectiveness. MostAmericans are aware of the existence of explicit bias and itseffects on decision making generally, but implicit bias is still arelatively new concept about which many people in the justicesystem are unaware.

5 The first section of this article discussesthe difference between explicit bias and implicit bias and whycontemporary researchers have become more convinced thatmuch of the disparity in legal outcomes for African-Americanscompared to whites is likely due to implicit bias. We thendescribe different interventions that have been proposed toreduce the impact of implicit bias, and findings from empiricalresearch about their effectiveness. One complication of theseinterventions is that some otherwise well-intentionedapproaches can provoke a backlash effect in which the individ-uals exposed to the intervention are actually more likely tomake judgments or behave in ways that manifest prejudice.

6 Inthe context of administering these interventions with trialjurors, there are a number of pros and cons, many of whichinvolve purely logistical concerns. We conclude with an updateabout interventions that are currently being tried, including apilot test of an implicit-bias jury instruction. THE IMPACT OF IMPLICIT BIAS IN THE JUSTICE SYSTEMJ udges, lawyers, and court staff have long recognized thatexplicit, or consciously endorsed, racial prejudices have noplace in the American justice system. The Code of Judicial Con-duct in most states expressly prohibits judges from engaging inbias, prejudice, or harassment on the basis of race, gender, eth-nicity, or other factors, and the code even extends the prohibi-tion to court employees over which the judges have control andto lawyers appearing in cases before fact, most judi-cial-performance evaluations include measures of judicialimpartiality as a major focus.

7 The underlying justification forthis prohibition is that discriminatory speech or behaviorundermines public perceptions of judicial impartiality andcompetence. In contemporary society, most people recognizethat explicit racial bias is normatively bad, and they makeefforts to suppress biased behaviors or speech, even if they con-sciously recognize that they have those attitudes. What often surprises members of the court community andother professionals is that more subtle biases or prejudices canoperate automatically, without awareness, intent, or consciouscontrol. Personal attitudes and acquired knowledge often helpindividuals function more efficiently by making it easier for thebrain to recognize and respond quickly to new people or situa-tions.

8 But some attitudes, especially racial and cultural stereo-types, distort decision making by unfairly influencing judg-ments about others. Although explicit or consciously endorsedracial prejudices in contemporary American society may be onthe decline, this subtler formof implicit racial bias the past few decades, a number of specialized tests haveFirst, do no harm :On Addressing the Problem of Implicit Bias in Juror Decision MakingBy Jennifer K. Elek & Paula Hannaford-Agor190 Court Review - Volume 49 A. Lane, Mahzarin R. Banaji, Brian A. Nosek & AnthonyG. Greenwald, Understanding and Using the Implicit AssociationTest: IV: What We Know (So Far) About the Method, inIMPLICITMEASURES OFATTITUDES(Bernd Wittenbrink & Norbert Schwarzeds.)

9 , 2007). Anthony Greenwald et al., Understanding and Using the ImplicitAssociation Test: III. Meta-Analysis of Predictive Validity, 97 J. PER-SONALITY&SOC. PSYCHOL. 17 (2009).5. For reviews, see John T. Jost et al., The Existence of Implicit Bias IsBeyond Reasonable Doubt: A Refutation of Ideological and Method-ological Objections and Executive Summary of Ten Studies That NoManager Should Ignore, 29 RESEARCHORG. BEHAV. 39 (2009); JerryKang & Kristin Lane, Seeing Through Colorblindness: Implicit Biasand the Law, 58 UCLA L. REV. 465 (2010). , ,Jennifer Eberhardt et al., Looking Deathworthy: PerceivedStereotypicality of Black Defendants Predicts Capital-SentencingOutcomes,17 PSYCHOL.

10 (2006); Jerry Kang et al., ImplicitBias in the Courtroom, 59 UCLA L. REV. 1124 (2012); Samuel , Race and the Decision Making of Juries, 12 LEGAL&CRIMINOLOGICALPSYCHOL. 171 (2007). J. Rachlinski et al., Does Unconscious Racial Bias Affect TrialJudges? 84 NOTREDAMEL. REV. 1195 (2009).8. Justin D. Levinson & Danielle Young, Different Shades of Bias: SkinTone, Implicit Bias, and Judgments of Ambiguous Evidence,112 L. REV. 307 (2010).been developed to help researchers identify, measure, and studyimplicit forms of bias. One of the most popular is the ImplicitAssociation Test (IAT), developed by researchers in the mid-1990s at Yale University and the University of Washington.