Date of this Version
Court Review, Volume 49, Issue 4 (2013)
Over the past three decades, court leaders across the country have taken aggressive steps to confront racial bias in the courts. Recent efforts include in-depth judicial education and training about how an individual’s unconscious attitudes (including culturally learned associations or generalizations that we tend to think of as stereotypes) introduce unjustified assumptions about other people and related evidence that can distort a person’s judgment and behavior. This phenomenon is now referred to as implicit bias to differentiate it from explicit or intentional bias. Judicial education programs focus on raising judicial awareness about implicit bias and introducing techniques that judges may use to help minimize the impact of implicit bias on judicial decision making.
Despite high levels of interest and genuine commitment to racial fairness in the justice system, disparate treatment of racial minorities persists and pervades all stages of the criminal justice process. Jury trials are a particularly troubling component of the justice system with regard to the potential for racial bias. Courts have extremely limited opportunities to educate jurors about the pernicious effects of complex psychological phenomena like implicit bias and how these implicit forms of bias may distort jurors’ interpretation of trial evidence. Jurors are randomly selected from the local community. Other than statutory qualifications such as U.S. citizenship, age (adults 18 or older), and the ability to speak and understand English, state courts have no educational, occupational, or personal experience requirements to be eligible for jury service. Most jurors in this country serve only for the duration of the trial (typically two to three days) and then are released from service. No time is available during this short period to provide the type of in-depth education on implicit bias that judges and court staff may receive. Instead, judges and lawyers are increasingly looking to existing opportunities within the jury-selection and trial period (e.g., juror orientation, voir dire, jury instructions) in which to inform jurors about the propensity of implicit bias to affect decision making and to provide concrete strategies to minimize the impact of implicit bias on jury verdicts.