EXPOSING IMPLICIT RACIAL BIAS DURING JURY SELECTION

Alan F. Pendleton is a Former District Court Judge who has written technical papers for judges for several years.  These are excerpts from a recent post on implicit bias – a topic that judges, lawyers, yes law enforcement and politicians, need awareness.  You can read the entire post, including suggested questions during jury selection to expose implicit bias, here.  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). *  *  *  *  * 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 ... *  *  *  *  * 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 *  *  *  *  *