We’ve posted before about implicit bias, including the Department of Justice’s training on implicit bias, the ABA’s video and related work on the subject and the role that implicit bias plays in Batson challenges. In a fascinating new development, the United States District Court for the Western District of Washington (which includes Seattle) has produced a video for jurors to watch. As noted by the Marshall Project in this article discussing the initiative (originally posted here), the video is being shown to potential jurors as they wait to be called for service. The court has also posted a set of pattern jury instructions that can be used at a judge’s discretion during a trial. Will other federal courts follow suit? And will there be some form of rigorous evaluation to assess the effectiveness of this innovative approach? Developments to follow . . .
As I’ve noted previously, research on implicit bias has taken hold at the highest levels of government, with the U.S. Department of Justice requiring training on implicit bias for all of its employees.
Criminal defense lawyers, of course, are also prone to implicit bias, as Professor L. Song Richardson has written in her excellent article in the Yale Law Journal. Now she and other experts discuss implicit bias and criminal defense in a new video, produced by the ABA, which is available here. It is an excellent introduction to the subject, and can be quite useful in classroom discussions (I plan to use it in my criminal defense ethics class this semester).
(The research basis for implicit bias also corresponds with the reasons why lawyers for indigent defendants can suffer from what I call “ethical blindness,” as I have written elsewhere).
As readers of this blog may know, there is a wealth of research on how implicit bias can influence judgment and behavior (for example, my co-blogger Molly Wilson has discussed implicit bias in the context of Batson challenges, here). One area where implicit bias has received extensive attention relates to the prosecution (and defense) of crime. That’s why the United States Department of Justice’s recent announcement that all DOJ employees will receive training on implicit bias is such as important step. As Attorney General Loretta Lynch stated in announcing the initiative:
“Our officers are more effective and our communities are more secure when law enforcement has the tools and training they need to address today’s public safety challenges . . . At the Department of Justice, we are committed to ensuring that our own personnel are well trained in the core principles and best practices of community policing. Today’s announcement is an important step in our ongoing efforts to promote fairness, eliminate bias and build the stronger, safer, more just society that all Americans deserve.”
For those wanting more resources on the role of implicit bias on judgment and decision-making, a large body of information is available, including at the American Bar Association’s website (which includes this excellent video on the neuroscience of implicit bias) and this list of resources created by Professor Kimberly Norwood from Washington University School of Law.
Most of us probably recall Batson, the case in which the Supreme Court held that a criminal defendant could challenge his conviction if he or she could convince a judge that jurors of a protected class were intentionally excluded because of their membership in that class. Recently, the Missouri Court of Appeals for the Eastern District published an opinion in the case of Missouri v. Rashad in which the issue was whether the prosecutor’s dismissal of two African American jurors was pretextual. This case was interesting because the prosecutor admitted that, in the case of one African-American juror, he had made a mistake in not dismissing a similarly situated Caucasian juror. The question for the court was whether a prosecutor’s oversight is an excuse for differential treatment. The court answered that it was, seemingly because Batson requires intentional exclusion.
What is truly notable about this opinion is the concurrence, written by Chief Judge Lisa Van Amburg, which takes issue with Batson because it does not address implicit bias. In its simplest form, implicit bias is the unconscious tendency most people have to favor particular groups of people and disfavor others. The Implicit Association Test (IAT) is a test in which people are asked to pair items, and their reaction time is measured. There are a number of different versions of this test, and each measures a different type of bias. In one, people pair black and white faces with positive or negative words. Most people are faster when they are pairing white faces with positive words than when they are pairing black faces with positive words. Judge Van Amburg’s point in her concurrence is that when an attorney makes an “honest mistake” by dismissing a black juror, but not a similarly situated white juror, he may well be exhibiting implicit bias. Moreover, it is likely that this type of implicit bias occurs more broadly in the selection of jurors, and in a variety of other areas in the criminal justice system.
The opinion and concurrence can be read here: Missouri v. Rashad