Lawyers-and even jurors-may not be able to detect implicit bias, but there are steps to mitigate it
By Trisha Renaud, Special to the Daily Report
The search for bias is at the heart of every lawyer’s mission when facing a panel of prospective jurors.
Armed with lists of voir dire questions, attorneys hope to coax jurors into revealing enough information to identify who among the panel are dangerous for their client. Some jurors may dislike all plaintiffs while others are distrustful of big corporations. Then there are those who are immediately repulsed by anyone charged with a crime.
When the case involves issues that touch on race or ethnicity, lawyers know that uncovering such bias is more difficult. It is the rare juror who will admit prejudices, particularly in a courtroom in front of a crowd and a judge. And even those jurors willing to discuss their biases are usually unable to accurately gauge the depth of their feelings.
Social scientists tell us that when it comes to bias, matters are complicated.
When prospective jurors say they think people who file lawsuits are greedy, police are corrupt or women are ruled by their emotions, they are revealing one type of bias. Explicit bias consists of those attitudes a person is aware of and can identify, even if the person doesn’t recognize them as bias.
Yet even the most honest and self-critical individuals can go only so far with self-assessment. They won’t tell you about an entirely different type of bias, known as implicit bias, for the simple reason that they can’t. Implicit bias exists outside the conscious mind, beyond our awareness.
Implicit bias consists of unconscious associations that are the product of culture and life experiences. Social scientists have spent the past decade studying implicit bias in all its forms and developing ways to measure it.
Researchers at Harvard University’s Project Implicit have developed the Implicit Association Test (IAT).
Since 1998, the IAT has been taken online by some 4.5 million people.
The IAT works by measuring the reaction time a test taker uses to make certain associations. Such tests begin simply. In the version of the IAT that measures bias toward African Americans, the test (which can be taken online at implicit.harvard.edu/) works this way:
Subjects are asked to classify sets of words and images as quickly as possible. They must use the “e” and “i” keys on their computer to correspond to the left and right respectively. They are instructed to hit the left key when a black face appears and the right key when a white face appears. Then the same procedure is repeated using two sets of words. Subjects must hit one key for “good” words such as joy, wonderful or happy and another key for “bad” words such as evil, horrible, failure and nasty.
In the next stage, the words and images are combined. Test takers are instructed to hit one key when they see a white face or “bad” word and the other key when they see a black face or “good” word.
Finally, the associations are reversed: for either white faces or “good” words, subjects hit one key, and for black faces and “bad” words, they hit another.
By measuring and comparing the response times, the IAT will reveal a slight, moderate or strong preference for whites or blacks, or little to no preference. This response time difference occurs because associations that are more difficult for the mind to make take longer. Generally white test takers are faster at associating positive words with white faces than associating positive words with black faces.
Other versions of the IAT measure bias against the elderly, homosexuals, the disabled or associations between gender and careers, and between gender and science.
Project Implicit research has found that implicit bias is widespread. More than 80 percent of test takers show bias against the elderly as compared to the young and 75 percent to 80 percent of whites and Asians show implicit bias in favor of whites over blacks.
Of all the researchers’ findings, one conclusion is particularly important for trial lawyers: Implicit bias very often predicts behavior. As might be expected, persons with higher implicit bias more often engage in discriminatory acts.
Further, according to research published earlier this summer, implicit bias is a much better predictor of behavior than a person’s own self-assessment. This conclusion was based on a review of the results of 184 different studies that used the IAT.
Obviously, lawyers don’t have tools like the IAT when it comes to jury selection. Nonetheless, some familiarity with social science research on bias can be helpful to attorneys both in voir dire and during trial.
- People can’t reliably assess their own bias.
The limits of self-assessment may be obvious to many lawyers, and social science bears this out. Even the most soul-searching jurors simply don’t realize what attitudes linger in their unconsciousness.
- Deal with the biases you’re worried about during voir dire.
While voir dire can’t detect all bias, the nature of the questions you ask can affect jurors’ subsequent judgments. Some studies have concluded that the simple act of bringing up those biases relevant to your case can increase jurors’ open-mindedness and prime them to be sensitive to the issue.
- Friendships are important.
There is evidence from studies that individuals who have close friendships with someone of another race or ethnicity have less implicit bias toward that group. Recent polls indicate the same may be true of anti-gay bias. So ask prospective jurors about their ties with those who are different from them.
- Observations of interactions between potential jurors can be misleading.
A recent study concluded that whites don’t show implicit bias toward African Americans who are part of their same group. That group might be a sports team, a club, a corporate department-or it could be a jury panel. Group bonds of this type can be formed in minutes, or in the time prospective jurors spend waiting before they enter the courtroom. Their friendly interactions do not necessarily mean, for example, that white jurors won’t be biased against your African-American client. The diminished effects of implicit bias will not apply to African Americans who are not part of the “group,” regardless of how well jurors of different races or ethnicities appear to get along.
- Use every opportunity to provide jurors information that counters their stereotypes.
Research indicates that exposure to people who differ from stereotypes can mitigate the effects of implicit bias. Make sure the jury becomes aware of all the ways your client or witness is different from any stereotypes. You probably can’t eliminate all bias from your jury, but you can reduce its impact.
- Diverse juries can mitigate the effects of bias.
A 2006 study using mock trials found that whites who served on diverse juries were more open and receptive to discussing issues of racism than whites on all-white juries.
- Learning about prospective jurors’ behaviors and experiences is the best way to evaluate their bias.
Bias is shaped by experience. When developing voir dire questions, think of all the experiences a juror might have had that could contribute to a prejudice or a stereotype. Then, consider all the ways that someone with a particular bias might act.
- Ask for a commitment.
Once you’re near the end of speaking with a juror, ask for a commitment that he or she will do their utmost to be fair. Prime them to fulfill their civic duty. Then remind them of their promise gently when you address the panel in opening statements and closing arguments.
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The April 22 Jury Watch column discussed an Ohio murder trial in which three jurors conducted home experiments.
Defendant Ryan Widmer was found guilty of drowning his new bride by holding her head down in the bathtub. After the trial, several jurors acknowledged experimenting at home to see how long it took to air dry after bathing and discussing their findings during deliberation.
Last month, a Warren County judge granted Widmer a new trial, finding that the verdict may have been based in part on the improper home experiments.
This article is reprinted with permission from the September 2, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
