Throughout this election season one theme has consistently been in the headlines: bias. Bias in the form of racism, sexism, classism – but most importantly, bias that is hidden rather than overt. Implicit bias, as it is known, is largely unintentional and often undetected.
In the news, implicit bias is primarily brought up in the context of race. The obvious example comes in the wake of recent police shootings, when the question was asked across the nation: Do law enforcement officers consciously or unconsciously perceive members of some races to be inherently more dangerous or criminal than others?
Although few would assert that all – or even most – law enforcement officers in this country are racist, even the U.S. Department of Justice recognized the existence and validity of implicit bias in its June statement announcing the launch of department-wide implicit bias training. The DOJ also acknowledged implicit bias can include gender, sexual orientation, religion and socioeconomic status.
Implicit bias is not unique to law enforcement, and what makes it so concerning in the courtroom is that jurors themselves may not realize they carry these prejudices, much less admit to them during jury selection. Rather than requiring an active choice to discriminate against someone or some group, implicit biases subconsciously frame how we perceive the world and thus are the most difficult biases to detect. Jurors (and people in general) may not even realize they are being influenced by implicit biases until it is later pointed out.
For example, imagine a doctor. For many people, the very term “doctor” will conjure images of a white man in his 40s or older. Does this mean those who immediately assumed the doctor was a white man are sexist or racist? Not at all. But the association is still important to note, especially in a case such as we had recently, when all four of the doctors involved in a patient’s care were millennial women. Implicit biases such as this can be the determining factor in whether a juror leans toward the plaintiff or the defense at least at the beginning of the case, since when a person does not fit the preconceived notion of how they will look or act, a juror may easily start questioning their credibility or, worse, their capability.
Although implicit bias will always be an issue on a jury, regardless of how open-minded they say they are, here are a few steps we suggest taking to lessen the effect of these implicit biases on your jury.
First, be aware such biases exist, and try to filter them out before trial. Ask questions in voir dire designed to detect these subtle preconceptions, and ask yourself, “Is this juror likely to be truly fair and impartial, even after swearing to do so?” For example, the juror who swore up and down to God and the judge that he could be fair in a wrongful-death case involving law enforcement, despite the fact police had gunned down his nephew on public transit in another state, either had a motivation to get on the jury to send a message or was innocently optimistic about his ability to see both sides.
Second, leave nothing to the jury’s imagination. We have written several times on this topic in the past and cannot stress it enough: Make arguments and evidence as clear and easily digestible as possible for the jury. Gambling on whether a juror will construe confusing information in your favor is never a good bet. If a juror is confused, he or she is likely to fill in any gaps with personal experiences and beliefs, i.e., implicit biases. The less that is left to juror imagination, the less likely implicit bias will significantly sway a juror’s verdict. As in the case above with the four young female doctors, the trial team will stress at trial their qualifications, education and experience in order to combat the implicit bias we know jurors will have against them.
To discuss other strategies to lessen the effects of implicit juror bias, contact Senior Vice President Claire Luna at cluna@juryimpct.net or 714.754.1010.
