Excerpted From: Joseph J. Avery, DongWon Oh, Lauren Feldman, Reuven Cooper and Joel Cooper, Criminal Stereotypes of Muslim and Arab Americans and the Impact on Evaluations of Ambiguous Criminal Evidence, 51 Journal of Legal Studies 177 (January, 2022) (9 Footnotes/References) (Full Document)
In the American legal system, ordinary citizens accept the responsibility to come together to serve on juries and render fair and honest decisions to the best of their ability. Jurors are instructed to consider the evidence presented to them in the course of trial and to leave all other factors behind. That said, the standard of proof by which such considerations lead to conclusions is not always the same. In civil matters, jurors must decide whether a preponderance of the evidence convinces them that the defendant should be held liable. In criminal cases, members of a grand jury must decide whether the evidence meets the standard of probable cause to indict the accused of a crime. At trial, jurors must decide whether the evidence against the accused reaches the standard of being beyond a reasonable doubt for conviction.
Across these different types of decisions, ordinary citizens may make good-faith efforts to construe and apply facts and law as instructed. But extralegal considerations are difficult to avoid, and under some circumstances lay constructions of liability and criminality may be vulnerable to bias. In this article, we explore both the tendency for laypeople--specifically, jury-eligible Americans--to attribute stereotypical characteristics to an individual as a function of that individual's group membership and what import this tendency has in specific legal institutional contexts. That is, we explore not just stereotype effects in juries' decision-making but whether those effects are sensitive to the stringency of the burden of persuasion.
Ample research in the behavioral sciences documents how judgments are often biased by race, ethnicity, sex, and other legally protected characteristics (see, for example, Eberhardt 2019), and it stands to reason that potential jurors are affected by stereotypical judgments in the same way as the general population. Americans believe that Black individuals are more likely than White individuals to commit crimes of aggression and that White individuals are more likely to commit financial crimes such as embezzlement. Research also shows that mock jurors are more inclined to stereotype Black individuals as likely to commit mala in se crimes, and they stereotype White individuals as likely to commit mala prohibita crimes.
The dilemma for researchers studying the jury system is to understand the extent of the influence of extralegal factors on jurors' judgments. With factors like race and ethnicity, this is a knotty dilemma, as individuals seldom admit their racial and ethnic biases; indeed, they often dissemble when asked about such influences. In the research presented in this article, we use a novel, data-driven reverse-correlation procedure not just to accurately identify stereotypes of criminal subtypes but also to visually render those stereotypes for more intuitive inspection and reflection.
The challenge to public policy is to find ways to ameliorate the influences that are identified. Consider a person who is caught in possession of unlicensed firearms in the vicinity of a government building. Is the person planning a robbery, planning a terrorist act, or naively carrying weapons the person did not know required a license? There are stereotypes that apply in this situation and that may affect the judgment of actors throughout the judicial process. Police officers make judgments when deciding whom to arrest; prosecutors make judgments when deciding which crimes to charge the arrested individual with, if any; and jurors must decide whether the evidence meets the requisite standard of proof necessary for conviction. Bias may emerge at any of these points, and it may compound across them (Avery and Cooper 2020a). It would not be surprising to learn that people are inclined to assume that an Arab American is more likely to be involved in terrorism than is a person of non-Arab ethnicity. If the potential perpetrator is identified as an Arab American, then a chain of judgments may be activated at all levels of the judicial system, the consequence of which is a greater likelihood of convicting an Arab American charged with terrorism than a non-Arab.
Our focus in this research is on the increased likelihood that evidence that is considered insufficient to indict or convict White individuals of a crime of terrorism will be considered sufficient to indict or convict Arab American individuals. This effect is due to the stereotype that links Arab Americans to terrorism and is applied both specifically and automatically. It is specific in that Arab Americans are not considered more criminal in general but only more likely to be terrorists. It is applied automatically in that it affects judgments without conscious thought or control. Even under instruction to consider only the evidence in the case and to weigh that evidence in accordance with a given standard, jurors are affected by stereotype activation and apply it to Arab Americans when making judgments of innocence and guilt.
Importantly, the given standards vary, which allows us to examine whether the impact of stereotypes on legal judgment is affected by the stringency of the standard of proof. When jurors are given specific instructions to consider a case in accordance with the probable-cause standard, can they put aside their stereotypes? What if the standard rises to beyond a reasonable doubt? In other words, does knowing that the evidence must be persuasive beyond a reasonable doubt facilitate more careful reliance on evidence rather than stereotype activation?
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This article represents an important addition to the growing field of experimental jurisprudence and empirical legal studies. It uses a novel computational method to visualize a stereotype of a particular criminal subtype. More important, it tests the intersection of the stereotype with legal conclusions in the context of different standards of proof. For the less-stringent criminal standard--probable cause, which typically is used in a grand-jury setting--the stereotype matters to the outcome, with the clear implication that lax standards may leave room for jurors to improperly consider extralegal factors such as race and ethnicity.
joseph j. avery is a Resident Fellow in the Information Society Project at Yale Law School.
dongwon oh is a Postdoctoral Associate in the Department of Psychology at New York University.
lauren feldman is a Doctoral Candidate in the Department of Psychology at Princeton University.
reuven cooper is at the Rabbinical College of America.
joel cooper is a Professor of Psychology at Princeton University.