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Excerpted from: Anna Roberts , (Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias , 44 Connecticut Law Review 827 ()February, 2012 (411 Footnotes omitted)
The intractable problem with which this Article is concerned is the challenge of devising a system for the fair selection of fair jurors, given the continuing presence of bias. This Article will focus on racial bias, a type of bias to which a great deal of research has been devoted. This Part introduces the two main categories of racial bias inherent in juries and jury selection: implicit bias and explicit bias, categories now discussed more frequently than "unconscious discrimination" and "conscious discrimination." Under each heading, the concept and its role in the selection and the decision-making of juries are explained, and the protections that are currently set up against the phenomenon are described. This Part concludes that these protections are failing to address the problems identified. A. Implicit Bias
"Implicit biases" are discriminatory biases based on either implicit attitudes-feelings that one has about a particular group-or implicit stereotypes-traits that one associates with a particular group. They are so subtle that those who hold them may not realize that they do. Implicit bias operates in areas such as gender, nationality, and social status, but strong levels of implicit racial bias relating to African-Americans have drawn the most attention. African-Americans, for example, are stereotypically linked to crime and violence; their behavior is more likely to be viewed as violent, hostile, and aggressive than is the behavior of whites; and they are more readily associated with weapons than are whites.
Levels of implicit bias frequently conflict with self-reported attitudes, usually because explicit measures show no bias, while implicit measures show bias. Because of this disconnect, implicit bias is sometimes offered as a partial explanation of the continuation of racial stratification even while, as measured by surveys, openly held racial stereotypes and prejudice have declined substantially over the last fifty years.
"Seek, and ye shall find" has been the theme of implicit bias research. Implicit bias has been shown to be widespread among the general public, and to influence behavior by professionals and laypeople in contexts that include employment, medicine, voting, and law enforcement; it has also been detected in juvenile and criminal justice authorities. Paul Butler claims that implicit bias may have lurked beneath the robe of Chief Justice Rehnquist.
Implicit bias can affect various types of behaviors. These include snap judgments, such as whether to fire a gun, but also "positions arrived at after careful consideration such as the policy choices of legislators, policemen, and Other mental activities that are affected include perception, forming of impressions, processing of information, use of information, and retrieval of information. Implicit bias is thus both "pervasive" and "deep."
There is some indication that the fact, or at least the effects, of implicit bias might be combated. Implicit associations have been termed "malleable," and, according to Kristin Lane and other psychologists, "[c]onscious exertion to be unbiased may-at least temporarily-reduce implicit Factors that aid this project include awareness of the bias, and motivation for non-biased behavior. Pretending that race is irrelevant does not help. 1. Implicit Bias in the Courtroom
Implicit bias is no less prevalent in the courtroom than in the street. Judges harbor implicit bias, as do death penalty attorneys, despite very different self-characterizations by both groups. So, too, do prosecutors. So, too, does the jury, despite its characterization by the Supreme Court as the criminal defendant's fundamental "protection of life and liberty against race or color
Judges, as well as scholars, have recognized the existence of implicit bias in the courtroom. Supreme Court opinions have acknowledged its presence in jurors, its potential to affect their assessments of evidence, and its potential to affect their verdicts. Some state and lower federal courts have followed suit, noting that implicit bias among jurors extends beyond evaluations of a criminal defendant, to other juror tasks such as evaluation of witnesses. Supreme Court Justices, and other judges, have also acknowledged the possibility of implicit bias in attorneys and in judges.
Implicit bias in judges and jurors can inhere in unintentional "misremember [ing]" of facts in racially biased ways, during all stages of legal decision-making. Jody Armour has suggested that "habitual stereotype-congruent responses to blacks, even by sincerely racially liberal whites, may distort legal judgments concerning blacks as much in contemporary America as in the America [Clarence] Darrow Ronald Tabak has illustrated the extent and seriousness, including constitutional seriousness, of the potential impacts of implicit bias on jurors:
It can affect how jurors react to assertions that someone acted in self-defense[;]
It can affect assertions that there was excessive force by the police[;] It can affect whether there really is a presumption of innocence . . . [;] It can affect whether the jury believes that remaining silent, which is a defendant's constitutional right, is an admission of guilt[;]
It can even affect how the jury perceives an expert witness who is a person of color. Strategies for addressing implicit juror bias are discussed below. In the case of addressing implicit judicial bias, there are some promising signs. Even though the racial imbalance of the justice system may reinforce the implicit racial bias of judges who work in it every day, judges are able to suppress their implicit racial bias when they are both aware of the need to monitor its influence, and are motivated to do something about it. 2. Existing Protections Against Implicit Bias in the Courtroom
Despite the threats to impartiality created by implicit bias on the part of judges, attorneys, and jurors, protections against it and its effects are few.
Some effort has been made to educate the various courtroom players about their implicit bias. Judicial trainings on this topic have been created. Federal judges, however, are not required to attend any judicial trainings, and most judges remain uninformed on this issue. Proposals have been initiated to educate prosecutors about implicit bias. As for educating jurors about their own implicit biases, one judge has devised his own solutions.
Whether or not they receive such education, judges and jurors are required to be impartial. In the case of federal judges, this is the subject of an oath; in the case of all judges, it is an ethical rule, and a matter of professional identity. Implicit bias, however, can impair judges' ability to align their conduct with what is ethical.
In the case of jurors, impartiality is a constitutional requirement, and bias in even one juror violates a criminal defendant's right to a fair trial. However, procedures for removing biased jurors were established long before the existence and significance of implicit bias were widely known. Motions by attorneys to remove jurors "for cause"-in other words, on the basis that they cannot be fair-have been viewed as the primary opportunity for removing biased jurors. Such motions, however, are granted only on the basis of a narrow set of rather obvious biases, and not on grounds of implicit bias. Indeed, despite the Supreme Court's acknowledgement of the phenomenon, courts have typically been hostile to considerations of the possible impact of implicit bias in the courtroom, as elsewhere.
The process of voir dire, the dialog with jurors during jury selection, has proven largely unable to detect or correct implicit bias in jurors. The types of judicial exhortations that are typically issued, including that jurors "remove bias from their deliberations," are likely to be rejected as irrelevant and may be counterproductive. The types of perfunctory questions that are commonly asked-whether the jurors can be fair and impartial, for example -are unlikely to succeed if the jurors have no idea. Indeed, because of the prevalence of implicit bias, commentators, such as the late Derrick Bell, have despaired that "even the most extensive and penetrating voir dire will not screen the vast majority of bigoted
The peremptory strike, a way for attorneys to remove jurors without having to give a reason, allows attorneys to strike jurors whom they believe may harbor implicit bias. However, the peremptory strike has been criticized as an augmenter of, rather than a protector against, bias. Naturally, potential jurors are unlikely to give voice to their implicit bias and, during a voir dire process that can be short, attorneys may learn little about the jurors and about their implicit biases. Thus, attorneys often rely on stereotypes in their peremptory strikes, including unconscious stereotypes. Whereas the Batson doctrine exists to protect against purposeful discrimination by attorneys against potential jurors, the doctrine fails to protect against the implicit bias of attorneys. In addition, the heavy reliance that the doctrine places on judicial discretion opens the door to the influence of implicit judicial bias.
Thus, under the current regime, implicit bias is allowed to "flourish" within jurors, attorneys, and judges, as the biases of one party run the risk of reinforcing the biases of another. The protections in place, conceived in an earlier era, fail to address the implicit biases that are now known to exist, and in fact may intensify them. Potential jurors who, by sincerely professing their lack of bias, might create particular concern, may be left on the jury. A call has gone out, from the judiciary as well as the academy, for implicit bias research to be marshaled to address bias in both jury selection and juries. B. Explicit Bias
The increasing focus on implicit bias should not obscure the fact that explicit bias, meaning "the kinds of bias that people knowingly-sometimes still exists and still wields power. 1. Explicit Bias in the Courtroom
Supreme Court Justices and scholars have acknowledged the risk of explicit bias being harbored by juries, affecting their assessment of evidence and their verdicts. They have also acknowledged the risk of explicit bias being harbored by judges and, of course, by attorneys: hence the need for the Batson doctrine. 2. Existing Protections Against Explicit Bias in the Courtroom
The Batson doctrine has failed to prevent attorneys from relying on explicit bias in jury selection. It is all too easy for attorneys who are "of a mind to discriminate" to mask their discrimination behind a reason for their peremptory strike that is facially neutral, whatever its intent or disparate impact. Judicial policing of such strikes is ineffective. Thus, attorneys continue to rely on stereotypes in making their selections, often viewing group affiliations as an indicator of implicit bias and often justifying their behavior on the ground that voir dire is too short to give them information more valuable than stereotypes. This behavior has been described variously as a form of prosecutorial misconduct, and as a regrettable requirement of zealous defense advocacy. From the latter camp, Abbe Smith describes the problem as follows:
It is not that I believe that racial or demographic stereotypes are an accurate proxy for the attitudes and life experience of all prospective jurors. I do not. It is that, absent a meaningful exploration of the latter, I am stuck with the former, and it would be foolhardy or worse not to at least consider the generalizations on which the stereotypes are based.
Constraints other than a lack of time prevent voir dire from providing protection against explicit juror bias. While potential jurors may harbor bias of which they are aware, taboos are likely to prohibit its disclosure, however skillful the questioning. Jurors will often give the answers that "seem acceptable." For example, one survey revealed that sixty percent of people will tell a stranger on the phone that they do not believe in the presumption of innocence; however, when asked the same question in the courtroom, hardly a one will express anything other than complete fealty to this noble tenet. In a formal setting such as the courtroom, especially where the risk of public expulsion attends a disclosure of bias, racial attitudes that might be revealed elsewhere are particularly likely to be choked down. In addition, jurors may remain silent when asked about bias because they do not comprehend the extent to which their biases will affect their ability to assess the case fairly. They will also remain silent if they are "intent on giving play to their Finally, the common practice of questioning potential jurors as a group makes a disclosure less likely, since, as Sheri Johnson puts it, "it is easier to stay quiet untruthfully than to respond Thus, various pressures mean that jurors tend to assert that they can try a case fairly; in turn, judges tend to accept such assertions. In their resolutions of questions regarding juror fairness, judges are afforded great discretion, in part because of the importance of individualized evaluation; discretion and individualized evaluations, of course, permit the influence of bias.
There is a limited set of circumstances in which the Supreme Court requires the questioning of potential jurors about racial prejudice. Different standards apply depending on whether the requirement is a constitutional one, or an exercise of the Court's supervisory power over federal courts. For the former requirement to apply, there must be a "constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be indifferent as [they stand] The Court has found the standard satisfied in only two circumstances. The first, Turner, involved a death penalty sentence for an African-American defendant convicted of killing a Caucasian. The second, Ham, was the trial of a civil rights worker, in which the defendant alleged that he was being framed because of his work, and where the Court found that racial issues were "inextricably bound up with the conduct of the Under its federal court supervisory power, the Court requires questioning on racial prejudice where there is a reasonable possibility that racial or ethnic prejudice will influence the jury. This standard is satisfied if a defendant is accused of a violent crime and the defendant and the alleged victim belong to different racial groups. The Court has declined to require any particular number or form of questions, or to take away from the trial judge "the decision whether to question the venire individually or As long as the topic is "covered," the details are left to the judge's discretion.
The Court's decisions have been subject to a variety of critiques. The limitations on the availability of such questioning have been criticized by Sheri Johnson as "contradicted by empirical findings on the prevalence of and have been held responsible for trial judges' acquiescence to pressures to keep voir dire short. Jerry Kang's research suggests that the doctrine is topsy-turvy, since it is precisely when race is not an obvious issue that white juror bias is particularly likely. Johnson suggests that Turner was topsy-turvy in another way-by finding a violation only during sentencing, and not trial. She cites research suggesting that "the defendant's race affects guilt determinations more often than it affects sentences; it is the subtle, unconscious alteration of judgment, not the conscious desire to injure, that most threatens the fair administration of the criminal justice Even when voir dire questioning is permitted, reliance on that device to detect prejudice has been criticized as hopelessly na ve.
Thus, the existing doctrine leaves both implicit bias and explicit bias largely unchecked in the courtroom. The Batson process, designed to control the bias of attorneys as they make efforts to control the bias of juries, is viewed by at least one member of the federal judiciary as "thoroughly inadequate." This is in part because the process "allows the implicit and explicit biases of attorneys to impact jury The peremptory strike procedure rests on the use of stereotypes, while failing to do much for jury impartiality. The potential biases of the jurors-deemed by Susan Herman "far more critical than those of the lawyers"-remain largely undetected. Whereas the Sixth Amendment right to an impartial jury was designed as a safeguard against the "corrupt or overzealous prosecutor and against the compliant, biased, or eccentric prosecutorial failings and judicial bias are in fact playing a part in shaping the jury.