# data[].attributes.body
Overview:  Students will examine implicit or unconscious bias and articulate if and how it influences the legal system.

# data[].attributes.body
Program Learning Outcomes

Students will identify ethical impacts in current legal issues and demonstrate knowledge of professional attributes of legal professionals such as adherence to ethical practice, civility, preparation, composure, team contribution, and excellence in work product.

Students will demonstrate knowledge and ability to work effectively with individuals and groups with a variety of identities, cultures, backgrounds, and ideologies in a global legal environment.

Course Learning Outcomes

CLO8: Students will examine practice in a diverse pluralistic society.

Module Learning Outcome

MLO28: Define implicit bias.

MLO29: Articulate how implicit bias effects the American system of justice.

MLO3: Identify what ethical issues may be raised by implicit bias.

# data[].attributes.body
Read the following article and watch the imbedded video.

# data[].attributes.attachment_link.readable_text
There's something of a formula to the first morning of jury duty. It might involve a refresher on differences between civil and criminal cases, a little bit of shuffling between rooms, and a lot of waiting around in a generously named "Jury Lounge." But in one federal district, the customary civics lessons for jurors have been given a twist to alert them to the hidden biases they might bring into the courtroom.

The source is an 11-minute video - believed to be the first of its kind - that since March has been shown to every prospective juror in the two federal courthouses, in Seattle and Tacoma, that serve the U.S. District Court for the Western District of Washington.

The video - which cost the court $15,000 to make - complements the customary voir dire process, during which judges and lawyers question potential jurors about conflicts of interest and obvious prejudices that could prevent them from deliberating fairly. It features three speakers: the district's U.S. Attorney Annette Hayes, Reagan-appointed Judge John Coughenour, and Jeffery Robinson, deputy legal director of the American Civil Liberties Union who started his career as a criminal defense lawyer.

"You might have a deep-seated belief that basketball is a better sport than football, and you may prefer strawberry to raspberry jam," Robinson says in the video, describing examples of conscious - or explicit - bias. "Today, though," he says, speaking slowly and looking directly into the camera, "I want to talk to you about unconscious bias: something we all have, simply because we're human."

Robinson, who spearheaded the project, said that alerting jurors to their underlying prejudices was a "no-brainer," citing decades of research on the role of unconscious racial biases in "every aspect of American society," from hiring practices to policing. "You have two choices: either talk about it or don't talk about it, and haven't we seen what happens when we don't talk about it?" said Robinson. "If it goes unchecked, implicit bias will run rampant."

Though no particular case in his decades-long career incited his passion for the issue, Robinson said he has seen many jurors who "trust police officers implicitly" and hopes that those who do may reconsider their assumptions.

"If you're a white person and the only time you see a police officer is when he helps you with a flat tire or responds when someone steals your stereo, you have one view of the police," Robinson said. Jurors who are distrustful of the police, he said, might be dismissed for being unfair. "Why would trusting the police make you more fair in a criminal case?"

Seattle-area lawyers and judges have generally praised the video tutorial, but its use remains at the discretion of trial judges, according to the court clerk, William McCool. And this week, for what is believed to be the first time since the video became part of the routine, it was barred by a judge in the case of Leonard Thomas, a black man who was shot and killed by a police SWAT team after a standoff at his home four years ago.

The judge, Barbara Rothstein, ruled on Tuesday that the video would be "simply too prejudicial," especially because the plaintiffs intended to argue that the officers were affected by racial bias when they shot Thomas. Objections to the video had been raised by the officers' legal team in the wrongful death civil lawsuit.

Brian Augenthaler, a lawyer for the officers, argued that watching the video could lead jurors to believe that his clients shot Thomas because of an unconscious bias against black people. This was especially so, he asserted, because Robinson is a well-known civil rights attorney who had once served on the ACLU's board of directors with one of the plaintiffs' lawyers.

Although the video has been well-received, its effectiveness has yet to be evaluated. The body of research on implicit bias has expanded greatly in the last three decades, but there seems to be little consensus about ways to curb discriminatory behavior.

Patricia Devine, a social psychologist at the University of Wisconsin-Madison, is an expert in the study of racial bias and the unconscious effect of stereotypes. She said the court's method of "tuning jurors into their biases" is a generally sound approach, though it's hard to predict how well it will work without some experimental testing. "They're giving them generally good advice," Devine said. "But they're not doing research."

Although few scholars reject the concept of implicit bias, some are less confident about controlling discriminatory behavior. Calvin Lai, a postdoctoral fellow at Harvard's Project Implicit lab, has studied hundreds of bias-reduction techniques and has found that most of them were unlikely to cause lasting shifts in behavior. Getting people to "self-regulate" their prejudices, he said, is difficult.

"Simply understanding that your biases exist doesn't necessarily mean you're going to stop yourself from acting on them in the moment," Lai said. "I might know in some abstract way that eating cheeseburgers is bad for my health, but in the moment, I'm not thinking about that. I just want to eat my cheeseburger."

The Washington federal court's project is part of a broader effort to minimize the expression of unconscious bias in the courtroom. The American Bar Association, for example, posted guidelines for creating an impartial jury on its website, complete with recommended orientation materials and examples of jury instructions that directly address the issue of implicit bias.

In the UCLA Law Review, Jerry Kang, a law professor who is the school's vice chancellor for equity, diversity and inclusion, and some of his colleagues wrote that implicit bias education was likely to do more good than harm, and that such strategies are worth a try, even if there is little scholarship on their effectiveness in practice.

Robinson, who helped initiate the Washington program, says he's confident that it's a step in the right direction. "When people ask if it works, I can say without question that it works better than saying nothing."
Correction: An earlier version of this article incorrectly spelled the first name of Jeffery Robinson.

# data[].attributes.attachment_link.title
A Federal Court Asks Jurors to Confront Their Hidden Biases

# data[].attributes.attachment_link.description
There's something of a formula to the first morning of jury duty. It might involve a refresher on differences between civil and criminal cases, a little bit of shuffling between rooms, and a lot of waiting around in a generously named "Jury Lounge."

# data[].attributes.body
Readings continued
Click the image to view the article

# data[].attributes.attachment_link.readable_text
By Dr. Ken Broda-Bahm:

Think of the situations where self-diagnosis wouldn't work very well: A police officer asking, " Do you think you were speeding?" or a doctor inquiring, " Do you believe your cancer is in remission?" Yet we still rely on self-diagnosis when trying to discover and eliminate bias in civil and criminal cases by essentially asking prospective jurors, " Are you biased?" A new study ( Robertson, Yokum & Palmer, 2013) takes a look at whether we can rely on jurors to identify their own attitudes and know the sources of their own judgments well enough to say whether they would be biased or not. The result confirms our intuition: They can't.

Of course, those of us with a background in social science have always known that a juror's self-appraisal isn't a perfect indicator of actual beliefs or behavior. But what this study shows is that the self-appraisal is not just imperfect, it's not even helpful. Joining a number of other studies pointing in the same direction, the three researchers from the University of Arizona have systematically demonstrated the basic unreliability of this central premise of voir dire. But rather than showing that the search for bias doesn't matter, the research tells litigators, judges, and trial consultants to become more savvy and more strategic when asking about bias. And they need to stop taking jurors at their word when it comes to the critical "Can you be fair" questions. This post will take a look at the study and share some thoughts on how legal practitioners should adapt.

The Research: Don't Trust An "I Can Be Fair"

The authors are Christopher Robertson, David Yokum, and Matt Palmer, all with the James E. Rogers College of Law at the University of Arizona. Their 2013 paper can be downloaded here, and I should also point out that two out of three authors will be presenting a Juror Bias Symposium at the American Society of Trial Consultants' Annual Conference next month (June, 2013) in Las Vegas.

The study's conclusion should be striking to anyone who relies on self-report during voir dire, which is to say, every judge and most attorneys. That conclusion is that "juror self-assessments were not related to actual bias." The reason is that people are usually unaware of their own internal processes in rendering judgment. Given the choice between trusting what they say and trusting what they do, the preference in social science is to trust the latter. The law is another matter. "The Supreme Court has instructed courts," the authors note, "to use a simple method to determine whether jurors are biased: Ask them."

To test whether this works, the authors conducted an experiment in several phases. First, they randomized the groups and exposed them to either irrelevant material or to prejudicial publicity in a medical malpractice civil trial context. In phase two, they asked participants the voir dire questions endorsed in the most recent applicable Supreme Court case ( Skillings v. U.S.). In the third phase, all jurors watched and decided the same truncated medical malpractice case. Then finally, in phase four, the researchers looked at what the effect would have been of screening out jurors based on their answers in phase two.

By presenting the prejudicial materials immediately prior to trial, the researchers purposefully designed the study to make it as easy as possible for jurors to self-diagnose their own state of mind. "If they are unable to accurately assess the impact of an article they read just moments before in a laboratory setting," they note, "it is even less likely that they could accurately assess the impact of an exposure occurring weeks prior."

Predictably, the authors found that the pretrial reading created a bias. Even after being instructed to base their verdict on the trial alone, exposure to the publicity effectively doubled the odds of a verdict against the defendant and more than tripled the median damage awards. Despite this profound effect, however, a clear majority of jurors (87 percent of those in the exposed condition) denied bias and instead expressed a certainty that they would be able to decide the case impartially, considering only the evidence presented in the truncated trial. Comparing the verdict rates before and after screening the jurors, the rates were nearly identical. Without screening, 52 percent of those exposed to the prejudicial material found against the defendant. After weeding out those who said they couldn't be fair, 53 percent found against the defendant. Overall, the University of Arizona team found no statistical relationship between a likelihood of bias and a likelihood of admitting to that bias.

The bottom line according to the authors: "Courts' reliance on such unreliable self-diagnoses to seat biased jurors may be a cause of wrongful convictions and wrongful impositions of civil liability."
Instead, Escape from Self-Diagnosis
This research, along with the large number of complementary studies reviewed in the article, should lead to a serious reconsideration of whether we can continue to leave jurors as the judges of their own bias. We can't snap our fingers and change the legal standard, but we can push for change and we can alter our own practices as a result.
Educate Your Judges
Appeals based on juror bias tend to center on the factual question of whether a juror was actually influenced or not. Despite this, it is surprising how little attention is given in the appeals to the social science that would answer that question. For example, though multiple courts have ruled on these issues of juror bias, the authors describe a very rigorous study looking at the lack of a connection between jurors' likelihood of being influenced by pretrial publicity and likelihood of admitting to that influence ( Kerr et al., 1990). That study is now 23 years old, but it has never been cited by the Supreme Court or a Court of Appeals. Instead, the Court most recently upheld (Skillings v. U.S., 561 U.S. 2010) the adequacy of questions like, "Would any opinion you have prevent your impartial consideration of the evidence at trial?" and "Could you base a verdict only on the evidence at trial?" This is despite a lack of substantive social science evidence indicating that these questions are actually effective. "The Supreme Court has simply ignored the foregoing scientific literature," the researchers note, "and instead proceeded blithely, relying on jurors' self-diagnoses to affirm convictions and the imposition of civil liabilities, without requiring evidence about whether those self-diagnoses are reliable."

At a minimum, this current study ( Robertson, Yokum & Palmer, 2013) should be cited in any motion or appeal bearing on the adequacy of a potential juror's own disavowal of bias.
Show More Creativity on Cause
Of course, attorneys seeking to remove a juror for cause need to, at some point, elicit whatever magic words your judge is applying in practice. But that doesn't mean that attorneys should reduce the standard to just that. Instead of beginning with the removal question, ask some lead-ins:

Tell me more about [this biased belief of yours]
How strongly or weakly are you committed to that view? How easy or how hard would it be for you to simply set that aside?
Those questions are useful even if they don't get you to the goal by themselves. Once jurors have expanded on their views or committed themselves to a position, they're more likely to stick with that position when you or the judge asks them if they can be fair.

In addition, the study authors suggest a few additional ideas for more creatively asking cause questions. "Juror self-diagnosis might also be improved if they focused on the causal question, and were asked to imagine themselves in the counterfactual position of having not been so exposed." In other words, " If you were to imagine yourself not having had that experience, do you think you would react to a case like this any differently?" Another practical idea the authors suggest is asking potential jurors to answer the hypothetical question of whether the given belief or experience would be likely to bias another person. I've also witnessed attorneys somewhat sneaking past the Golden Rule objection by asking the venire members, " If you were in court in circumstances similar to my client, would you want someone with that [experience/belief] on your jury?"
Don't Let a Juror Promise Their Way Out of a Strike
Perhaps the most important piece of advice is that, even if the judge adopts a flawed standard for cause, don't replicate that same flawed standard when you are thinking about your own strikes. For example, here is a scenario I've been in several times in jury selection:

Me: You've really got to strike number 7. She said she hates companies like your's...

Client: But...she also said that she would set that aside and follow the evidence.

Me: And you believe her?

Based on this research, there is no indication that a promise of neutrality would make that juror any less biased. So when it comes to thinking of your strikes, think about their experiences and their attitudes, not their promises or their own self-assessments of how those experiences and attitudes would influence them.

The researchers add one other interesting point: Judicial disqualification doesn't depend on self-assessed bias, but instead on the standard of whether "impartiality might reasonably be questioned." That would be a far better standard to apply to cause challenges. If it can't be applied in law, then at least apply it in practice when dealing with your peremptories.
Other Posts on Juror Bias:
Robertson, C., Yokum, D., & Palmer, M. (2013). The Inability of Jurors to Self-Diagnose Bias 7th Annual Conference on Empirical Legal Studies Paper, 12-35

Image Credit: 123rf.com, used under license

# data[].attributes.attachment_link.description
By Dr. Ken Broda-Bahm: Think of the situations where self-diagnosis wouldn't work very well: A police officer asking, "Do you think you were speeding?" or a doctor inquiring, "Do you believe your cancer is in remission?" Yet we still rely on self-diagnosis when trying to discover and eliminate bias in civil and criminal cases by essentially asking prospective jurors, "Are you biased?"

# data[].attributes.body
Week 15 -  Discussion: Implicit Bias and the Legal System