Unconscious Bias in the Courtroom
Explicit Bias and Unconscious Bias. Voir dire sets the stage for trial. Some people believe that jurors make up their minds by the end of opening statements. Others believe that the case is over at jury selection. My observation is that how the evidence is presented, along with the jurors’ biases from life experiences and their impressions of lawyers and parties, determine deliberations.
Explicit bias is evidenced when people speak about stereotypes. Batson and its progeny challenge explicit bias in jury selection. Unconscious bias occurs without forethought. Understanding why some people stick to their own stereotypes for impression management helps in mitigating unconscious bias.
Implicit Bias and Explicit Views of Lawyers’ Race and Gender
By Cynthia R. Cohen, Ph.D. published in the ABA Section of Litigation, Trial Practice Newsletter, Vol. 32, Summer 2018
Dr. Cohen’s article discusses explicit and implicit (or unconscious) bias at trial, as well as results from an original study testing mock jurors’ views of lawyers. Study has two components: 1) Bias in mock jurors’ preferences for lawyers’ gender and race and; 2) Mock jurors’ perceptions of lawyers’ skills that impact verdicts. 460 mock jurors were randomly assigned to 8 identical surveys. The 8 surveys varied gender and race of the attorneys in the scenarios (i.e., Asian Females, Asian Males, African American Females, African American Males, Caucasian Females, Caucasian Males, Hispanic Females, Hispanic Males.) Conclusions regarding stereotypes and why some people go against their own in-group explain choices made for their lawyer preferences.