Confronting Implicit Bias in the Courtroom  

By David Howard King

November 18, 2021

Confronting Implicit Bias in the Courtroom  


By David Howard King

Implicit bias and its insidious influence on the justice system was the subject of a NYSBA webinar during a week when the country watched nervously as two trials with major racial connotations came to a head.

At the time of the CLE, a jury asked a judge in Wisconsin to rewatch footage taken from the scene where Kyle Rittenhouse shot and killed Black Lives Matter protesters with an AR-15 style rifle. Experts on criminal defense noted that Rittenhouse’s treatment by the court system was drastically different from how young Black men are treated in similar situations. His association with white supremacist groups also led to questions about his motivation for attending the rally armed.

Just the day before, prosecutors in Georgia rested their case against three white men accused of chasing down and killing a 25-year-old Black man who was out for a jog.

The presenters of the CLE, “Addressing Implicit Bias in the Criminal Justice System – Two Strategies,” made it clear that implicit bias is inherent in any case where race is an issue – especially when the defendant is not white.

Andrea Miller, clinical assistant professor of psychology and a senior court research associate at the National Center for State Courts, explained that implicit bias exists in our minds regardless of how we might identify politically, or how sensitive or insensitive we might be to race and gender.

“Implicit stereotypes and attitudes form through repeated exposure to stereotypes in everyday life. These implicit biases develop in memory even if you don’t personally endorse them,” said Miller.

These biases can color decisions made in police work such as how witnesses identify suspects, how defendants are sentenced, how judges rule and how juries reach verdicts.

The CLE examined two bills endorsed by the New York State Bar Association that are designed to ensure the appellate court can review cases for implicit bias even when a defendant has agreed to an appeal waiver as part of a plea deal.

The first, S1281, would mandate that the Appellate Division modify sentences that are determined to be illegal or unduly harsh or severe.

The second, S1280, would require the court to review a denial of a motion to suppress evidence on appeal, even in cases where an appeal waiver was signed.

Robert Dean, attorney-in-charge of the Center for Appellate Litigation, noted that this legislation is necessary because more than 95% of cases are settled outside of the courtroom.

In those settlements, prosecutors push defendants to sign appeal waivers, thereby nullifying the intent of New York law and sidelining the Appellate Division. Furthermore, Black people are more likely to face criminal charges while having the cases against them shaped by implicit bias.

“Studies show that Black people are more likely to be wrongfully identified, improperly stopped, and more likely to have their car, belongings, and bodies searched,” said Megan Byrne, director of the Racial Justice Project, Center for Appellate Litigation. She pointed to a 2019 study by the New York Civil Liberties Union that showed 59% of people stopped by New York state police were Black while 29% were Latinx. Meanwhile, a nationwide study found that Black people were more likely to be pulled over than white people but less likely to have illicit drugs on them.

“All these bills do is reclaim these rights. We’re taking the final word out of the prosecutor’s hands and into the hands of the appellate courts where the legislature intended them to be,” Dean said.

Byrne echoed Dean, saying that appeal waivers mean that the appellate court can’t review actions in cases where the process was tainted by bias. She pointed to a study by the Manhattan district attorney’s office and the Vera Institute of Justice that reviewed 220,000 cases from 2010 to 2011 to see what role race played.

Among the study’s findings were that Black defendants were 19% more likely than whites to be offered plea deals that included jail or prison time and that Black people and Latinos were both much more likely to be offered plea deals that included time behind bars for misdemeanor drug offenses.

Dealing with Implicit Bias in Juries

The second half of the CLE began with Miller explaining how implicit bias can impact jury selection. She demonstrated that attorneys are just as affected by implicit biases during jury selection as the potential jurors may be during the case. She pointed to a cognitive confirmation bias that can lead attorneys and jurors alike to look for details that affirm their beliefs or stereotypes while ignoring the ones that don’t.

“Jurors hearing evidence are more likely to seek out info that aligns with preconceived notions of stereotypes,” Miller said.

Even more striking was evidence Miller presented showing that people are simply unable to evaluate their own level of bias or open-mindedness. She referred to a study that asked Americans to rate how open they are to misinformation. “They all agreed that the average American is highly susceptible but rated themselves as much less likely to be fooled.”

Miller conducted her own study asking judges to rate their ability to avoid gender and racial bias. “They all saw themselves at being better at avoiding biases than they are at the core skills of associated with being a judge,” said Miller.

That leads to quite a conundrum for jury selection. If even judges can’t admit they have bias, then how can we expect lawyers to get jurors to admit their biases during voir dire? According to Andre Vitale, first assistant deputy public defender with the Hudson County office of the New Jersey Office of the Public Defender, lawyers should not try to get potential jurors to admit bias because it is impossible.

Instead, he says, the focus should be on introducing the idea of implicit bias and making sure jurors know that their judgment can be clouded by stereotypes they don’t realize they have.

He proposed several ways to do this, including asking judges to play instructional videos about implicit bias, asking jurors if they understand the concept of implicit bias and introducing the concept of race and bias into cases where it clearly exists. He pointed to the trial of George Zimmerman for the killing of teen Trayvon Martin, slamming the prosecution for not introducing race and bias into the trial. He played Zimmerman’s initial call to 911 where he notes Martin’s race without any further explanation of why he’s concerned Martin is in the neighborhood.

“Educate jurors about implicit bias, talk about racism. If we don’t talk about bias, we’re not doing our jobs. If you’re not making it part of your defense, you still should be talking to jurors about it in the course of jury selection,” Vitale said.

There should be no illusion that jurors’ beliefs about race will change by talking about race, but the discussion can lead to more robust debate in the jury room. Citing a study that shows that defendants with darker complexions get higher sentences for similar crimes, Vitale stressed that lawyers and their Black clients are facing overwhelming negative assumptions that lead to the disproportionate punishment of Black people.

Vitale stressed that by introducing the concept of bias and race to a jury and how it can influence perceptions it encourages jurors to more carefully consider what is behind their assumptions and judgments in a case. When that concept is not introduced, jurors tend not to challenge their own biases, research has found.

“You have to be willing to take on institutional racism. We know it exists in the court system. We also know that when race is an issue, jurors try to be fairer. When race is not an issue, jurors tend to be much less careful,” Vitale said.

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