Reducing Implicit Bias In The Judicial Process

Nov 17, 2015

The Supreme Court considers what it takes to show prosecutors are discriminating against minorities when selecting juries.  This practice is known as implicit bias, and continues to become more prevalent. 

David Harris, a University of Pittsburgh Law professor, will soon head to the White House to address this practice.  He explains that implicit bias causes us to make quick judgments about people or groups of people, resulting in unintended discrimination.

“Most racial bias occurs on the unconscious level.  Most people today will tell you that they are fair minded, that they respect equality, but what we know is that unconscious bias affects almost all of us,” Harris says. 

Harris explains the existence of implicit bias has been proven through the Implicit Association Test, an online assessment in which faces, objects, or adjectives are quickly matched with positive or negative concepts. Participants can then see the results, which measures both conscious and unconscious racial bias.

In the courtroom, the jury selection process, although un-scientific, is crucial in determining the outcome of a trial, as both the defense and prosecuting attorneys want jurors who have the same bias as they do.  Harris believes that there are ways to combat such implicit bias in the courtroom.

“Make sure that the jurors notice it (racial content) because when race is brought out into the light, your conscious beliefs about equality can kick in, and the implicit, unconscious biases recede. “

Much of this implicit bias comes forth through pre-questions from lawyers to jurors.  Lawyers possess the right to preemptive challenges, which allows for the removal of a potential juror without needing to give a reason. 

Harris explains that the court must put new rules into place, removing the right to preemptory challenges, as implicit bias will always affect the jury selection process. 

“Until we become aware of what this (implicit bias) is, what the mechanism is, we won’t be able to fight it.  That’s why awareness is the first and most important step.”

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