By Dr. Ken Broda Bahm:
Recognizing and reducing bias is obviously essential in a litigation context. But when it comes to “de-biasing,” it helps to see instructions as one tool in the toolbox, but not a tool that’s guaranteed to fix everything. In a recent post, I wrote about a pre-instruction on hindsight that shows some promise. But, of course, there is no guarantee that you can get the instruction in, or that it will work in all scenarios. This post highlights another recent research finding on instructions, this time focusing on implicit bias. A team of psychology researchers at the University of California-Irvine (Lynch, Kidd & Shaw, 2022) studied the effects of including the version of the instruction on implicit bias currently being used in courtrooms in the Western Washington federal district. The team varied the defendant’s and the informant-witness’s race and paired the case with either the standard instructions or the more detailed implicit bias instruction. They then presented the case – a 70-minute voice-recorded and visual presentation of a federal drug conspiracy trial – to 120 mock juries (4 to 7 jurors each) who deliberated to a verdict.
The main result was that the instruction did not work in a way that influenced verdicts. Hearing about implicit bias, however, did increase awareness of the bias, and did influence the discussions. However, in an instance of the Law of Unintended Consequences, it did have some unexpected effects on jurors’ understanding of their role, particularly when it came to assessing the credibility of witnesses. The bottom line is that, across race conditions, the implicit bias instruction did not help defendants, and in some cases might have hurt them. Ultimately, these results underscore the need for specific research on effects of instructions. In this post, I will share three main takeaways.
Takeaway One: Awareness Doesn’t Always Cure Bias, Especially When Bias Is Implicit
Implicit biases are attitudes or habits that affect our judgment and decision making without our conscious recognition. Only recently have they become a subject of interest for the courts. The research team compared a detailed implicit bias instruction with the standard instruction. The detailed instruction reads as follows:
You must decide the case solely on the evidence and the law before you and must not be influenced by any personal likes or dislikes, opinions, prejudices, sympathy, or biases, including unconscious bias. Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention. Like conscious bias, unconscious bias, too, can affect how we evaluate information and make decisions. It is important that you discharge your duties without discrimination, meaning that bias regarding the race, color, religious beliefs, national origin, sexual orientation, gender identity, or gender of the defendant, witness, and the lawyers should play no part in the exercise of your judgment.
The standard instructions was simply this:
You must decide the case solely on the evidence and the law and must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy
In the 120 jury deliberations tested, the instruction did have some measurable differences. Participants were sensitized to bias and more likely to appreciate the importance of resisting bias when they received implicit bias instructions. They were also more likely to self-reflect on their own biases, and to discuss issues of bias during deliberations. That said, there were no significant differences on post-measures of bias, and no significant differences in verdicts when comparing the two sets of instructions.
Takeaway Two: Don’t Expect Jurors to Know What “Bias” Means
One reason for this lack of results, other than the fact that implicit biases are, after all, implicit, is the fact that jurors did not seem to apply a clear understanding of bias. Implicit bias is most likely to come up in a courtroom in connection with race. In criminal cases, the issue of implicit bias centers on whether minority defendants and witnesses face discrimination based on implicit judgments. But interestingly, jurors in this study were highly unlikely to understand or talk about bias in racial terms — that occurred in only one of the 120 jury deliberations. The authors note, “our findings indicate that the lesson about bias that is conveyed by the instructions was so generalized that most groups did not explicitly identify racial bias as a problem to be avoided. Rather, bias was often articulated as any negative assertion about any of the legal actors in the case…”
In many cases, they jurors equated “bias” with “opinion.” For example, several juries made the decision to not begin deliberations with a vote of where they stood in order to avoid “bias.” There are some good reasons to hold-off on voting until they’ve had a chance to hear each other, of course, but the simple expression of a current opinion on the case is not a “bias.” Courts and academics should consider adding more concrete language to give jurors a better idea of what a bias is, and where racial discrimination is the concern, they should consider making that explicit.
Takeaway Three: Realize That Half-Understood Instruction Can Be Dangerous
When the instructions emphasized implicit bias, the researchers saw many instances of the concept of bias being “weaponized” as part of the jury’s argument. It became a way to say that someone who disagrees with you isn’t following the instructions. This occurred in more than 20 instances. That is a good thing as long as the person really isn’t following the instructions. But in many observed deliberations, the instruction was used to discourage critical scrutiny of the government’s witness and their motives. For example, when one of the jurors said they should use “common sense” in assessing the credibility of a witness with the motive to lie, another responded that this would be impermissible bias. When another juror referred to their own experience with law enforcement, that was also termed a “bias.”
This seemed to be a result of the concept of subconscious bias being understood only in the most general terms. One juror commented, “The defendant keeps trying to name an emotional plea, specifically towards the end at their conclusion by… emphasizing Smith’s [the government’s witness’s] past, so in doing so, he is subconsciously creating a bias in the minds of many people.” The fact that the prosecution witness was actively selling illegal drugs while at the same time being the state’s confidential informant would, to most, be a substantive part of the assessment of credibility. But that reaction was treated as a bias by other jurors who wanted to support that testimony in order to support conviction. As one juror noted, “I feel biased if I’m judging his [the informant’s] character and making a decision on whether or not this testimony is credible….” The researchers conclude, “Mock jurors — seemingly in good faith — interfered with their own and their peers’ lawful and appropriate assessments of witness credibility, which was an absolutely essential task in the case we presented.”
The bottom line is that, given the mixed results with instructions that mention implicit bias, and the possibility of unintended consequences when jurors consider implicit bias, it’s clear that biases must be addressed at the beginning of the trail rather than at the end. Jury selection ultimately will matter much more than jury instructions.
Other Posts on Jury Instructions:
- Instruct Jurors on Unconscious Bias
- Embrace Plain English Jury Instructions
- Just the Instructions, and Nothing But the Instructions: Increase the Salience of Jury Instructions
Lynch, M., Kidd, T., & Shaw, E. The Subtle Effects of Implicit Bias Instructions. Law & Policy. URL: https://doi.org/10.1111/lapo.12181