By Dr. Ken Broda Bahm:
Within the last few years, at least a few courts in the U.S. have started to wake up to some of the realities of the cognitive biases that can be an obstacle to a fair criminal or civil trial. For generations, courts have acted as though potential jurors could easily know and effectively shut off those biases. In many courts, of course, that is still the practice, with judges in effect clearing jurors with the question, “So you’re not biased, or you can set it aside? Good. Next.” But in a few jurisdictions, courts are grappling with the reality that many of the most important biases are implicit, and not subject to rational awareness and control.
One such jurisdiction is the U.S. Court in the Western District of Washington state. In 2017, that court adopted an 11-minute educational video played to prospective jurors as part of voir dire, with the goal of reducing the effects of implicit bias. Even as some version of that approach has been adopted by other courts (including the Northern District of California, and the State of Minnesota) there has been a shortage of data showing that this debasing strategy actually works. When Washington adopted this approach, I wrote an earlier post, sharing the video and writing about how in some ways it, but not all ways, it is a step in the right direction. At this point, the first study has come back, and the news isn’t good. The short version is that we can’t count on implicit bias in a legal context being fixed with a simple warning. In this post, I’ll write about that research and its implications.
The Research: The Washington Juror Bias Video Doesn’t Work
Researchers from Texas State and the University of South Florida (Jones, Wong, Meyers & Ruva, 2022) looked at the effectiveness of the Western District of Washington’s juror bias video in the context of one well-studied bias: pretrial publicity. They assigned 330 research participants to review either publicity on a specific case, or to review unrelated articles, while also randomly assigning them to, after an average of nine days, either view the bias video or not, before hearing and deciding the issues of a criminal case.
The basic finding on the effects of pre-trial publicity was confirmed: Those exposed to pretrial publicity found the defendant less credible, and more culpable, and they were more likely to convict. This was true despite the fact that more than half of them did not recall reading information about the case – in other words, the influence was implicit.
But the biggest finding was that, whether they watched the bias video or not, they were equally influenced by the pre-trial publicity: “None of the PTP-induced biases reflected in verdict, culpability, and defendant credibility judgments dissipated when participants received the educational video.”
Worse than that, the video also appears to create an anti-defendant bias in those who were not exposed to the pretrial publicity. Among that group, the defendant was found less credible, suggesting that, in the act of sensitizing jurors toward a potential bias, the video might also be subtly seeding doubt about the defendant. While this latter finding might be confounded by the pandemic (because they saw significant differences in the degree of punitiveness exhibited before and during the covid restrictions), the main finding is that we can’t count on the video to correct or even mitigate implicit bias. “The goal of the Washington ‘Unconscious Bias Juror Video’ is to define implicit bias and motivate jurors to self-correct,” the researchers concluded, “However, the results of the current study suggest this is not the outcome.”
The Implication: There Are No Quick Fixes
Though the research in this case focused on a specific bias relating to pretrial publicity, there are good reasons to believe that the explanation for the video’s failure comes down to the nature of bias itself and not the specifics of that particular bias. I think there are a couple of broad conclusions that relate to biases in general.
Awareness Is an Important but Imperfect Tool
An unconscious or implicit bias isn’t an aberration or a sickness. Rather, it is a side-effect of the way we think. What has been called “System One” thinking is associated with intuitive, automatic, implicit, and emotional processing, and that is distinct from “System Two” thinking which is slower, conscious, effortful, and logical. While we like to think we rely on System Two thinking for important decisions, more often than not, we will at least start with System One.
In that context, educational efforts like the video are designed to shift people from System One to System Two, making them more conscious in their reasoning and more skeptical of their own quick and reflexive judgments. That sounds like it should work, and at least at an awareness level, that can work. For example, the authors report on research on training of police officers showing that a focus on implicit bias resulted in increased knowledge and awareness. Unfortunately, it does not result in a change in arrest behavior. Ultimately, behaviors based on implicit biases appear to be too complex to be remedied through awareness alone.
If There Is a Cure, It Is Probably Interactive
The study authors also report on mixed evidence on the effectiveness of counter-bias instruction as it applies in court. So called “consider the opposite” exercises that invite persuasive targets to think about how they would have evaluated a piece of information if it had come to the opposite conclusion have been shown to be successful, but these interventions also work best when they are interactive rather than being just one way communication. Actions that ask targets to, in effect, “list some reasons why you might be wrong” can work in reducing over-confidence due to the participation that it elicits.
While those kind of tasks are quite difficult to meaningfully apply in the context of voir dire, I do think there are two implications courts should take from the results indicating that they work. One is that courts should at least be allowing the interaction that comes in the form of back-and-forth questioning with attorneys during oral voir dire. The second implication is that if there is good reason to believe someone is or could be biased, you should believe that more than you believe their assurances to you that they can set it aside.
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Other Posts on Debasing:
- Add “Debiasing” to Your Trial Communication Vocabulary
- Pre-instruct Your Jurors on Hindsight
- Remember, You Can’t Refute a Bias
Jones, A. M., Wong, K. A., Meyers, C. N., & Ruva, C. (2022). Trial by Tabloid: Can Implicit Bias Education Reduce Pretrial Publicity Bias?. Criminal Justice and Behavior, 49(2), 259-278.
Image credit: Shutterstock, used under license