Nassar, J 10 GT 1

Jannah Nassar

10 GT/ 2

Ms. Mary Jane Sasser

Independent Research I

February 18th, 2020

A Partially Impartial System: Implicit Bias & Effect in the Courtroom and On Juror
Decisions.

Imagine a man of color standing before the court. He was picked up on the street and

accused of murder. He tries to appear tough, but he is trembling inside. This case is all too

familiar. The evidence is not sufficient yet he is still sentenced. The jury appears content but

their biases clouded their vision. This innocent man is now convicted. Implicit bias affects

millions across the world; leaving minorities with unfair rulings as a result of these biases. For

instance, according to the National Registry of Exonerations, as of October 2016, African

Americans constitute 47% of the 1,900 exonerations in America and make up the majority of

more than 1,800 innocent defendants who are framed, due to unfair biases, and convicted of

crimes. In addition, innocent African Americans are seven times more likely to be falsely

accused than innocent white Americans (Michigan Law). Although African Americans face the

statistical majority of courtroom bias, all minorities face a plethora of implicit biases that affect

their daily routine. When this bias is unconscious, it is known as implicit bias. Oftentimes it is

jurors who have had minimal actual interaction with people of different ethnic groups and

nationalities that are more likely to hold implicit biases toward defendants who are members of

those ethnic groups. Depictions of minority groups and stereotypes from the media create
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inaccurate stereotypes that infiltrate the courtroom leading to implicit bias and shaping the

opinions of jurors.

Society is constantly creating new categories to place people under. Categorizing and

stereotyping people is actually a means of problem-solving. Although it is not perfect, these

mental shortcuts, known as heuristics, are intended to increase the probability of arriving at the

right conclusion when a person has limited information available (Marinakis). Imagine an

American has two friends, both of whom are British. If the American is ever put in a situation

where they have to pick between a person from Britain or Germany, they would pick the British

person because of implicit biases they have unconsciously formed. These biases are formed

because the American has experiences and encounters with the British person making them

unconsciously favor them over the German. Implicit biases stem from one’s surrounding

environment and from society. One of the biggest ways to overcome implicit bias is through

having a diverse group of friends or acquaintances (Nava). For example, suppose the American

now has a British and a German friend. When he or she has to pick between a British or German

person, these heuristics are reduced and the implicit biases are now in favor of either ethnicity

because he or she has developed a relationship with both groups in the past. Unconscious biases,

also known as implicit bias, are unknown, which causes them to be even more dangerous and

problematic; a person may have bias without even realizing it. Although implicit bias is

everywhere, one of its largest impacts is in the courtroom. Justice Thurgood Marshall stated that

even as a justice on the Supreme Court, he felt that implicit biases had always created suspense

and curiosity when they entered in the courtroom, revealing the need to put an end to unfair

rulings that resulted from implicit bias (Yokum et al.). Often times, implicit bias comes when

someone has heard stereotypes or never encountered an experience with another demographic.
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Typically in a trial, when jurors evaluate witnesses and make decisions about the facts, they use a

multitude of social cognition, another form of implicit bias (Marinakis). Through experiences

and the media, humans associate certain characteristics with specific groups of people, including

race, gender, and nationality. This stereotyping becomes problematic when dealing with

individuals for two reasons. First, each person is unique, and though characteristics may be

common to some members of the group, they do not apply universally to all members of the

group. Second, stereotypes may not be based on facts. Instead, biases are shaped by inaccurate

portrayals of the group in the media (Tufts). As a result, stereotyping frequently results in bias or

unfair discrimination.

Moreover, society is constantly creating new categories in which people are placed. On

the positive side, categorizing and stereotyping people are actually quick means of problem-

solving. Although not perfect, these mental shortcuts, known as heuristics, tend to increase the

probability of arriving at the right conclusion when a person has limited information

(Marinakis). However, typically these heuristics are based on inaccurate stereotypes portrayed in

the media. The stereotypes then form unconscious biases. The biases create an unfair

environment in the courtroom and affect the jurors' decisions. A case shall be presented to a jury

that “must represent the surrounding community,” however this does not necessarily mean that

the jury is fair for the witnesses on trial (Sleek). As a result, this encourages biased judgments as

there is not an accurate representation of the defendant; leaving the jury to rely on unconscious

biases portrayed in the media against these ethnicities. One example would be a minority being

tried against an all-white jury. For instance, in 1967 the first African American, Justice

Thurgood Marshall, was appointed into the Supreme Court. Prior to this, all African American

defendants had no representation. When a case deals with a juror that has a limited number
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of interactions with people from the same nationality as the defendant, the juror relies on

implicit biases based on stereotypes or past stories, leading to unfairness.

When a jury has little to no information on a defendant, human nature is to use any

implicit biases to weigh out certain factors (Palovin). New research on implicit bias from Tufts

University indicates that “a jury’s racial composition can influence its decision-making processes

and its final decision” (Tufts). Moreover, juries composed of one race are more likely to convict

an innocent defendant than a racially-diverse jury. A 2006 study by Sommers provides evidence

of the effects of heterogeneous vs homogenous juries. Sommers's study explains the racially

diverse juries spent more time discussing trials and information. The reason being that diverse

juries allow for all members of the group to deliberate the evidence (Marnkais). Therefore, a

homogenous jury with scarce experience dealing with a minority witness may use stereotypes

heard in the media and social cognition to form implicit biases causing them to favor one side

over another.

In a 2014 case, Glenn Ford was exonerated after 30 years on death row in Louisiana.

Years after his case had been decided, attorneys found that “a testimony by the state’s expert

witnesses was false; police officers lied to the jury about what Ford said to them; hidden police

reports included tips from informants that implicated two other suspects. One of these suspects

admitted to committing the murder,” (Michigan Law). Glenn Ford lost 30 years of his life on

death row because of implicit bias that was formed in a courtroom of unfair officers. The lies of

the officers swayed the opinions of the jurors. The UCLA LAW review explains that

homogenous jury panels with inaccurate depictions of minorities form implicit biases more often

than a racially diverse jury panel (Jerry Kang, Jennifer Mnookin, et al). If the jury is an unfair

representation of the witness, then the trial cannot be fair. A jury is extremely influential in the
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ruling of the case, and by giving opportunities for unfair jury pools, there is more room to create

implicit bias and unjust opinions.

Apart from this, the media affects ways in which the brain can function. In an essay

published by Atlantic Monthly, the author explains how the media and internet seem to

manipulate the way the brain operates, especially in memory and concentration (Waters and

Hannaford-Agor). Research suggests the same occurs when biases are formed; the information

the media shares affects a brain’s concentration and causes people to believe the stereotypes and

puts a positive or negative connotation with the stereotype. For these reasons, a heterogeneous

jury is essential to filter out inaccurate stereotypes. A recent Tufts University study found that

“jury deliberations tend to be more thorough with a broader range of perspectives considered

when a jury is racially diverse versus homogeneous” (Symton). Heterogenous jury panels are

composed of multiple races whereas homogenous panels are jurors all from the same race or

background. Due to the diverse cultures, upbringings, and traditions of ethnicities, heterogenous

jury panels can analyze a case from multiple perspectives. For the most part, implicit bias is

nothing new, for over fifty years, people have been speaking out against the injustice implicit

bias brings to the courtroom (Gross). U.S. Supreme Court Justice Thurgood Marshall wrote that

a lack of diversity “deprives the jury of a perspective on human events that may have

unsuspected importance in any case that may be presented”(Smyton). Half a century later,

research suggests that he was right.

Thurgood Marshall believed that implicit bias is dangerous in that it creates a space for

“curiosity”. Curiosity entails opinions or ideas that may be made up. However, a courtroom is no

place for curiosity as all decisions should be made based on the evidence, facts, and truth of the

matter. Ultimately a heterogeneous jury pool is needed to potentially ensure that all witnesses are
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understood. Therefore, it is necessary to have a diverse jury pool for an honorable trial to take

place (Kang, Mnookin). By diversifying the jury, a courtroom limits the number of biases

because when it is “a group [making] the decision, [they] might be more likely to avoid the

biases of any one, idiosyncratic individual,” (Wistrich). Multiple jurors with different

backgrounds are more likely to support other nationalities and ethnicities. Human nature is to

defend people of the same race so people are more likely to support those with similar

nationalities as well (Krammer et. al). When a witness is faced in front of a jury pool composed

of nationalities that differ from their own, the witness is automatically at a disadvantage. To

combat the issue, a diverse jury will allow the defendant to have at least one juror with a similar

nationality in order to hear their perspective and other jurors from other ethnicities to share

perspectives. The method allows for the appeal of race as a factor in the trial. The jury panel can

be composed of jurors with perspectives that differ from the defendant but also at least one juror

who shares the same ideologies. The two factors would balance out, creating a more impartial

jury panel. Jurors in diverse juries challenge each other and force one another to argue based on

the evidence, rather than making a decision that might be influenced by implicit biases.

According to a recent Minnesota Law journal, people “generally… act more favorably

towards persons who share with them an important attribute of their identity compared to persons

who differ significantly on that attribute” (Lee). Because some trials are only decided by one

judge, the judge is more likely to rely on their knowledge composed of media stereotypes and

inaccurate assumptions. A jury comprised of multiple people should be able to think about the

case from different perspectives (Axt and Lai). Due to the deceptions of minorities and different

ethnic groups, a juror not exposed to a certain nationality is more likely to formulate inaccurate

and unfair implicit biases, therefore affecting the decision of the case.
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Implicit bias affects court cases every day. Typically, racial and nationality bias is a more

dangerous form of implicit bias because the juror with bias has not encountered the race that they

have a bias against. This can result in very dangerous situations because the jurors are making

life-changing decisions with very little information on the witnesses, except what is heard in the

media (Yokum et al.). It is important that a judge has the right information about witnesses in

order to remain impartial. This would information would entail accurate experiences with the

ethnic group and not consist of any stereotypes. However, when the information presented to the

juror is inaccurate and stereotypical, unfairness is created. Due to the fact that a juror is

making decisions with limited information about the witness, they result in using

information from the media, leading to using inaccurate stereotypes, unfairness in the

courtroom, and uneducated decisions.

Most minorities are at a higher risk of facing more bias due to the media and its effects on

the way people are viewed. In society’s day and age, the media relays the majority of the news,

therefore injecting its opinions and biases into it. For instance, an influencer may speak out

against injustice; if you support the influencer they may sway your beliefs too. These opinions

stick with us and help formulate our opinions (Smyton). Therefore, the media is extremely

influential and dangerous when used in the courtroom. News outlets and other sources of

information typically create inaccurate statements or stereotypes about minorities, affecting the

way they are viewed in the United States. Because of this, minorities' chances of facing

unconscious or conscious biases is much higher. In fact, the US Military court system, “found

that 10 of the 16 men whom the military has sentenced to death since the early 1980s share a

common trait: they are all minorities (D'Almeida). These men faced the challenge of tackling

implicit biases against their race. The other 6 men were not minorities yet, committed very
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similar crimes and were not sentenced to death. In the courtroom, jurors are forced to rely on

implicit biases due to their lack of experience with people from different ethnic groups causing it

to play a greater role in the juries’ final decisions(Ben-Naer and Krammer).

As explained previously, implicit biases are biases that are created unconsciously,

causing someone to favor one side over the other. Although implicit biases are unaware and

unconscious, they are even more dangerous than explicit bias because the individual is unaware

they exist. Because an attorney is unable to remove them, it is important to acknowledge them so

they can be excluded when determining the ruling. Moreover, “explicit biases, implicit biases,

and structural processes are all involved in producing unfairness in the courtroom” (Kang and

Mnookin).

It is instinct to formulate opinions and favor people, making biases inevitable. However,

this does not mean one should not worry about them. In fact, it brings up the idea that society

must focus on these biases even more. Lawyers need to be able to identify these biases because

a juror will not be able to identify their own biases. Implicit biases cannot be self-diagnosed as

people simply do not see the biases they hold or unable to identify them all if there are multiple

biases (Axt and Lai). For instance, jurors may be humiliated to admit to having biases and will

most likely not share this with the court. Because of this, often times jurors will stay quiet when

asked about bias because they are unaware of it.

A juror may believe that they do not hold any biases because of their positive attitude

toward a specific racial or ethnic group. Although, “a positive attitude does not foreclose

negative stereotypes and vice versa” (Wistrich). A person can have an overall positive attitude

toward someone but they may still associate them with negative ideals. This is because implicit

biases are rooted in a person’s subconscious mind. For example, according to a UCLA law
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review, one may have a positive attitude toward a certain racial group but their subconscious

mind may still associate them with negative thoughts due to stereotypes, inaccurate stories, or

false statements all coming from media outlets (Sleek). These attitudes and stereotypes are

explicit; however, the bias is implicit because they believe they have a positive attitude toward

them but are not aware of the negative aspects that stem from the explicit biases the media

releases.

Implicit biases are not only dangerous because of their tendency to discriminate against

minorities, but, they are also dangerous because of their unfairness in the courtroom and the fact

they are unconscious. When presented a case, it is necessary that jurors have no prior knowledge

of the case or information on the plaintiff or defendant. However, due to media outlets and their

input, people formulate opinions based on stereotypes, creating biases and causing them to favor

one side over the other. These depictions of minorities lead to media infiltration in the

courtroom, inaccurate facts, and swayed decisions.

In the courtroom, media infiltration greatly affects whether a judge is impartial or not,

establishing the need for a media-free courtroom. For example, cases dealing with celebrities or

high-profile defendants are more likely to have biased jurors. This is due to the fact that the jury

will hear facts of the case prior to hearing them in court, giving them time to formulate opinions

and thoughts. As seen in the case of Bill Cosby, the media outlets covered the story in detail

before it reached the court.

It is inevitable that the juror will have heard information about the case before hearing it

in court (Bill Cosby and Bias). It is crucial for jurors to avoid the media when possible because it

is their responsibility to enter the courtroom with no prior knowledge in order to ensure a fair

and speedy trial. Many times when the juror rules on a case with famous figures, it makes
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avoiding biases more difficult. If a juror comes to court with opinions formulated based on what

was said outside of court, then they are already unconsciously favoring a side. Bill Cosby’s case

was highly publicized, making it more and more difficult for jurors to avoid it (Yokum et al.).

Media outlets can have a negative effect on the case as they are voicing their opinions

and if they are false or inaccurate, the juror may have already chosen a side to favor before

entering the courtroom, either consciously or unconsciously. These stereotypes often target

members of minority groups. According to the national registry of exonerations, over 95% of

exonerations from 1995-2017 were of minority groups, supporting the idea that minorities are

more likely to face bigger consequences for the same crimes (Ben-Naer and Krammer). Implicit

biases formed from media outlets can be considered to be most dangerous as they are formulated

unconsciously based on inaccurate statements. Society jumps to judging those of different ethnic

groups causing implicit biases to form while creating unfairness in the courtroom.

Overall, unconscious bias can cause innocent people to suffer from unfair situations due

to the effect of implicit biases in the courtroom. In 1998, The Implicit Association Test (IAT)

was created and was used as the new method revealing implicit biases. The IAT is very

beneficial for jurors to use to uncover biases they may hold, often times jurors take the exam

prior to ruling on the case; in order to remove any biased jurors. A decade later, it is used to

allow jurors to uncover bias to prevent unfairness in the courtroom. Implicit bias controls the

ruling of a case as a juror can not easily dismiss these thoughts. That being said, it is important

for jurors to have impartial opinions and avoid media as it creates these implicit biases. Implicit

biases are inevitable as they are human nature. However, they are necessary to address in order

to limit and take into account when ruling on a case. Every witness and attorney should be aware

of the implicit biases that they may face to allow them to tackle any obstacles the bais may bring.
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By ensuring every juror takes the IAT, one can feel comfortable that the court will take into

account the bias the juror has based on the IAT. A juror will fail to diagnose their own bias, it is

a fact. The IAT scores the juror and will reveal biases they have and toward what ethnic groups.

This information is crucial to revealing biases a juror holds. Therefore, it must be a requirement

for all jurors to take the IAT prior to ruling on a case; to reveal any implicit biases they may

hold.

In order for a juror to properly self diagnose themself with bias they must pass Pretrial

Publicity (PTP) which lays out the requirements to properly self-diagnose bias. A “person must

(1) be aware of mental contamination; (2) be motivated to correct the bias; (3) beware of the

direction and magnitude of the bias and (4) able to adjust their response to the bias. Often times

jurors will fail in at least one step of the process, making implicit bias almost impossible to self

diagnose (Lee). Consider a juror who has been exposed to PTP, they portray a defendant

negatively based on fact not admissible to the trial. To keep the bias from influencing the

decision, they must realize PTP has affected their decisions, second they must counteract the

influence of PTP. Third, they must be aware of the direction of the shift in attitude toward the

defendant, which can range from 5%-85%. The strongest case was Kerr v Miller which

manipulate the PTP by asking jurors a series of questions, the case concluded that PTP had an

impact on juror votes and verdicts.

There are multiple biases that may be present. Explicit bias, a bias that one is aware of

and typically so are the surrounding members. Implicit bias, biases one is unconsciously holding.

Finally, there are structural biases. These are biases when evidence is presented in support of one

side over another. The UCLA Law Review explained all three using the following example.

Consider someone debating whether to purchase a cheeseburger or a salad, they choose the salad
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because they believe eating meat is bad for one’s health. This person holds prejudice against

meat; creating explicit biases. They are agreeing to favor the salad. Now, the same person

chooses between salad and a cheeseburger again. This time they chose the salad because they

recently became more cautious about the environment and unconsciously choose the salad in

hopes of benefiting the environment. This would be implicit biases because they are not aware of

the biases they possess, they unconsciously favored the salad because they have been exposed to

the environment recently. Finally, the same person chooses salad. This time because they simply

could not afford the cheeseburger. This is based on structural bias. The evidence, the amount of

money, only supported one side of the case. They were unable to afford the cheeseburger so they

resulted in choosing the salad. In a real-world application, this would entail a piece of evidence

that supported one side of the case causing the juror to form biases for the side, this would mean

the juror relies solely on evidence.

For over a hundred years, implicit bias has infiltrated our courtrooms creating unfair and

unlawful trials. There are at least two ways to stop this injustice. First, jurors should be able to

take questionnaires, such as the IAT or PTP, prior to the trial to acknowledge any explicit biases.

Second, the attorneys should bring up counter-stereotypical examples to put the case into

perspective. Implicit biases are dangerous in the courtroom as they create unfairness toward

parties and consists inaccurate stereotypes and information. Therefore, unconscious biases are

dangerous and unwanted. American citizens are entitled to the right to a fair trial should be

sustained; however, as the evidence as proven, many minority groups face the constant struggle

of having a fair trial due to implicit biases a juror may form based on limited experience. Society

must ensure that implicit biases do not infiltrate the courtroom to prevent unfairness in the

courtroom. Moreover, jurors who have had minimal interaction with people of different ethnic
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groups and nationalities are more likely to hold implicit biases toward witnesses who are

members of those groups. Depictions of minority groups and nationalities in the media

frequently shapes these implicit biases that infiltrate our courtrooms. Implicit bias is not

only present in the courtroom. The classroom, the field/court, and a professional setting may

all encounter implicit biases. Next time someone faces an injustice think “Could this be based on

inaccurate biases”?

Work Cited

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“Bill Cosby and Jury Bias: Can Jurors Recognize Their Own Biases?” Litigation Insights,
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Brownstein, Michael. “Implicit Bias.” The Stanford Encyclopedia of Philosophy, edited

by Edward N. Zalta, Fall 2019, Metaphysics Research Lab, Stanford University, 2019,
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D'Almeida, Kanya. "Racial Bias in Death Sentencing in U.S. Military." Global

Information Network, 01 Sep 2011. sirsissuesresearcher, https://explore.proquest.com/

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“How Bias Warps Criminal Justice.” Greater Good, https://greatergood.berkeley.edu

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5–10, https://www.uclalawreview.org.

Kramer, Amit, and Avner Ben-Ner. “Do We Prefer People Who Are Similar to Us? .”
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Lee, Conie. “Gender Bias in The Courtroom: Combating Implicit Bias Against Women
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Marinakis, Christina, Personal Interview. 15 November 2019.

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