Dateline: April, 2022, Issue 2
Judges are increasingly using implicit bias instructions in jury trials. Implicit bias instructions are meant to educate jurors, transform what is implicit or unconscious into something recognizable to jurors, and steer jurors away from relying on implicit biases when considering evidence and making judgments.
Lynch and colleagues (2022) explored the effect of an implicit bias instruction (warning about unconscious bias) versus a standard explicit bias instruction (warning about the need to avoid prejudice) in the context of possible racial bias in a mock trial study involving over 600 mock jurors. All mock jurors watched a 70 minute trial video of a criminal case based on an actual federal narcotics conspiracy trial in which an FBI informant testifies against a defendant charged with conspiracy to sell cocaine. The trial video featured opening statements from the prosecutor and defense attorney, followed by the testimony of two prosecution witnesses: an FBI agent and an informant. The defense attorney cross-examined both witnesses. The defendant did not testify. In all versions of the trial video, after the witness testimony concluded, the Judge read not only a bias instruction, but also other relevant instructions drawn from the actual case transcript including duties of jurors, elements of the offense charged, burden of proof, presumption of innocence, witness credibility, and the defendant's right not to testify.
Mock jurors saw one of eight versions of the trial video, with the versions differing in whether the defendant's race was Black or White, the informant's race was Black or White, and the bias instruction read by the Judge was an implicit bias instruction or a standard bias instruction. Mock jurors first reached individual verdicts, after which they deliberated in person in one of 120 juries consisting of four to seven jurors, with the jurors on each jury having viewed the same version of the trial video.
Jurors noticed the implicit bias instruction. Jurors hearing the implicit bias instruction were more likely than jurors hearing the standard bias instruction to believe being unbiased was the most important duty of a juror. Jurors hearing the implicit bias instruction also were significantly more likely than jurors hearing the standard instruction to discuss bias-related issues in their jury deliberations. Bias was raised as a discussion point during deliberations twice as often when jurors heard the implicit versus standard bias instruction, coming up at least once in 45% of juries given the implicit instruction versus 23% of juries given the standard instruction.
The implicit bias instruction was used positively by some jurors and juries. Jurors hearing the implicit bias instruction self-reflected on their own biases more during deliberations than did jurors hearing the standard instruction. Some juries hearing the implicit bias instruction also explicitly aimed for a fair, unbiased process when discussing the facts of the case, suggesting that these instructions can promote meaningful discussions focused on unbiased legal requirements to determine a verdict.
Despite the implicit bias instruction being noticed by jurors, it did not reduce racial bias. The verdicts of jurors and juries hearing the implicit instruction were no different than the verdicts of jurors and juries hearing the standard instruction. Interestingly, jurors did not explicitly link implicit bias to either race or racism, nor did the implicit bias instruction reduce biased cognitions across three different measures of racial bias (racial resentment, racial empathy, and biological beliefs about race).
Disturbingly, the implicit bias instruction was used by some jurors and juries in troubling ways. Jurors hearing the implicit bias instruction were more likely than jurors hearing the standard bias instruction to use the bias instruction in deliberations (1) as a rhetorical weapon (by calling out or accusing other jurors of bias when disagreement arose) and (2) to discourage critical scrutiny of witnesses (by considering credibility assessments of the witnesses to be signs of bias against the witnesses). The charge of "bias" was a particularly powerful accusation in juries hearing the implicit bias instruction given the heightened perceived value of being unbiased among these jurors, and this charge occurred twice as often in juries hearing the implicit versus standard bias instruction. In more than a quarter of the juries hearing the implicit bias instruction that discussed the problem of bias, mock jurors in good faith interfered with their own and their peers' lawful and appropriate assessments of witness credibility.
The researchers conclude that implicit bias instructions better attune jurors to avoid bias, but the instructions do not alter verdicts and, while the instructions can be used positively, they also are weaponized by jurors during deliberations.
Source Lynch, M., Kidd, T. & Shaw, E. (2022). The subtle effects of implicit bias instructions. Law & Policy, pp. 1-27, in press. https://doi.org/10.1111/lapo.1218