Abstract

Excerpted From: Dave McGowan, Implicit Bias and Jury Trials, 53-FALL Brief 42 (Fall, 2023) (75 Footnotes) (Full Document)

Implicit bias concepts are advancing in the law. They may be seen in mandatory continuing legal education requirements, jury instructions, rules for selecting jurors, and, in two notable cases from Washington--State v. Berhe and Henderson v. Thompson rules governing post-verdict challenges. At the same time, psychologists are tempering claims once made for implicit measures of bias, such as the Implicit Association Test (IAT). They caution against using the test to select jurors, for example, and warn that IAT data should not be interpreted as identifying a person as racist or likely to engage in racist behavior. Current scholarship focuses on implicit bias concepts as educational and research tools that might heighten public awareness, as opposed to diagnostic tools to decide specific cases.

Washington's experiment is to borrow from a jury selection rule a standard for determining whether a verdict is tainted by implicit bias. Under this standard, a prima facie case of taint can be shown if a reasonable person schooled in implicit bias could perceive race as a factor in a verdict, in which case the verdict is vacated unless the prevailing party proves such bias was not a factor. Proving such a negative is not feasible as a practical matter, however, because Washington has declared implicit bias to be pervasive, impervious to introspection, and undetectable by direct inquiry. Relative to prior law, this experiment uses implicit bias rhetoric to make it harder to exclude jurors through peremptory challenges and then uses the same rhetoric to make it easier to disregard verdicts.

The motivation for this experiment is laudable. The Washington Supreme Court wants to make jury rooms (in Berhe) and courtrooms (in Henderson) less hostile to Black persons. The decisions issued in each case contain useful insights. However, each case also provides a cautionary example of the limits of implicit bias rhetoric in assessing verdicts. Implicit bias concepts do not tell judges how to distinguish tainted verdicts from others.

Use of implicit bias rhetoric to justify limits on peremptory challenges is valuable because a permissive rule for seating jurors is desirable. Such a rule strengthens juries as the voice of a community. But this rhetoric should not be used to justify presumptions that discard jurors' work, both because nothing in IAT data or other implicit bias research justifies such use and because a permissive rule for disregarding verdicts undermines that voice.

Washington is grappling with an important question: How should courts deal with jury trials where the record makes witness credibility fair game, stereotypes exist, words may have both literal and nonliteral meanings, and implicit bias premises have been endorsed as a matter of law? This article proposes that evidence of explicitly racist language or conduct should not be a necessary condition for challenging a verdict on the ground of racial taint, nor should a finding of intentional misconduct be required, but a claim of implicit bias should not trigger a presumption of bias and the prevailing party should not be given the impossible task of disproving the effect of a presumptively pervasive force. Instead, deference should be given to trial judges who can and should assess both what is said in court and what it means in the context of a specific case.

[. . .]

Stereotypes and biases are real, ostensibly neutral words can sometimes convey racist meanings, and the law must balance the interests of parties in a fair trial and the interests of jurors in being taken seriously as the voice of the community rather than being dismissed as presumptive victims of forces they cannot perceive. How should the balance be struck? Procedures may vary but certain points are key. Meaning is a contextual, factual issue, and whether a comment that is not explicitly racist was fair argument or a veiled racist appeal is a fact issue for the trial court, to be reviewed for substantial evidence. Trial judges should have independent power to find that an argument was impermissible and to enter appropriate sanctions; no finding of intent should be required. In all but egregious cases in which it would be an abuse of discretion for a trial court not to intervene, absence of an objection should be deemed substantial evidence that a comment was not a veiled racist appeal.

This approach is not perfect, but none will be. It does put most of the weight in the courtroom--where it belongs. The trial judges in both Berhe and Henderson said that they were familiar with implicit bias teachings, and there is no reason to doubt that. They also said that those teachings alone were not enough to decide specific challenges and that verdicts should not be overturned on possibilities or presumptions. They were not wrong.

Dave McGowan is the Lyle L. Jones Professor of Competition and Innovation Law at the University of San Diego School of Law. He teaches legal ethics and wrote Developing Judgment About Practicing Law, an ethics casebook published by West.