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Judicial Take on Bias in the Court

By William Vogeler, Esq. | Last updated on

The wheels of justice may turn slowly, but changing bias in the courtroom may take quite a few more turns of the big wheel.

Studies say that attitudes about bias in the legal system have not really changed in more than half a century. Across most of America, minorities don't think they can get a fair result in court.

Bias seems to be, for lack of a better word, "implicit" in the judicial system. The experts say it is not a criticism; it's just human nature.

Implicit Bias

Research, particularly a Harvard test, shows that everybody is biased -- they just don't know it. You can take the test here.

The last time FindLaw counted, more than 700,000 of the test-takers believed they had no preference between black and white. But the test showed 70 percent of them had a subconscious preference -- an implicit bias.

"All humans are biased," says Sarah Redfield of the University of New Hampshire School of Law. "To be human is to be biased."

She is the editor of "Enhancing Justice: Reducing Bias," published by the American Bar Association. Judge Bernice Donald of the U.S. Sixth Circuit Court of Appeals is one of the authors.

They recently talked about the book and implicit bias on an ABA podcast. They agree it's hard to recognize in yourself, and it's hard to change.

Hard to Recognize

Donald said studies revealed that not much has changed about courtroom bias over the years. Ten years ago, she said, the Rand Corporation found no change in 50 years.

"From a percentage standpoint, the needle hadn't moved," Donald said. Judges need to recognize it and do something about it, she further explained.

Last year, a federal court in Washington produced a video for jurors to evaluate their own bias. It is now making its way through the appeals court, where plaintiffs' have complained that a judge denied their expert on implicit bias.

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