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Court Deals With Hidden Biases in Jurors

By William Vogeler, Esq. | Last updated on

It's one thing to release a juror who has an admitted bias, but what to do about a juror with a subconscious bias?

We're not talking about the jurors who are actually biased. Let's face it, most prospective jurors will let you know when they cannot be fair.

We're talking about jurors who don't realize they harbor a prejudice. It is a troubling problem for the courts, but at least two federal courts in Washington are trying to deal with it with a new video.

"Unconscious" Bias

The U.S. District Court for the Western District of Washington has produced a video that judges use to complement the voir dire process. It features three speakers -- two attorneys and a judge -- who talk about the issues with "unconscious," or the subconscious, bias.

"It's been proven that most biases happen at an unconscious level," says Judge John Coughenour. "In fact, researchers have found that unconscious bias is part of how we all think and process information."

Jeffrey Robinson, a deputy legal director of the American Civil Liberties Union, explains that everybody has such biases.

"It's the set of automatic preferences deep in our brains that instantaneously influence our decisions and how we perceive people and situations without conscious awareness," he says in the video, which cost $15,000 to produce.

Challenges and Cause

While jurors may be challenged for bias, it is another thing for them to identify it in themselves. Calvin Lai, a researcher at Harvard's Project Implicit lab, says it is difficult to change behavior.

"Simply understanding that your biases exist doesn't necessarily mean you're going to stop yourself from acting on them in the moment," Lai told the ABA Journal.

In a study of more than 700,000 people, most people said they had no preference between black and white people. However, the same study showed that 70 percent of the respondents showed a subconscious preference for whites over blacks.

Harvard's project, which is administered online, allows respondents to screen themselves for biases based on race, religion, disability, and other human characteristics.

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