Biases distort judgment. It’s as simple as that. They skew how we think, what we believe, and the value we set when we judge the pain and loss of others. And of course this is not limited to law, lawyering and courts – the problem is everywhere.
For example, studies have shown that in medicine implicit biases can lead to judgments where “participants who endorsed more of these beliefs reported that a black (vs. white) target patient would feel less pain and they were less accurate in their treatment recommendations for the black (vs. white) patient.” Hoffman et al., “Racial bias in pain assessment and treatment recommendations, and false beliefs about biological differences between blacks and whites,” PNAS April 19, 2016 113 (16) 4296-4301
Courts have tried to reduce its impact – witness the federal court in Washington State with its “unconscious bias juror video” for prospective jurors, https://www.wawd.uscourts.gov/jury/unconscious-bias , or the jury instructions used in the Ninth Circuit that
You should not be influenced by any person’s race, color, religious beliefs, national ancestry, sexual orientation, gender identity, gender, or economic circumstances. Also, do not allow yourself to be influenced by personal likes or dislikes, sympathy, prejudice, fear, public opinion, or biases, including unconscious biases. Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention. Like conscious bias, unconscious bias can affect how we evaluate information and make decisions.
These are noble exhortations, and may alert some and lead to introspection. But two recent court actions have gone beyond education and imploring and instead of set specific barriers between lawyers and their biases. They are New Jersey and Arizona.
New Jersey: Recognizing that the Batson limit on jury strikes applies only when it is proved that a party acted intentionally, i.e. with overt racial animus, the New Jersey Supreme Court turned to its state Constitution in July to ban “efforts to remove jurors on account of race either when a party acts purposely or as a result of implicit bias. In both instances, a peremptory challenge can violate the State Constitution, depending on the circumstances.” State v. Andujar, 2021 N.J. LEXIS 733, *47, 2021 WL 2932543
What is particularly noteworthy is an express restriction the Court used to reduce the opportunity for implicit bias to affect jury strike decisions. It radically limited the ability of prosecutors to run criminal record checks on prospective jurors – a tool used against a Black venireperson in Andujar’s case after a challenge for cause was rejected. That record check showed a pending warrant and led to the arrest of the individual, preventing jury service. The Court’s concern was clear – the criminal record search came after the prosecutor stereotyped the venireperson:
[I]t appears from the record that the State did not want F.G. seated as a juror because of his relationships with multiple individuals who had committed crimes or were victims of crime. F.G., a Black male from Newark, admitted he grew up in a neighborhood where many residents sold drugs, including a number of his friends. He said he knew them and was familiar with their lifestyle but explained he did not follow their path. He also explained that he was familiar with certain language used in the criminal justice system, like “CDS” and “trigger lock,” from the “neighborhood.”
Declaring implicit bias to be part of the state constitutional calculus was not the finale for the Court – it granted Andujar a new trial and directed that a conference be held to “explore the nature of discrimination in the jury selection process. It will examine authoritative sources and current practices in New Jersey and other states, and make recommendations for proposed rule changes and other improvements.”
Arizona: On August 24, as one of a number of actions taken regarding various court rules, the Arizona Supreme Court made a simple declaration, granting a proposal that “WOULD AMEND ARIZ. R. CRIM. P. 18.4 AND 18.5, AND ARIZ. R. CIV. P. 47(E) BY ELIMINATING PEREMPTORY CHALLENGES IN JURY SELECTION.” This action hearkened back to the words of Justice Thurgood Marshall who, concurring in Batson, wrote that “[t]he inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system.”
Where this will lead can only be guessed, but the Arizona Supreme Court recognized that alternatives may be needed to ensure juror fairness, directing that
the Task Force on Jury Data Collection, Practices, and Procedures is requested to consider whether [the relevant civil and criminal rules governing voir dire] should be expanded or otherwise modified with respect to for-cause challenges to accommodate the abolition of peremptory strikes.
The risk in Arizona is clear – without meaningful, open-ended voir dire and a robust regime for finding cause, ‘impaired’ jurors will be seated. But the cost of inaction is also clear and reflects the long-overdue recognition that if implicit biases can’t be tamed then opportunities for their influence must be reduced.