{"id":3789,"date":"2024-05-02T15:46:26","date_gmt":"2024-05-02T15:46:26","guid":{"rendered":"https:\/\/law.temple.edu\/aer\/?p=3789"},"modified":"2024-04-22T15:51:27","modified_gmt":"2024-04-22T15:51:27","slug":"your-face-is-killing-me-actually-it-may-kill-you","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2024\/05\/02\/your-face-is-killing-me-actually-it-may-kill-you\/","title":{"rendered":"Your Face Is Killing Me (Actually, It May Kill You)"},"content":{"rendered":"

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“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”<\/em><\/p>\n

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The aspirational words of Dr. Martin Luther King, Jr. remain just that \u2013 aspirational, particularly in the courtroom.\u00a0 And were Dr. King to by uttering those words today, he might add that people should not \u201cbe judged by the color of their skin or the furrowing of their brow<\/em>.\u201d\u00a0 Why, because a recent study confirms that facial stereotypes \u2013 how people extrapolate character and trustworthiness from different facial expressions or structures \u2013 can affect judgments in issues as fraught as whether to return a sentence of death.<\/p>\n

Do a web search for \u201ctrustworthy and untrustworthy faces\u201d and you\u2019ll find an abundance of research and images.\u00a0 Here is one visual that typifies what is shown:<\/p>\n

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https:\/\/waitbutwhy.com\/2014\/08\/makes-face-trustworthy.html<\/a> (last visited January 6, 2024).<\/p>\n

Where does this bias originate?\u00a0 A 2022 paper explained that \u201c[f]acial appearance plays a decisive role during impression formation\u2026 Drawing trait inferences from faces occurs extremely fast (i.e., within 100 milliseconds\u2026) and appears early in childhood\u2026[T]rustworthiness judgments tend to guide peoples’ decisions, even when other more diagnostic cues are available\u2026\u201d\u00a0 Panderada et al<\/em>, Can I Trust This Person? Evaluations of Trustworthiness From Faces and Relevant Individual Variables, https:\/\/www.ncbi.nlm.nih.gov\/pmc\/articles\/PMC9127658\/<\/a> (last visited January 6, 20-22).<\/p>\n

But is how someone appears, regardless of what else we know about them, truly a thumb on the scale of justice?\u00a0 A recent research study says \u201cyes.\u201d\u00a0 After surveying the literature, the authors reported that studies have demonstrated that \u201cprisoners in the Florida criminal justice system who were judged to have more untrustworthy-looking faces were more likely to be sentenced to death as opposed to life in prison. They also found that these biases were reflected in naive participants\u2019 hypothetical sentencing decisions\u2026\u201d\u00a0 Hong, Chua and Freeman, Reducing Facial Stereotype Bias in Consequential Social Judgments: Intervention Success With White Male Faces, Sage Journals 2023.<\/p>\n

The three researchers then tried to eliminate or reduce the bias by what they call \u201ccounterstereotype training.\u201d\u00a0 Half of the study participants were shown faces \u2013 all of white males \u2013 that either highly correlated with trustworthy or untrustworthy facial characteristics.\u00a0 Yet each face had a tag line \u2013 typically trustworthy faces might be labeled \u201ctook a bribe\u201d while typically untrustworthy faces might be tagged \u201cvolunteers at a homeless shelter.\u201d \u00a0The other half received no \u201ccounterstereotype training.\u201d \u00a0All study participants were unaware of what was actually being tested, believing this to be a memory exercise.\u00a0 When subsequently confronted with hypothetical guilt\/non-guilt verdicts and sentencing scenarios, those who had undergone the training ended up with reduced \u201creliance on facial trustworthiness in consequential social judgments.\u201d\u00a0 Said more simply, how the person\u2019s face appeared stopped being the thumb on the scale.<\/p>\n

Before hope takes over and we declare victory over biased judgments, several cautionary notes need to be raised.\u00a0 The study authors note that they can\u2019t tell if the \u201ctraining\u201d has lasting effects as opposed to a short-term impact when the training is followed promptly by the decision-making exercise.\u00a0 And if it does work, what Judge will permit this in the courtroom or even allow voir <\/em>dire on the concern.\u00a0 The authors also note that this study was undertaken with only white faces, so whether and how this would play out if racial diversity were also in the mix can\u2019t be predicted.<\/p>\n

The remaining cautionary notes involve race and gender.\u00a0 A compelling study from 2006 showed that even with a cohort of Black defendants facing the death penalty, the more the accused \u2018looked Black,\u2019 i.e. <\/em>\u201cbroad nose, thick ,lips, darker skin,\u201d the greater the likelihood of a death sentence when the victim was white.\u00a0 Eberhardt et al<\/em>, Looking Deathworthy: Perceived Stereotypicality Of Black Defendants Predicts Capital-Sentencing Outcomes, Psychol Sci. 2006 May;17(5):383-6.\u00a0 [Where the victim was Black, the stereotypicality effect was null.]\u00a0 A visual illustrates what was found:<\/p>\n

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Move ahead to 2023 and the focus turns to victim photos, in particular the impact on a trial of having no photos of the homicide victim, post-mortem photos of the homicide victim, or post-mortem and-pre-death<\/em> [normal life] photos of the homicide victim.\u00a0 Using only White mock jurors with a balanced case file, the results were racially skewed.\u00a0 As the authors detail,<\/p>\n