March 22, 2023
By Eric Brewer
The Sixth Amendment guarantees defendants to an impartial jury, yet racial and other biases can show up in juries of your peers. One of the primary reasons for this disparity is the persistence of implicit bias. Implicit bias occurs automatically and unintentionally; nonetheless, it shapes perceptions and behavior. Courts across the nation are adding information on implicit bias in their juror instructions to remedy this problem.
At least 16 states have begun to develop jury instructions to address the issue of implicit bias. Model jury instructions in the state of Arkansas, updated in November 2022, implore jurors not to let “bias, prejudice, or public opinion influence (their) decision” including biases they are not “fully aware of.” The hope is that if jurors are aware of their own implicit biases, they will be able to mitigate them and ensure a fairer trial.
A study published in January 2022 by psychology researchers at the University of California-Irvine highlights three core problems courts face when implementing these instructions:
- Awareness alone does not always cure bias. Even when jurors self-reflected on their biases during the test trial, there were no major differences in verdicts when comparing the two sets of instructions.
- Many jurors misunderstand what bias actually is. In the study, mock jurors frequently conflated “bias” with “opinion.” Jury instructions must be clear in their language and not presume any prior knowledge.
- Half-understood instruction can cause additional problems. Researchers found that the concept of bias was weaponized in arguments to discredit other opinions. Mock jurors also second-guessed appropriate assessments of witness credibility.
Moreover, the effort to educate jurors can come across improperly. Some jurors may outright reject the prospect that they might be biased.
Despite all of these issues, data trends laid out in an NCSC report provide some basis for optimism. While new research shows that it is incredibly difficult to eliminate the roots of bias entirely, there are effective interventions that teach people how to override their automatic gut reaction with a more egalitarian response. This approach has produced observable behavioral changes that last for months after the intervention has ended. Furthermore, the mere presence of people who belong to other social groups or that hold progressive beliefs can reduce prejudice in others.
Currently, there is insufficient evidence to definitively say whether juror instructions on implicit bias have a significant effect on juror behavior. This is an area for future research. For now, jury instructions ought to be seen as an important tool in an arsenal of other anti-discriminatory measures, not a catch-all solution. Courts should simultaneously explore other avenues for mitigating bias, such as in the juror selection process.
Has your court implemented implicit bias juror instructions? Share your experiences with us. For more information, contact Knowledge@ncsc.org or call 800-616-6164. Follow the National Center for State Courts on Facebook, Twitter, and LinkedIn.