San Diego Law Review
Document Type
Article
Abstract
Implicit bias concepts have been quick to take hold in the law. Their influence may be traced through mandatory continuing education requirements, statutory restrictions on jury selection, jury instructions, and, in two recent rulings from the Washington Supreme Court, judicial limits on juror deliberations and permissible arguments. These limits use implicit bias premises to experiment with altering the balance of interests served by jury trials.
Part II of this Article tells the story of the trial of Tomas Berhe, who was convicted of shooting Everett Williams to death. Mr. Berhe’s case led to an extraordinary event: a live hearing in which jurors were shown an implicit bias video, testified about their deliberations, and were examined and cross-examined by the court and counsel, all for the stated purpose of trying to determine whether implicit bias affected deliberations. Expert testimony from a preeminent implicit bias researcher was heard as well. Prior cases had allowed jurors to submit declarations accusing other jurors of using racist language, accusations that supported an inference that the accused jurors cast racist votes. In Mr. Berhe’s case, the hearing was triggered by a juror’s declaration that her own vote had been tainted by bullying attacks and disrespect that did not involve overtly racist language. The declaration claimed bias against the juror, not the defendant. The tainted vote was the juror’s own.
Part III briefly surveys current research on implicit bias and compares what is presently believed probable with the way the Washington courts use the concept. Data from the most well-known implicit measure, the Implicit Associations Test (IAT), were recounted in Berhe, but they were uninformative relative to the task at hand. If anything, they may have led the court to truncate analysis in unhelpful ways. That is not a general point against the IAT, which is not intended to measure peoples’ ability to perform analytic tasks as a member of a group tasked with analyzing evidence pursuant to instructions, in which each person has the power to block an affirmative decision. Its value as a research tool relevant to social policy is not implicated. Most of the current debate over the IAT and implicit bias theory, including the sharper exchanges on the topic, relate to general policies. This Article’s concern is with individual cases and what tools are most apt for analyzing them.
Part IV assesses Washington’s experiment with respect to deliberations and its increasing use of implicit bias rhetoric. The experiment traces its origins to dissatisfaction with the rule of Batson v. Kentucky, which required a showing of racist intent to reject peremptory challenges in jury selection. The Batson problem was never that lawyers making challenges were innocent victims of unconscious forces, nor was it that inferences of bias could not be drawn from patterns of challenges. The problem identified by scholars and Washington courts was that judges were reluctant to accuse lawyers of making race-based challenges. Both the challenges and the reluctance were conscious processes. Implicit bias concepts sidestepped that problem by allowing judges to reject a peremptory challenge in a non-accusatory way, without fear of reversal, on the ostensible ground that the lawyer might not know their own mind.
Berhe extends the implicit bias aspect of Washington’s jury-selection rule to post-trial analysis of deliberations. It opens jury deliberations to a greater extent than prior exceptions to the default rule that deliberations must remain confidential. But implicit bias arguments are too strong to do the work Berhe tried to assign them. Taken literally, the implicit bias premise entails that all verdicts are tainted by bias, because all jurors are people, and all people are biased. If a fair trial means a bias-free trial, then implicit bias premises entail that a fair trial is a myth. There may be a sense in which that is right, but it is not a sense useful to the law at present. Jury trials are not going away, and if they did, they would be replaced by some other mode of decision to which implicit bias arguments would apply as well.
Part IV argues that courts should not structure inquiries in cases such as Berhe as efforts to discern the influence of implicit bias. There is no point to a hearing whose goal is to detect something the Washington Supreme Court has declared to be pervasive, impervious to introspection, and undetectable by direct inquiry, all premises that Berhe endorses. If inquiries into juror conduct are to look for causes, then the inquiries should be framed as attribution problems: the question should be whether the conduct at issue should be attributed (at whatever threshold a court specifies) to dispositional factors—attitudes, implicit or otherwise—or external facts such as the trial record and jury instructions. It is not clear where such an inquiry would have landed in Berhe, because it was not done. And it was not done in part because the trial court framed the remand hearing as a search for implicit bias.
Alternatively, such an inquiry could seek not to establish causal relationships (at any threshold that might be posited) but to establish courts as a civil and safe environment for persons for whom courts historically have been hostile places. In neither case, however, will implicit bias premises distinguish between permissible and impermissible conduct. This Article concludes that the utility of implicit bias rhetoric in cases such as Berhe is not to provide answers. The utility is to give judges something to point to as a way of sidestepping traditional causal analysis, and thereby free judges to pursue justice as they see it. Whether that turns out to be a good thing depends on what courts do with that freedom.
Recommended Citation
Dave McGowan,
Juror Number Six: Implicit Bias and the Future of Jury Trials,
61
San Diego L. Rev.
497
(2024).
Available at:
https://digital.sandiego.edu/sdlr/vol61/iss3/2