Racism as a conscious belief can limit our understanding of that bias. The conscious belief in racial inferiority with acts in furtherance of those beliefs, via discrimination or worse, may be not as frequent today. Most of us would never treat anyone differently due to race, and in the perceived absence of conscious bigotry from others, we’re tempted to believe that for most people in most circumstances, racism is a previous generation’s problem, not ours.
Not so. While racism can be expressed in conscious beliefs and actions, but it also can be expressed through unconscious bias. For example, millions have taken the Implicit Association Test developed by researchers at Harvard University and the University of Washington and most have been surprised at the extent to which the test can reveal implicit social cognition – thoughts and feelings outside of conscious awareness and control. The test documents a common form of racism that extends beyond the beliefs and attitudes that we’re aware of. This research has far ranging implications for a lawyer during voir dire (where a court is really concerned with having effective voir dire and not just court conducted “get it over” voir dire). This test recognizes that people don’t always say what’s on their minds. One reason is that they are unwilling. For example, someone might report smoking a pack of cigarettes per day because they are embarrassed to admit that they smoke two. Another reason is that they are unable. A smoker might truly believe that she smokes a pack a day, or might not keep track at all. The difference between being unwilling and unable is the difference between purposely hiding something from someone and unknowingly hiding something from yourself. The Implicit Association Test (IAT) measures attitudes and beliefs that people may be unwilling or unable to report. The IAT may be especially interesting if it shows that you have an implicit attitude that you did not know about. For example, you may believe that women and men should be equally associated with science, but your automatic associations could show that you (like many others) associate men with science more than you associate women with science.
Psychologists who study this racism related to unconscious bias refer to the term as “aversive racism.” “Aversive racism” is thought to be a phenomenon in which people believe they harbor no prejudice toward minorities, when in fact they have a subconscious bias. Russ Espinoza, “The Impact of Ethnicity, Immigration Status, and Socioeconomic Status on Juror Decision Making,” 13 Journal of Ethnicity in Criminal Justice 3 (2015)http://www.tandfonline.com/doi/abs/10.1080/15377938.2014.984044#preview In an article in The Orange County Register, Cal State Fullerton psychologist Russ Espinoza found that mock jurors are motivated to find reasons other than race in order to justify greater punitiveness toward minority defendants. “When jurors can find other reasons besides race to place blame, such as low socioeconomic status, they will tend to be more punitive toward minority defendants and feel that they are not being prejudicial,” he said in explaining the theory. Liliana Mota, “CSUF researcher uncovers subconscious bias among jurors” The Orange County Register, http://www.ocregister.com/articles/espinoza-669017-jurors-penalty.html. Compared to a group of students in their 20s, the older jury pool was harsher in its sentencing, he said. “We found that the mock jurors with the average of age 38 tended to throw the book at minorities,” he said. Id. Moreover, regardless of the belief of Justice Scalia about the fairness of the death penalty, the study found that African Americans and Latinos with a low socioeconomic status and weak mitigating factors were more likely to receive the death penalty.
So as trial lawyers, maybe we should watch potential jurors either who avoid eye looking at you or your client, or instead simply burns holes by staring at you or client since that would seem to indicate they are showing aversion toward you or your client. It might be easier to ask about experience, rather than an attitude. Maybe ask the potential juror how often she/he has interacted with members of a minority group, for example, might be a window into aversive behavior.