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Rejecting Prejudice But Still Carrying Implicit Bias In Criminal Cases

On Behalf of | Apr 7, 2024 | Firm News

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I litigated a police shooting case in a northern Wisconsin county. My client was African American, the officer involved was Caucasian. I believed there was a strong racial quality involved in the case. I was also aware that most of the potential jurors were going to be Caucasian with little experience or contact with African Americans. So I requested the court to give an implicit bias jury instruction.

Jury instructions are the law to decide a case read by a judge to the jury after they have heard the evidence presented by the attorneys. Implicit bias is “an automatic and unconscious process, (and) people who engage in this unthinking discrimination are not aware of the fact that they do it.” Implicit biases can manifest even in people who, at the conscious level, reject prejudice and stereotyping. Greenwald, A. G., Mcghee, D. E., & Schwartz, J. L. K. (1998). Measuring Individual Differences in Implicit Cognition: The Implicit Association Test. Journal of Personality and Social Psychology, 74(6), 1464–80 (p. 1474),—The-IAT—Greenwald-et-al.pdf; 4

On the issue of implicit bias in the workplace, renowned University of Washington Psychologist Anthony G. Greenwald, Ph.D. has opined that, “There is now little doubt that implicit bias, in the form of unconscious attitudes and stereotypes, is a cause of discrimination.” See, Implicit Bias: How Should Psychological Science Inform the Law?, Implicit bias also exists on jury panels, so in 2016, the American Bar Association adopted “Principles for Juries and Jury Trials,” chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/ which recognizes the implications of implicit bias in the deliberations of juries and recommended the following remedial practices: The court should:

  1. Instruct the jury on implicit bias and how such bias may impact the decision-making process without the juror being aware of it; and
  2. Encourage the jurors to resist making decisions based on personal likes or dislikes or gut feelings that may be based on attitudes toward race, national origin, gender, age, religious belief, income, occupation, disability, marital status, sexual orientation, gender identity, or gender expression.

ABA Principle Six. “The American Bar Association recognizes the legal community’s ongoing need to refine and improve jury practice so that the right to jury trial is preserved and juror participation enhanced.”

Studies cited by Police Chief Magazine, identify several factors that might impact an officer’s decision to shoot—factors that might produce or eliminate differential responses to Black and White subjects. The three important groups of studies support the following statements:

  • Police professionals may use more force (or be quicker to use force) against Blacks because, like many humans, they have a Black-crime implicit bias producing greater perceptions of threat from Blacks than from people of other races.
  • The above phenomenon can be countered by high-quality use-of force training.
  • Police professionals may use less force (or be slower to use force) against Blacks—possibly putting the officers in danger—out of concern for the social and legal consequences associated with shooting racial and ethnic minorities.

The U.S. Department of Justice, Office of Community Oriented Policing Programs, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/ has explained:

In the context of criminal justice and community safety, implicit bias has been shown to have significant influence in the outcomes of interactions between police and citizens. While conscious, “traditional” racism has declined significantly in recent decades, “research suggests that implicit attitudes may be better at predicting and/or influencing behavior than self-reported explicit attitudes.”

Given these sources, I therefore believed my jury instruction request would easily be accepted. How wrong I was! You would have thought I asked to have a satanic mass said during trial. Both the court and the prosecution stiffly and in unison answered, “WE ARE NOT RACIST!”  Needless to say my requested jury instruction from Judge Mark Bennett, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/ was rejected.


The ignorance of that remark saddened me. As pointed out by Police Chief Magazine, many humans – including police officers, judges, lawyers – carry implicit bias with them. Some bias – like favorite flavor of ice cream – is benign. Unfortunately, other forms of implicit bias can be very harmful. If you are curious about your level of implicit bias, you can take the implicit bias test with the Implicit Association Test (IAT),