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Panel in San Francisco
I.
Introduction of Panel and ABA Achieving Impartial Jury Project (AIJ)—Jane Mesmer, Director
Criminal Justice Section
II.
Brief Introduction to Concepts of Implicit Bias and Possible Implications for Juries - Sarah
III.
Focus on Voir Dire as a way to uncover (explicit and) implicit biases
Main idea: getting people to speak openly so as to allow attorneys and judges to individuate
their understanding of potential biases/not.
a.
Distribution of brief fact pattern and the California recommended questions (which I
haven’t found yet, but will, or will ask for more help, I’m with limited computer access
here in rural Maine)
b. Fact pattern idea – gender discrimination case that has within it both explicit and
implicit bias; lots of the implicit bias research shows same against women in the
workplace. See MA opinion attached to email (I don’t have access to check if case has
gone any further, will if you like this idea and will write very-much shortened hypo
based on it…)
IV.
Brief explanation of “traditional” voir dire – Morrison’s examples, Fumi’s examples: Each of you
ask a couple of standard questions of a few of the audience members
V.
Introduction to the “new and different voir dire” focused on learning what “debiasing
experiences” folks have had
VI.
Testing the questions—
a.
Small groups at small group tables, thinking 5 @ each
i. at least two tables so each of you can be at one
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ii. hopefully more, if more, will see if other judges present and ask them to be
group leader, or, if not, choose group leaders from each table
b. Each group gets two open-ended questions (see Appendix for possibilities we are
working with), judge/leader asks the questions and group members answer and then
discuss how much they think they learned from each other about attitudes, (explicit
or) implicit.
c.
Each group reports back on (b) and on whether they think the questions were useful
eliciting individual information.
VII.
Hearing from the experts – Fumi and Morrison answer overarching or policy questions posed
by Jane if she is still there and/or Sarah and/or Sarina Cox (the CJS attorney on this project)
a.
Can you see how implicit bias might influence courtroom dynamics and jury
selection?
b. Any observations from questions today that might help you make wise individual
choices?
c.
MORE???????????
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Appendix, current AIJ materials/approach
The Achieving an Impartial Jury (AIJ) Toolbox
Working draft 7/1/2013
The Toolbox is intended to be a user-friendly set of tools and approaches that a court can
use to decrease implicit bias in court proceedings, particularly in jury trials. Based on work of the
Advisory Group for the AIJ project to date, we have decided to focus on outreach to and through
judges, as jurors are “passing through” while judges are there to stay as the source of real power in
the proceedings.
VIII.
Toolbox Elements
Recommended Background Materials Instructions
Voir Dire Recommendations
The Mindful Courtroom Checklist
Poster {possible}
Metrics
Additional Resources
RECOMMENDED BACKGROUND MATERIALS
Kang Primer
Jerry Kang, Nat'l Center for State Courts, NCSC, Implicit Bias, A Primer (2009),
http://wp.jerrykang.net.s110363.gridserver.com/wp-content/uploads/2010/10/kang-Implicit-BiasPrimer-for-courts-09.pdf.
National Center State Courts
Addressing Implicit Bias in the Courts
The excerpt starts with a description of implicit bias phenomenon and lists seven potential strategies
courts might use, http://www.ncsc.org/~/media/Files/PDF/Topics/Gender%20and
%20Racial%20Fairness/IB_Summary_033012.ashx
Strategies to Reduce the Influence of Implicit Bias
This excerpt explains conditions and risk factors that may give rise to implicit bias in court behavior
and decisions and offers specific strategies for individual and organizational change,
http://www.ncsc.org/~/media/Files/PDF/Topics/Gender%20and%20Racial%20
Fairness/IB_Strategies_033012.ashx.
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DRAFT AIJ INSTRUCTION
Our system of justice depends on the willingness and ability of judges like me and
jurors like you1 to make careful and fair decisions. To reach a fair decision, it’s important to
put aside our automatic assumptions, called stereotypes or biases, and only Sometimes to do
this, we all have to look at our thinking 2 to be sure we are not unknowingly reacting to
stereotypes or jumping to conclusions.3 Social scientists and neuroscientists4 studying the way
our brains work have shown that, for all of us, our judgments are influenced by our
backgrounds, experience, and stereotypes we’ve learned. 5 Our first responses are like reflexes,
and just like our knee reflexes, they are quick and automatic.6 Often, without our conscious
awareness, these quick responses may mean that hidden biases influence how we judge
people and even how we remember evidence or make judgments. 7
It is not enough to tell ourselves or the lawyers and judge during jury selection that
we are open-minded.8 To reach a decision in this case it’s important to be more reflective. 9
Social science research has taught us some ways to be more careful in our thinking
about individuals and evidence:10
►Take all the time you need to test what might be reflexive unconscious responses
and to think carefully and consciously about the evidence. 11
►Focus on individual facts, don’t jump to conclusions, which may often be biased by
stereotypes.12
►Try putting yourself in the other person’s place.13
►Ask yourself if your opinion of the parties or witnesses or of the case would be
different if the people presenting looked different, if they belonged to a different
group?14
You must each decide this case individually, but you should do so only after listening to and
considering the opinions of the other jurors, who may have different backgrounds.15 Working
together, a fair result can be achieved.
VOIR DIRE RECOMMENDATIONS
Introduction: The research on implicit bias suggests that a person may not be aware of his or her
own biases. Given this, in addition to the traditional methods of voir dire geared to identify explicit
bias, a goal of the jury selection process should be to discover, with the prospective juror, what life
experiences and attitudes, if any, may implicitly affect how that juror might view the evidence and the
law in the case. This is a two-sided inquiry, on one side to determine which issues might impair a
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juror’s ability to impartially view and listen to the evidence and the law, and on the other to reveal
where such experiences might have been debiasing opportunities for the juror. 16 Consistent with
seeking cues as to explicit bias, the goal is to increase the quality of information about the juror that
the judge and attorneys can use to determine cause and peremptory challenges.
Sample Questions
These questions are based on these assumptions:

The usual questions will be asked re: explicit bias.

Each case and each courtroom will be different.

We are all implicitly biased (and that most of us share the predominant associations, for example,
those that favor white people, and link women to family activities rather than to careers.)

Still, in trying to select an unbiased jury too much focus on how we are all biased seems
counterintuitive.

The court has already created a non-intimidating atmosphere where potential jurors are sufficiently
comfortable to answer openly or to ask to discuss separately.

There is a basic use of open-ended questions.

Consideration is given to verbal and nonverbal cues that bias may be present or that response
influenced by implicit bias.17
The questions here then focus on revealing debiasing situations to which a potential juror
might already have been exposed (knowingly or not). E.g.,
1.
What is your work environment like? (has juror had opportunity for meaningful contact with
persons of other races, etc.)
2.
Where did you grow up? What was it like growing up there?
3.
What experiences have you had with people who are different from you (e.g., from a culture
other than your own)? (same, getting at groups)
4.
Do you have children in school here in xxxx and if so, what kind of school do they attend?
(same)
5.
What experience have you had with persons of different races/ethnicities, with disabilities
(mental or physical)?
6.
What, if anything, do you know/think about implicit or unconscious bias?18
7.
In each case, be mindful of nonverbal as well as verbal responses. Be open to the opportunity
to offer private response if indicated.
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CHECKLIST

The visual images in my courtroom and courthouse are egalitarian. (For example, are they all
pictures of judges who are mostly white?)

Everyone in my courtroom is immediately called Mr./Ms. or appropriate title such as Dr. if known
(i.e. not some folks by first name).

Everyone in my courtroom is greeted politely without assumption as to his or her role or guilt or
innocence. (For example, Judge Bennett’s strategy of shaking hands with all jurors and the
defendant in his court before the case).

Everyone in my courtroom is given similar time for responding (to avoid implicit cues regarding
status).

My staff has participated in training regarding implicit bias.

My staff has been instructed to intervene/report any bias seen (implicit or explicit).

I have in place a consistent process for this reporting to happen confidentially.

I have taken steps to reduce early knowledge of gender, race/ethnicity of parties, e.g., no pictures
in sentencing reports.

I have self-monitoring in place.
POSTER/OTHER
See http://psych.wisc.edu/brauer/campaign.html
METRICS

How many folks we train

How many judges we ask to use some/all of toolbox

Survey of those judges, later
ADDITIONAL RESOURCES
{work in progress}
PPTS

ABA Criminal Justice Section, Building Community Trust: Improving Cross-cultural Communication
in the Criminal Justice System,
http://www.americanbar.org/groups/criminal_justice/pages/buildingcommunity.htmlhttp://www.am
ericanbar.org/groups/criminal_justice/pages/buildingcommunity.htm.

ABA Section of Litigation, Implicit Bias Toolbox & Training Manual, available at
http://www.americanbar.org/groups/litigation/initiatives/task-force-implicit-bias/implicit-biastoolbox.html (with ABA Section of Litigation Task Force on Implicit Bias).

NJC
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READINGS

Mahzarin R. Banaji & Anthony G. Greenwald, Blindspot, Blindspot: Hidden Biases of Good People
(2013)

Malcolm Gladwell, Blink: The Power of Thinking without Thinking (2007).

Daniel Kahneman, Thinking Fast and Slow (2011).

Jerry Kang, Judge Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman,
Rachel Godsil, Anthony G. Greenwald, Justin Levinson & Jennifer Mnookin, Implicit Bias in the
Courtroom, 59 UCLA L. Rev. 1124 (2012).

Victoria C. Plaut, Kecia M. Thomas & Matt J. Goren, Is Multiculturalism or Color Blindness Better
for Minorities?, 20 Psychological Science 446 (2009).

Jeffrey J. Rachlinski, Sheri Lynn Johnson, Andrew J. Wistrich, & Chris Guthrie, Does Unconscious
Racial Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195 (2009).
OTHER

California videos

Section of Litigation video (shorter version of CA)

The Lunch Date

Project Implicit, https://implicit.harvard.edu/implicit/.

ACHIEVING AN IMPARTIAL JURY: EXPERT ADVISORY GROUP
1.
Benny Agosto, Jr., Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, Houston, TX
2.
Dr. David Amodio, Professor of Psychology and Neural Science, NYU
3.
Nicole M. Austin-Hillery, Director and Counsel, Washington Office Brennan Center for Justice,
Washington, DC
4.
Hon. Mark W. Bennett, Judge, U.S. District Court, Northern District of Iowa
5.
Sarina Cox, Staff Attorney, ABA Criminal Justice Section
6.
Dr. Nilanjana Dasgupta, Professor of Psychology, University of Massachusetts, Amherst, MA
7.
Sharon Davies, Professor of Law and Director of the Kirwan Institute for the Study of Race
and Ethnicity, Ohio State University, Columbus, OH
8.
Michael Dean, Attorney, Wayne County Public Defender, Indiana
9.
Dr. Patricia Devine, Professor of Psychology, University of Wisconsin-Madison, Madison, WI
10. Dr. Shari Seidman Diamond, Howard J. Trienens Professor of Law and Professor of
Psychology, Northwestern School of Law, Chicago, IL
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11. Hon. Bernice B. Donald, Judge, United States Court of Appeals for the Sixth Circuit, Memphis,
TN
12. Hon. William Dressel, President, The National Judicial College, Reno, NV
13. Allison Elgart, Legal Director, Equal Justice Society, San Francisco, CA
14. Fred Friedman, Chief Public Defender; Associate Professor University of Minnesota, Duluth,
MN
15. Kim Greely, Attorney, Honolulu, HI
16. Basheera James, Cook County States Attorney, IL
17. Peter Koelling, Director, ABA Justice Center
18. Justin Levinson, Director, Culture and Jury Project; Deputy Director, Institute of Asian-Pacific
Business Law, University of Hawaii Law School, Honolulu, HI
19. Dr. Shawn Marsh, Chief Program Officer, Juvenile Law, National Council of Juvenile and Family
Court Judges, Reno, NV
20. Wayne McKenzie, General Counsel, New York City Department of Probation, New York, NY
21. Seth Miller Executive Director, Innocence Project of Florida, Tallahassee, FL
22. Kelly Mitchell, Executive Director, Minnesota Sentencing Guidelines Commission, St. Paul, MN
23. Rachel Patrick, Director, ABA Coalition on Racial and Ethnic Justice; Center for Racial and
Ethnic Diversity
24. Hon. Costa Pleicones, Justice, South Carolina Supreme Court, Columbia, SC
25. Sarah Redfield, Professor of Law Emerita, University of New Hampshire School of Law, York,
ME
26. Robin Rone, Director, ABA Council for Racial and Ethnic Diversity in the Educational Pipeline;
Commission on Sexual Orientation and Gender Identity
27. Daniel Serrano, Director, ABA Commission on Racial and Ethnic Diversity in the Profession
28. Lauren Stiller Rikleen, President of Rikleen Institute for Strategic Leadership and Executive-inResidence, Boston College Center for Work & Family, Boston, MA
29. Sarah Turberville, Director, ABA Death Penalty Moratorium Implementation Project
30. Artika Tyner, Director of Diversity, Clinical Faculty, University of St. Thomas School of Law,
Minneapolis, MN
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ENDNOTES
Creating an ingroup [e.g., Allport, Gaertner & Dovidio, Tajfel, Greenwald]
1
2
Suggesting idea that may need to be thinking about thinking, not just assume open-mindedness [Kahneman,
Banaji & Greenwald]
3
Acknowledging the significance of learned associations, culture—planting the idea that culture influences
decisions [e.g., Ratliff & Nosek, CJS Building Community Trust]
4
Suggesting social and neuroscience [e.g., Kubota, Banaji & Phelps].
5
Continuing to reference science and research right up front to get away from idea of blame; just how brains
work, true for all of us [e.g., Papillion, all other presenters consulted]. Repeating the themes of removing blame,
groups, and science; we are all human.
6
Reflex terminology [Lieberman, Casey] and the knee reflex reference used as commonly recognized vocabulary
helpful for distinguishing intuitive and deliberative thinking. [e.g., Devine, Amodio et al (2003), Kahneman, Banaji
& Greenwald]; unconscious emphasis [Dasgupta].
7
Continuing theme and focusing on the particular examples of how we judge people and misremember
evidence [e.g. Levinson].
8
Continuing themes, introducing idea that actions may be dissociated from conscious intent and desires. [e.g.,
Devine, Nosek]; discrepancies between one's actions and values. [e.g., Monteith, Dovidio].
9
Continuing idea of no blame (“easier”), calling on our shared expressed ideas of egalitarianism—see Bennett
instruction [e.g., Devine, Dasgupta].
10
Referencing research again. Idea of list: Debiasing works better if given specific method, replacement [e.g.,
Mendoza et al., Dasgupta].
11
Suggesting reduction of cognitive load (take the time) [e.g., Casey].
12
Suggesting individuation [e.g., Devine, Fiske, also Bennett, Kang].
13
Debiasing method [e.g., Devine]
14
[NCSC, Dasgupta; telling juror to pay attention to individual (Sherman) and making instruction relevant to juror
him/herself will cause more focus (Petty in Gawronski)
15
NCSC; also idea that implicit biases may be at play in way jurors treat each other.
16
Adapted from email communication from Richard Gabriel, President of the American Society of Trial
Consultants Foundation to Sarah Redfield and Sarina Cox (June 18, 2013).
17.
18
[E.g., Sommers, Schuller, Advisory Group communications].
Comments from our social science experts: “Personal contact with outgroup members may not always reflect a
person’s degree of implicit bias. But, if these questions can get a person’s view about bias—i.e., do they think it
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is acceptable? Do they support the idea that all Americans have equal rights and are entitled to equal
treatment—this could be informative.” [DA]
“I like the idea of asking these types of open-ended questions assessing the individual’s everyday local
environment and exposure to heterogeneous people who are different from oneself (based on research showing
that positive intergroup contact reduces implicit bias; positive media exposure also reduces implicit bias). But the
specifics of these questions should depend on the fact pattern of the given case. E.g., if the case is about gender
and employment discrimination, then the “culture” question is less important than a question about positive
contact with women in professional roles (as boss, leader). If the case is about race/ethnicity then these existing
questions are likely to fit better. If the case is about sexual orientation or gender identity, these questions will
have to be tweaked again. [BD]
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