'Implicit bias'


Photos by Frank Weir

Workshop explores topic, and impact on jury findings

By Frank Weir
Legal News

A workshop on “Understanding Implicit Bias,” presented by Washtenaw County Bar Association President Orlando Simon at the 15th District Court in Ann Arbor, delved into the potential effects on juries.

Simon, an attorney with the University of Michigan Legal Services, said legal scholars and the judiciary have become increasingly concerned about the issue and that efforts are growing to address it.

He noted that bias “is a shortcut our brain makes to interpret the world. Biases come from who we are, where we came from, our natural tendency to choose certain tables to sit at during school, and so forth.”

“The brain tries to process information as quickly as possible for survival, but it has two speeds, fast and slow,” Simon told attendees. “The faster speed evolved as a way to make quick decisions which were vital to survival. The slower speed is more reflective, emotional.”

The problem, outlined in the book, “The Blindspot,” comes when the brain is faced with processing a great deal of information very quickly, explained Simon.

“That’s when unconscious biases get played out,” he said. “The book talks about ‘mind bugs’ with such things as false memory, mistaken identity, false feelings of trust or distrust because of the way we perceive different groups, who we are more comfortable with, who we are familiar with.”

The factors can come into play in the courtroom and in everyday practice, Simon indicated, citing the work of Debra Chopp, of the U-M Law School, in an NYU Review of Law and Social Change article, “Addressing Cultural Bias in the Legal Profession.”

“In the past, implicit bias was kind of an academic concern, kind of ‘wonky,’” Simon noted. “But in the last three years, the ABA is starting to push, saying lawyers need to understand it in order to be effective advocates. We all know what the term means intuitively, but do we really stop and consider its effects?”

Chopp’s article is part of a “vanguard of scholarship” developing on the subject “as people define it and examine it in the delivery of legal services,” Simon said. Chopp looked at the law as well as the training students undergo for the delivery of medical and social work services, concluding that the legal profession “lags far behind” to “mitigate the effects of cultural bias on service delivery.”

Simon noted that perhaps law schools eventually will address these deficits through more clinical training, but he wondered what steps can be taken now.

“The end-point for Chopp,” Simon continued, “is that we have to think about not only how we train lawyers, but perhaps push for changing the Rules of Professional Responsibility and begin training and education about implicit bias in the practice of law.”

Judges and juries, of course, also are prone to display their own inherent biases, Simon stated. He indicated that federal courts in Iowa and Washington state already have begun to incorporate jury instructions that address the issue, imploring individuals to take note of their inherent biases and how they can impact the goal of reaching a fair decision.

“Interventions to address implicit bias in the courtroom have shown that when judges and lawyers take the time to address implicit bias up front, in a way that juries are able to talk about it, jurors are less likely to act on implicit biases,” said Simon.

“Individuals begin to think, ‘Oh that’s right; I have to think about that.’ They move from the unthinking fast brain to the more reflective slow brain response,” Simon, added, noting that it could very well lead to a “more fair and balanced jury decision” as a result.