No Implicit Bias Jury Instruction on Appeal
Implicit bias is not so easy to grasp, but the findings make it painfully clear: Everyone is biased, one way or another. Unfortunately, the solution is also not so easy as it requires individuals to recognize their own biases. To help, some courts, like the ones in Seattle, actually show jurors videos explaining the concept.
And now, a recent appeal challenging a Seattle jury’s (pre-video showing days) decision based upon the jury’s implicit bias is making headlines for the novel theory. Essentially, the petitioners, employees of a Seattle Public Utility, are seeking a retrial due to the court’s denial of the plaintiffs’ expert on implicit bias and for not specifically reminding the jury to rule without considering their own implicit bias. Notably, the jury decision was reached before showing the implicit bias video was standard practice.
Implicit Juror Bias
When it comes to juror bias, when it’s intentional or just unconscionable, the general sense is that it should be grounds for reversal. However, whether or not the law supports that conclusion when the bias is of the implicit kind is an entirely different question particularly given that it will not always support that conclusion when the bias is intentional. Only recently did SCOTUS rule on the matter explaining that it is “imperative to purge racial prejudice from the administration of justice.”
Litigating Through Bias
Detecting juror bias is not as simple as seeing one sobbing away at trial. After voir dire, you can try to ask the court to remove a juror for bias, but it may be difficult to find out about it.
If you suspect bias, it may be worthwhile to propose a jury instruction on the issue of bias, both knowing and implicit. While the jury instruction might inflame someone that holds their bias views near and dear, that inflaming may key in other jurors to report bias statements. Also, for someone with implicit bias, the instruction could save the day by giving them pause to reflect.