Deconstruct and Supersctruct: Examining Bias Across the Legal System

Bias – a mental leaning or inclination; partiality; bent to cause to have a bias; influence; prejudice
 The potential for bias reaches across every area of the law through all of these human actors in legal proceedings.
o It may extend to layperson-witnesses – identification of perpetrators or characterization of events may be tainted by
bias
o Attorneys – may favor one client over another, adopt assumptions, or assert peremptory challenges due to biased
stereotypes or expectations
o Jurors – may approach legal proceedings with biases or prejudices that impact their perceptions and their decision-
making in evaluating the participants in those proceedings.
o Judges – may be biased in favor of particular claims, particular litigants, or particular lawyers.

 Unconscious bias – a phenomenon to which all abovementioned are susceptible.

 The study of psychology – includes principles concerning thinking and memory.
 Cognition
o psychological study of thinking
o includes how people form concepts, solve problems, make decisions, and form judgements, as well as the biases that
can create error
o carries particular significance to legal proceedings because of individuals who thereby necessarily form judgements
and make decision.
 Schemas – concepts that organize and interpret information and in which we group similar objects, events, ideas, and people.
 Heuristics – mental shortcuts
 Error in forming judges and making decisions – results from framing (the way an issue is posed or presented), cognitive
illusions, the use and misuse of heirustics, and forms of bias including stereotypin and prejudice, hindsight bias, and
unconscious bias.
 Psychologists documented 2 types of attitude indices: explicit and implicit
o Explicit – those that operate consciously
o Implicit – those that operate unconsciously
 Implicit Association Test (IAT)
o best known psychological study of unconscious bias
o employs latent response or reaction time in the pairings of images of target groups with words representing attributes
by having participants press designated computer keys
 However, there’s a difference between having unconscious biases vs. acting on those biases. People can consciously override
their biases.
 Ways to overcome bias:
o Mental imagery of counter-stereotypes
o Exposure to actual admired exemplars who are counter-stereyotypical
o diversity within the operating environment
o exposure to multicultural viewpoints or diversity education programs
o educating individuals about unconscious bias
o appealing to individuals’ beliefs in equality and fairness.

II. Superstruct: Implicit and Unconscious Bias in the Context of Legal Proceedings
 Psychology and law approach bias in the same perspective.
 The existence of unconscious bias carries a potentially powerful impact in legal proceedings, where the public has put its
trust in the judicial system to achieve a fair result
 If the judicial system is not operating fairly — if instead, unconscious bias is tainting the results of some legal proceedings —
public confidence in our system of justice is misplaced, at least some of the time.
 5 major categories of participants in legal proceedings

o Witnesses
 eyewitness identification is susceptible to memory gap, the desire to be helpful, and subtle cues from police
that can result in misidentification; most common element in wrongful conviction
 eyewitnesses have difficulty individuals of another race

o Juror
 lawyers use voir dire (a preliminary examination of a witness or a juror by a judge or counsel) to select a
fair and impartial jury
 Yet individuals often are reluctant to admit to bias,57 and court decisions have recognized that unconscious
bias has the potential to impact jurors’ perceptions, assessments, and ultimately, their verdicts.
  Unconscious bias may taint legal proceedings despite attorneys’ efforts to empanel jurors who are free of
bias.

o Lawyers
 ethical rules prohibit lawyers from manifesting bias or prejudice
 but potential bias still exists in interactions with clients, pretrial plea negotiations, decisions to exercise
peremptory challenges, and prosecutorial discretion in charging defendants.

o Judges
 Federal judges take an oath to administer justice without respect to persons, and are required to perform all
judicial duties without bias or prejudice
 Yet the judicial oath and ethical obligations do not render judges immune from unconscious bias
 judges harbor the same kinds of implicit biases as others and these biases can influence their judgment
 Thus, unconscious bias has the potential to infect judicial rulings, orders, and decisions

o Court Personnel
 unconscious bias has the potential to implicate fairness concerns, including both perceptions of fairness and
the fairness of actual court outcomes.
 Court clerks who accept court filings may unconsciously respond differently to individuals of different
races, leading them to provide more help to some individuals than to others.

Proposal to counter bias in legal proceedings:

 adoption of a standardized program that integrates three approaches from prominent psychological studies: diversity
education, educating individuals about unconscious bias, and appealing to individuals’ beliefs in equality and fairness.

Justice system - procedures by which we obtain legal remedies