Juror Number Six: Implicit Bias and the Future of Jury Trials
Abstract
Implicit bias concepts are increasingly influential in the law. Washington and California have adopted jury selection rules that use implicit bias ideas to reduce the showing needed to reject a peremptory challenge. Under Washington’s rule, a prima facie showing of bias may be made by showing that an objective observer, who is deemed to know that implicit (unconscious) bias has resulted in the unfair exclusion of jurors, could view race or ethnicity as a factor in the challenge. Once such a showing is made, the challenge is denied.
In two important cases, the Washington Supreme Court has applied implicit bias concepts from the peremptory challenge context to post-verdict challenges that argued that a verdict was tainted by bias. Under the rule in these cases, if a prima facie showing of bias is made the burden shifts to the prevailing party to prove that the verdict was not tainted by bias. The premises Washington has constructed from implicit bias reasoning are so strong that the burden of proof will likely be decisive in such cases. There is no non-arbitrary way to use such premises to distinguish cases in which conduct is problematic from those in which it is not.
The first case, State v. Berhe, led to an extraordinary hearing in which jurors were sworn and examined about their conduct during deliberations. This article uses the transcript of that hearing to assess whether implicit bias concepts will prove useful in such post-verdict challenges. It argues that at least IAT-style association data will not prove useful in assessing post-verdict challenges because such challenges pose a problem of attribution, not association. The question is whether to attribute a juror’s conduct to their disposition or to other factors, such as the trial record. Implicit bias reasoning may skew such analysis by encouraging judges to favor dispositional explanations over contextual explanations.