Implicit Bias

A recent article in the Texas Bar Journal, the official publication of the State Bar of Texas, raised the issue of implicit bias. The article relies upon a definition of implicit bias used by the United States Supreme Court: “Implicit bias refers to the attitudes or stereotypes that affect our understanding, actions and decisions in an unconscious manner”.

The author of the article, attorney Brian Sanford, refers readers to a test developed to determine if someone shows signs of implicit bias. The test is the Implicit Association Test (IAT). The test can be taken online (implicit.havard.edu). According to the author, a majority of people taking the test show evidence of implicit bias.

I was not surprised to learn that implicit bias existed, I think we all know that, but I was surprised at how prevalent and strong it is.

Here are the results:

• 24%: Strong automatic preference for European-American compared to African-American
• 27%: Moderate automatic preference for European-American compared to African-American
• 17%: Slight automatic preference for European-American compared to African American
• 18%: Little to no automatic preference for European-American compared to African-American
• 7%: Slight automatic preference for African-American compared to European-American
• 5%: Moderate automatic preference to African-American compared to European-American
• 2%: Strong automatic preference to African-American compared to European-American

* This distribution summarizes 3,314,227 IAT scores of race task completed between December 2002 and December 2015.

As a trial lawyer who represents many non-whites, the question immediately becomes one of what to do with this information.

Do you tackle the problem head-on in jury selection, or do you say nothing and hope for the best? If you suggest to a jury panel that implicit bias exists and that there is a scientific certainty that some members of the panel harbor bias whether or not they know it, will jurors be offended or, armed with this knowledge, will they search their souls and fight against it?

I should add here that implicit bias applies to more than race. It also applies to sex, religion, political beliefs and, just this year, a study was published that proves there is a strong bias against those who receive government benefits.

Although most lawyers choose to say nothing because they fear the possible backlash, that may very well be a serious mistake.