August 9, 2022

Volume XII, Number 221

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August 08, 2022

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Aversive Racial Bias in Guilt and Sentencing: Don't Treat Racism as Just a Belief

As of posting time, seven African-American churches have burned down since the racially motivated murders in Emanuel African Methodist Church in Charleston, South Carolina two weeks ago. One of those fires may have been caused by lightning, but there's a concern that others may have been caused by a belief - namely, racism toward African-Americans. But that understanding of racism as a conscious and pointed belief can limit our understanding of the full spectrum of the bias. Those who say that racism is mostly a thing of the past, for example, might just be thinking of those who hold beliefs in racial inferiority and act in support of those beliefs, via discrimination or worse. Most of us honestly believe we would never treat anyone differently due to race, and in the perceived absence of expressed bigotry from others, we're tempted to believe that for most people in most circumstances, racism is a previous generation's problem, not ours. 

Social scientists, however, know better. They understand that racism can't be placed into that neat box of overt animus. Sure, racism can be expressed in conscious beliefs and actions, but it also can be expressed through unconscious bias. For example, millions have taken the Implicit Association Test developed by researchers at Yale University and the University of Washington and most have been surprised at the extent to which the test can reveal subtle associations and preferences. The test documents a common form of racism that extends beyond the beliefs and attitudes that we're aware of. Under the heading of "aversive racism," current research is looking at the kinds of subconscious bias that can be exhibited by those who believe they have no racial bias at all. The Orange County Register features an article focusing on research by Cal State Fullerton psychologist Russ Espinoza who found that mock jurors are motivated to find reasons other than race in order to justify greater punitiveness toward minority defendants. This finding, as well as the broader view of racial bias that it suggests, bears not only on the criminal defendants they study, but also on the biases we anticipate and search for in cases generally.

The Research: Aversive Racial Bias in Guilt and Sentencing

The study that Russ Espinoza discusses in the newspaper article (Espinoza et al., 2015) was conducted in a Santa Ana, California courthouse using 320 Caucasian jurors called for jury duty. After they were dismissed, volunteers read through fictionalized trial transcripts that randomly varied the defendants' ethnicity (Mexican or Canadian), immigration status (documented or undocumented), and socio-economic status (low or high). Not surprisingly, the team found effects for all three, independently and in combination: Low socio-economic undocumented Mexican defendants were more likely to be found guilty, and less likely to receive a recommendation of parole. 

Espinoza explains these results in terms of aversive racism, or the view that, "racial prejudice is subtle and exists even for persons who believe they are egalitarian." That prejudice operated, in Espinoza's view, when jurors relied on the non-race-related factors of socio-economic or immigration status more than on ethnicity. "When jurors can find other reasons besides race to place blame, such as low socioeconomic status," he says, "they will tend to be more punitive toward minority defendants and feel that they are not being prejudicial."

Voir Dire for Racism

In some cases, parties will need to do their best in order to uncover and strike potential jurors who harbor a racial bias. Here are a few clear implications from the implicit bias and aversion research.

Don't Rely on Questions that Are Variations on 'Are You Racist?' 

Our conventional voir dire process is premised on the mistaken belief that potential jurors are generally aware of their biases. You might ask panelists, for instance, whether they harbor any animosities toward particular groups, or whether they would be unable to fairly judge people like your client. That might work to ferret out a few - those who are willing to voice an unpopular opinion, probably as a way of getting out of jury duty. But the rest will say, and genuinely believe, that they would not discriminate. The problem is that there is no reason to trust that self-diagnosis. 

Instead, Look for Aversion

Nonverbal cues coming from the jury box aren't always reliable either. But one cue I would look for is apparent aversion, because aversion is likely to be more reliable than expressed opinions.  When a potential juror either studiously avoids eye contact with a party or attorney, or - on the other end of the spectrum - engages in a sustained glaring kind of eye contact, there is a good chance they are showing aversion toward you or your client. Asking about aversion is a little harder (see above), but might still be possible. Inquiring into experience, for example, can be better than asking about attitudes. Asking how regularly the panelist has interacted with members of a minority group, for example, might be a window into aversive behavior. 

And Aim for Diversity in the Seated Jury

Even with good questioning though, it is probably impossible to eliminate implicit or aversive racial bias from your jury panel. Beyond the proper goal of minimizing it, attorneys also should conduct voir dire with an eye toward the diversity of the resulting panel. Diverse groups are less likely to fall sway to unexamined bias or groupthink, and more likely to engage in complete deliberations. So even if some end up on the panel with dangerous biases, diversity within the panel as a whole will serve as an important check against those biases playing too strong a role during deliberations. 

The bottom line for trial lawyers is not to confuse biases with beliefs. Powerful biases can be unexpressed and even unknown to those who bear them. And that goes not just for racial biases, but for all of them. 

Copyright Holland & Hart LLP 1995-2022.National Law Review, Volume V, Number 184
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About this Author

Ken Broda-Bahm, Ph.D., Holland Hart, Rhetoric lawyer, Legal Persuasion Attorney
Senior Litigation Consultant

Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 16 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants.

303.295.8294
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