Recently the American Bar Association posted a very interesting video on implicit bias. Implicit bias (IB) is often described as positive and negative thoughts, feelings and attitudes that guide our reactions, which can be very helpful at times and also hurtful to a particular cause or argument. IB is often related to social and racial biases.
Implicit bias has a very direct and present role in how we interact and perceive others. The ramifications for settlement and trail are immense because the research shows that all of us (judge, jury, opposing counsel, and experts) carry social and racial biases for which we are not aware. Most importantly IB heavily and actively guides our feelings, thoughts, behaviors and decisions. The next time a jury gets out from under you it may just have been some type of implicit bias that changed their views. This is a tricky arena because we are talking about something that lies within us and is not present in the conscious mind. It lies in the unconscious.
The human mind is divided into three sections, the conscious, preconscious, and unconscious. The unconscious section of the mind is like a large warehouse almost completely filled with multitude of active thoughts like applications running in the background of an operating system, never seen but influencing the operations. Ideas stuck in the unconscious mind are referred to as repressed. They stay there in part because experiencing them may be psychologically harmful because they are contrary to how we self-perceive. For example, a person who believes in racial equality most likely has repressed racial biases. The conscious mind, which is like a small storage space with fewer thoughts, also influences our operating system. The difference is that we can see, alter or remove these programs from the system easily. The preconscious mind is like a semi-permeable membrane between the conscious and unconscious minds. This membrane is like a gate keeper allowing certain repressed thoughts from the unconscious to enter the conscious mind.
Implicit biases often reside in our unconscious mind running their programs and influencing our operating systems. This means that potential jurors, who appear as good choices, may be heavily biased towards race, religion, social status, hair color, eye color, gender, you name it. An ongoing research project through Harvard University offers a self-test for implicit bias on line through thurj.org. We suggest you give it a try. The results may shock you; they did me.
Since IB is so present in our decision making processes, it is important that we test for implicit bias as best we can in our focus groups and our jury selections. We can easily ask our focus group attendees to participate in the online self-test to see where they lie with certain implicit biases. This would be very helpful to us but most likely would be highly frustrating and hurtful to our participants. So asking that of attendees is not the best choice.
There are techniques to help control for the implicit bias; Lītigāre has reviewed and participated in implicit bias research and we have developed some specific techniques for this variable. No matter who you use as a jury/trial consultant we suggest you inquire about their knowledge and understanding of implicit bias along with their tools for controlling this variable. We strongly suggest this because the majority of jury decision making is guided by what is going on in the three sections of the human mind.