Numerous studies have shown that everyone, whether they think so or not, harbors implicit biases. When such biases enter the criminal justice system it can compromise the outcomes of court cases putting people’s lives on the line, sometimes literally. While the criminal justice system promises a fair and impartial trial for all, whether or not that promise is being met is questionable. In a system where all checks against implicit biases involve asking people whether or not they have them, there is much room for biases to creep into courts unchecked.
Stanley P. Williams, the deputy district attorney in Marin County California who has served the public through the Department of Justice and district attorney’s offices, has focused his latest research on how implicit bias impacts criminal cases and what can be done to address the issues. In his article published in the Indiana Journal of Law and Social Equality titled “Double-Blind Justice: A Scientific Solution to Criminal Bias in the Courtroom,” he discusses how bias affects judges and jurors and a proposed solution to keep biases out of the courts. He argues that courts should employ a double-blind trial system for juries and judges so that the identities of defendants are concealed and decisions can be made based on the evidence presented alone.
In your article, you say that the current justice system allows biases to enter the courtroom virtually unchecked. Why is that the case?
SW: Our current method for screening potential bias is limited to voir dire, a French term which roughly means “to speak the truth.” Here, the truth relies on the accuracy of two things: a question and an answer. A question regarding whether a juror knows the defense attorney or prosecutor yields a simple truth: yes or no. Alternatively, a question regarding whether one harbors biases for or against a certain class — such as race, religion, gender, or age — is more difficult to answer. First, it may not be asked. Second, this type of questioning is vulnerable to the many flaws attributed to polls in general. One flaw includes intentional misreporting due to a social desirability bias, which is the tendency to answer questions in a socially acceptable manner. Another flaw involves the option of a juror providing no response. Some trial attorneys know this as the blank stare, an awkward feeling shunned by all. Finally, voir dire is incapable of filtering implicit bias because, by definition, they are attitudes or stereotypes that one unwittingly holds, whether or not one endorses those beliefs.
Put simply, our system relies on a method of voir dire, rather than doveryai, no proveryai (trust, but verify).
SW: The Implicit Association Test (IAT) measures how quickly someone pairs a description with another entity. The amount of time it takes to pair a word with an adjective indicates a positive or negative mental association with the word. For instance, it may measure how long it takes a person to judge whether a white or black person is carrying a harmless object or a weapon. Alternatively, it may measure the association between pleasant words and flowers or insects. Users may find many of these tests online for free.
To my knowledge, no actual jury has taken an IAT. Yet, we can infer bias exists because of consistent findings of bias in studies involving mock jurors. For instance, a study headed by Justin D. Levinson from the University of Hawaii found mock jurors held strong implicit associations between black males and guilty verdicts. Moreover, a meta-analysis led by Tara L. Mitchell found that a defendant’s race influenced the verdict of mock jurors.
How have judges been shown to have implicit biases? Do judges perceptions of their impartiality generally match reality?
SW: A study including over one-hundred actual judges—both appointed and elected judges—from three different jurisdictions revealed judges do harbor implicit racial biases. When asked, 97 percent of judges placed themselves in an above average category when ranking their ability to “avoid racial prejudice in decision-making” relative to other judges in their conference. Of course, those estimates are impossible, since 97 percent of one group, by definition, cannot fit in the top 50 percent.
Adam Benforado, a law professor at Drexel University, proposes doing virtual trials with avatars to prevent bias. Can you speak on this a bit? What are the pros and cons as compared to other proposed solutions?
SW: Mr. Benforado suggests we eliminate live trials and replace them with virtual trials consisting of avatars for all actors, including the judge, attorneys, witnesses, jurors, and defendants. Also, the avatars and courtrooms would be completely standardized to eliminate any variations including tone of voice, height, lighting, and other variables. It conjures up an image of 1984 blended with the movie Avatar. I applaud his vision, but I doubt there’s any practical execution. His idea runs afoul of the Constitution and more specifically, the Confrontation Clause found within the Sixth Amendment. The defendant has a right to a face-to-face encounter, except in rare situations involving child abuse victims for example. An avatar system denies a defendant that right in every case. Additionally, Mr. Benforado proposes broadcasting criminal trials to “supplement the spotty error- and bias-checking done by attorneys and judges with crowdsourced oversight.” This impermissibly delegates the responsibilities of judges and attorneys to anyone, regardless of their background. The avatar system has obvious benefits: it eliminates nearly all biases, both implicit and explicit. The fatal drawback is that the system is unconstitutional.
Alternatively, other scholars have proposed constitutional solutions that are impractical for different reasons. Proposals for judges include training sessions on bias, exposure to counter-typical examples of certain groups, auditing, and procedural changes such as adding another judge or changing the standard of review. Proposals for jurors include screening via the Implicit Association Test, increasing juror diversity, adding jury instructions, and finally frank discussions about bias during jury trials. Many of these solutions are offered by Jerry Kang and his colleagues who have done amazing work by pioneering this field of addressing bias in courtrooms. Yet, while they do not encounter the upfront practical hurdles of Mr. Benforado’s proposal, they do lack the practical effects of his solution. Let’s take increasing juror diversity, for example. Kang explains jury diversity may cancel out the biases of other jurors by way of increasing the pool of biases. While juror diversity may be more effective in reaching a fair decision, this solution seeks to increase biases rather than mitigating or eliminating them. Accordingly, it is fraught with unforeseen consequences.
Why do you believe double-blind trials will help alleviate biases in the courtroom? How can this be implemented?
SW: Bias has an insidious effect on trial proceedings because of the sheer amount of biases that exist, in addition to their latency. Yet, if we could somehow blind jurors and judges to the defendant, without blinding them to the evidence, then we have closed one major floodgate for bias. The Double-Blind System does just that. A blind person cannot be biased by beauty or race, not because they are incapable of being biased, but simply because no visual cues exist to trigger those biases. The Double-Blind System goes beyond conventional methods of tackling race, for example, and instead serves as a broad instrument that negates any potential biases against appearances, gender, race, accents, affiliations, and other social markers.
Implementation begs the question of pragmatism and politics. The system is borne out of pragmatism because it incorporates equipment already present in many courtrooms. Two-way closed-circuit televisions are currently being used in courtrooms, including situations involving sexual abuse of minors. This system would use that technology, so relatively little must be done to implement this system where the technology already exists in courtrooms. For instance, the key case involving closed circuit technology dates back to about 1990. These courtrooms can serve as models for others that have not yet implemented this technology. Politically, we have to decide as a nation what value we place on impartial criminal proceedings. Will we bear the costs of installing and maintaining such equipment, and if so, will this cost be shouldered by taxpayers as a whole or merely those who are processed by the criminal justice system? Will we demand that our legislature introduce bills that ensure a fair and impartial vote on guilt of fellow Americans, just as we demand a fair and impartial vote for our elected officials?
In your article, you say “the Double-Blind System should be used at the outset to blind jurors only. Why is that and how do you propose such a system be implemented over time?
SW: Judges are afforded wide latitude over what happens in the courtroom, mainly because their role envisions a neutral and detached magistrate that ensures a fair trial for both parties. Normally, a judge will not determine the guilt or innocence of a defendant, except when a person opts for a bench trial. Ultimately, a defendant’s right to a fair and impartial trial must never be compromised. To effectuate this obligation, judges should not be blinded during the rollout of the Double-Blind System to ensure that the system is working properly. Just as a judge may control the proceedings, a judge should be able to control video equipment intrinsic to the proceeding. This should not be absolute power, however, because judges, like all humans, are susceptible to implicit biases that may undermine the fairness of a trial. Once the Double-Blind System performs consistently without hiccups, concerns regarding human error, namely implicit bias, should outweigh concerns for technological errors, such as poor transmission or audio glitches. It is important to note that while judges do not decide guilt or innocence in a jury trial, they do decide what sentence a defendant receives. The disparities in sentencing, regarding gender and ethnicity alone, abound. In general, judges serve black defendants with longer prison sentences than white males in similar circumstances. Likewise, judges hand out longer prison sentences for male defendants than female defendants, despite accounting for variables such as the charged offense and criminal history. Consequently, we must fix the issue of fairly deciding guilt, without compromising the quality of the courtroom proceedings before we tackle downstream issues of fair sentencing.