ABA Annual CLE Recap: We’re Only Human: How Implicit Bias Affects Judges Who Believe They Are Bias-Free

We’re Only Human: How Implicit Bias Affects Judges Who Believe They Are Bias-Free

Thursday, August 7, 2014

Judge Bernice Donald led this session on implicit biases and how to overcome them. Designed for judges, the session covered extensive research on the existence of implicit biases -- whether against racial minorities, women, or other groups -- and their pervasive effect on judges, jurors, and society at large. Judge Donald ran through a slideshow prepared by Judge Mark Bennett (who had planned to lead the session but could not make it), and she added several anecdotes from her own time as the first African-American, female judge in Tennessee.

The research implicates just about everyone, regardless of race or gender. To reveal the crowd’s own biases, Judge Donald started with a riddle that was familiar to many: A father and son were in a horrible car crash. The father died at the scene. Rescuers rushed the son to a hospital, and just as he entered surgery, the doctor stopped the procedure, explaining, “I cannot operate on him -- that boy is my son!” How could this be?

In studies, respondents often started by saying the doctor must be the son’s stepfather, or perhaps a gay, second dad. Correct answer: the doctor was the boy’s mother. When people hear “doctor” or “surgeon,” they usually don’t think of a woman. (For more on this riddle, see BU Today.) Judge Donald shared a similar experience. She once introduced herself to a person at an event who wanted to meet “Judge Bernice Donald.” The person was baffled. “You’re Bernice Donald? You don’t look the way I expected you to.”

One major goal of the session was to encourage and inform judges on preventing implicit biases from infecting their courtrooms. Judge Donald shared Judge Bennett’s jury instructions that he uses in all criminal and civil trials to counter implicit biases. He tells the jurors that we all have “hidden feelings, perceptions, fears and stereotypes in our subconscious,” and these impact our perceptions. Simply by considering these biases, we can rid them of their power.

A judge from Iowa and other attendees shared their own instructions to alert jurors to their potential, unknown prejudices. Judge Donald noted that jurors are more likely to overcome their biases when they are part of a diverse group, and the same holds true when hiring clerks or other employees.

The session was collaborative and fostered effective dialogue. While much room for improvement remains in combatting implicit biases, Judge Donald and the other participants were generally optimistic. Simply by spreading the word on implicit biases, we can prevent them from distorting the judicial process.

By: James McClure

Lt. Governor of Public Interest