"Implicit Bias in the Courtroom"

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"Implicit Bias in the Courtroom" 
UCLA Law Review, Vol. 59, No. 5, 2012
UCLA School of Law Research Paper

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JERRY KANG, University of California, Los Angeles (UCLA) - School of Law
MARK W. BENNETT, affiliation not provided to SSRN
DEVON W. CARBADO, University of California, Los Angeles (UCLA) - School of Law
PAMELA CASEY, affiliation not provided to SSRN
NILANJANA DASGUPTA, University of Massachusetts at Amherst - Psychology
DAVID L. FAIGMAN, UC Hastings College of the Law
RACHEL D. GODSIL, Seton Hall University - School of Law
ANTHONY G. GREENWALD, University of Washington - Graduate Department of Psychology
JUSTIN D. LEVINSON, University of Hawaii at Manoa - William S. Richardson School of Law
JENNIFER MNOOKIN, University of California, Los Angeles (UCLA) - School of Law

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with “behavioral realism.” The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.