“Many jurors reasonably believe that in order to be fair, they should be as colorblind (or gender-blind, and so forth.) as possible. In other words, they should try to avoid seeing race, thinking about race, or talking about race whenever possible. But the juror research by Sam Sommers demonstrated that White jurors showed race bias in adjudicating the merits of a battery case (between White and Black people) unless they perceived the case to be somehow racially charged. In other words, until and unless White jurors felt there was a specific threat to racial fairness, they showed racial bias. What this seems to suggest is that whenever a social category bias might be at issue, judges should recommend that jurors feel free to expressly raise and foreground any such biases in their discussions. Instead of thinking it appropriate to repress race, gender, or sexual orientation as irrelevant to understanding the case, judges should make jurors comfortable with the legitimacy of raising such issues. This may produce greater confrontation among the jurors within deliberation, and evidence suggests that it is precisely this greater degree of discussion, and even confrontation, that can potentially decrease the amount of biased decisionmaking. This recommendation — to be conscious of race, gender, and other social categories — may seem to contradict some of the jury instructions that we noted above approvingly. But a command that the race (and other social categories) of the defendant should not influence the juror’s verdict is entirely consistent with instructions to recognize explicitly that race can have just this impact — unless countermeasures are taken. In other words, in order to make jurors behave in a colorblind manner, we can explicitly foreground the possibility of racial bias.”

Source: Hon. Mark W. Bennett, Devon Carbado, Pam Casey, Jerry Kang,  et al. “Implicit Bias In The Courtroom.” 56 UCLA L. Review 1124, 1185. 2012.


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