For all but petty offenses, the Sixth Amendment guarantees that, “the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” In a legal context, an impartial jury is considered one that is a fair cross section of the community and is free from bias and prejudice. The process of voir dire, in which the judge and attorneys ask potential jurors questions, is used in order to form an impartial jury by removing those with explicit disqualifying biases and prejudices. Multiple cases have upheld the removal of biased jurors that may unfairly harm the defendant. However, this process only eliminates those who are explicitly biased and willing to openly express such bias, which is increasingly condemned and has given way to more subtle forms of racism. Moreover, the right to an impartial jury rests on the false assumption that people can be unbiased; even those who are not explicitly biased can show many implicit biases that may influence their decision-making.
There are many attributes towards which people may display implicit biases which may influence legal outcomes, including attractiveness, body weight, socioeconomic status, and race. Of primary interest here is the role that implicit racial bias may play in sentencing. Blacks are imprisoned at five times the rate of whites (and up to ten times more frequently in some states) and make up the majority of innocent defendants who are wrongfully convicted. Although there are numerous reasons for these racial disparities, jury bias (both explicit and implicit) is an important factor to consider, and raises the difficult question of whether or not implicit bias tests may be useful in jury selection or prosecutor and judge hiring/training.
Numerous studies have documented the influence of implicit and explicit racial biases in the courtroom, and both the race of the juror and defendant have been found to have an impact on decision-making. For example, in large review, Sommers and Ellsworth summarized numerous real cases and mock jury studies that documented that whites deliver harsher punishments to black defendants compared to same-race defendants. Other studies have suggested that this effect differs depending on the nature of the crime, or have failed to find support for this bias. Still other meta-analyses have found evidence for racial bias in juror-decision making, but this may be moderated by other factors including whether the guilty decision was continuous or dichotomous, and whether or not jury instructions were provided. Mitchell et al. additionally found evidence for strong biases in black jurors against white defendants, suggesting that racial mismatch, not just white-to-black bias, is at play in jury decisions.
Sommers and Ellsworth argue that this has produced a conflict between “two seemingly irreconcilable observations regarding Whites' racial attitudes and the pervasiveness of discrimination” in that, while explicit racist attitudes have declined, racial minorities continue to face discrimination, perhaps due to racism that individuals are more reluctant to express explicitly or implicit biases that individuals may not be aware of. So, given that implicit biases are rampant and likely continue to impact jury decisions, what can we do in order to ensure that defendants have as close to an impartial jury as possible?
