This Article investigates whether one of the most intractable problems in trial procedure can be ameliorated through the use of one of the most striking discoveries in recent social science. The intractable problem is selecting a fair jury. Current doctrine fails to address the fact that jurors harbor not only explicit, or conscious, bias, but also implicit, or unconscious, bias. The discovery is the Implicit Association Test (“IAT”), an online test that aims to reveal implicit bias.
This Article conducts the first comparison of proposals that the IAT be used to address jury bias. They fall into two groups. The first group would use the IAT to “screen” potential jurors for implicit bias; the second group would use the IAT to educate jurors about implicit bias. These proposals merit deeper consideration. Implicit bias is pervasive, and affects crucial juror functions: evaluation of evidence, recall of facts, and judgment of guilt. Juries are generally told nothing about implicit bias. The judiciary has expressed concern about implicit juror bias, and sought help from the academy in addressing the problem.
This Article provides what these two groups of proposals lack: critique and context. It shows that using the IAT to screen jurors is misguided. However, the Article contends that the educational project has merit because implicit bias can be countered through knowledge of its existence and motivation to address it. To refine the project, this Article identifies two vital issues that distinguish the proposals: when jurors should learn about implicit bias, and how they should learn about it.
On the issue of when, this Article argues that the education should begin while the jurors are still being oriented. Orientation is not only universal, but, as research into “priming” and “framing” suggests, a crucial period for the forming of first impressions. On the issue of how, this Article argues that those proposals that would include the jurors taking an IAT are superior to those that would simply instruct jurors on what the IAT shows. In an area fraught with denial, mere instruction would likely be dismissed as irrelevant. This Article uses pedagogical theory to show that experiential learning about bias is more likely to be effective.
Finally, this Article brings when and how together, proposing a model that would include the use of the IAT as an experiential learning tool during orientation. This model would harness the civic energy of jurors to an educational purpose, rather than letting it morph into boredom; by putting jurors in an active mindset, it would enhance their satisfaction with the process, and their ability to perform optimally. As for potential jurors who are never selected, their participation would honor the long-standing educational function of jury service.