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How Aware of you of Your Own Biases? Implications for Trial

By Brian Harris

Understanding Your Own Bias

As the title of this post asks, how aware are you of your own biases? You, as most other people, are probably not. The truth is that all of us have them. No exceptions. So, how do we become aware of our own biases? Luckily, there is a test specifically designed to evaluate just that. It is called Harvard?s Implicit Association Test (www.implicit.harvard.edu). Take it. You will probably learn something about yourself that you probably didn?t really want to know, but, if you are a trial lawyer, or anyone who interacts with people on a regular basis, you probably should.

The fact of the matter is that biases, whether we are aware of them or not, cause us to act, making choices based on our bias as opposed to other and more rational reasons. It may compel some people to hire or not hire a person, to cross to the other side of the street or to strike a potential juror.

The Research on Bias

What does the research say about how bias comes about? One thing that is clear is that it starts very young. Kids as young as 3 years old start to identify themselves with social categories and express preferences (Aboud & Amato, 2001) and negative inter-group attitudes emerge between ages 4 and 5 (Bigler, 1995) -- Think "cooties." What is more disturbing, although not surprising, is that kids from socially disadvantaged groups are found to be more likely to show preference for other groups perceived to be more valued by the mainstream (Dasgupta, 2004).

The point is that biases can be damaging, are developed extremely early and become so well imbedded into our subconscious by adulthood, we are hardly aware of them.

Implications for Trial

So now we know that we all have biases, and that some of us hold biases against our own demographic group. What does it all mean in the jury context? Well, I recently read an interesting article in the September 2008 issue of American Psychologist called "Race and Jury Selection." The authors, Samuel Sommers and Michael Norton discussed how stereotypes are likely to affect judgments made on limited information, under cognitive overload and under time pressure (sounds like jury selection to me). They discussed some of the social implications of attorney tendencies to strike people based on race (Batson notwithstanding).

It got me thinking, though, not just about the social implications related to making decisions based on race, but strategic implications as well. Specifically, do biases lead trial teams to make the wrong striking choices? As an example, Sommers and Norton discussed research that debunked the myth that that black jurors will be unwilling to convict someone within their own racial group. There is simply more to it than that. Context needs to be considered.

The mock jury research I have conducted has revealed, time and time again, that external variables such as race and gender are not predictive of verdict orientation-- attitudes and experiences are. On the other hand, time and time again, I see trial teams make jury selection judgments based in external characteristics, relying on what they can easily see and the "gut" reaction to a person (which typically comes from an unconscious bias or stereotype).

So, take the Implicit Association Test, and the next time you are in jury selection ask yourself this question before you make a strike. "Am I making this strike because this juror is likely biased against my client or because I am likely biased against this juror?"

Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

Melissa M. Gomez, Ph.D
MMG Jury Consulting, LLC
www.mmgjury.com

Full post as published by The Legal Intelligencer Blog on June 25, 2009 (boomark / email).