Challenging implicit racial bias in court

| Feb 17, 2020 | Criminal Defense

When some people face Maryland criminal charges, they may have to deal with the unconscious weight of racial bias and stereotypes from juries and even judges. Research shows that black defendants continue to receive higher prison sentences and are more likely to be held in pre-trial detention. According to many scholars, these results could be explained by implicit bias, a form of racial prejudice that relies on the unconscious perpetuation of social stereotypes rather than conscious choices to discriminate against members of a particular race. One of the key characteristics of implicit racial bias is that it remains unspoken and unexamined.

Therefore, some criminal defense lawyers and scholars have proposed that implicit bias can be challenged in the courtroom by drawing specific attention to the potential racial dynamics involved in a case. Implicit biases may be less likely to influence decision-making when they are made explicit. For example, a defense attorney could ask a judge to provide specific jury instructions in which jurors are reminded to consider only the facts and evidence in the case, rather than stereotypes, biases or personal like or dislike for the parties. Because implicit bias relies on stereotypes, lawyers may also benefit from highlighting the individual stories of their clients, distinguishing them as unique individuals with concerns, problems and close relationships.

Of course, racial bias can pose a threat not only in jury deliberations but also in many other aspects of the criminal justice system. Defense lawyers may be able to challenge police racial profiling leading to a stop and search or question the reliability of a cross-racial witness identification.

Racial bias may continue to play a role in conviction and sentencing for many people facing criminal charges. A criminal defense attorney may work with clients to protect their rights and aim to prevent a conviction.