November 01, 2015

Who, Me? Am I Guilty of Implicit Bias?

By Judge Dana Leigh Marks

As I observe his testimony, I notice the witness is not looking me in the eye, making me begin to suspect that I am not being told the truth. I note my concern while the testimony continues. As his story comes out in a confusing jumble, with bits and pieces that are not firmly grounded in a chronological timeline, I am again plagued by doubts about his veracity.

Sitting in front of me is an extremely muscular, heavily tattooed man whose mere physical presence seems to presage danger. I am horrified by the life he has led and the violent stories he recounts. I struggle to remain focused on the present evidence and its relevance, but I am aware that I feel something is just “off.” After a few more minutes, I catch myself and remember that it is not culturally appropriate in many cultures to look an authority figure in the eye. Okay, discount that factor. Then I remember that rigid timelines and linear storytelling are not necessarily common or expected in all cultures. Okay, another factor must be discounted or minimized.

I am continuing to listen as I recall the devastating impact stress from trauma has on memory. During a traumatic incident, the brain functions differently, often causing a shocking memory to be inaccessible or an event to be stored in the brain in a random, illogical manner making it incapable of orderly retrieval. Yet another factor which troubled me now must be thrown out or re-examined.

Or maybe today’s witness is a shy young woman, one who tells her stories of religious observance or political activism in an effort to persuade me that her activities would cause her harm if she were to return to her homeland. But I find it hard to believe that someone who supposedly found those principles to be so central to her life as to run the risk of persecution would have such difficulty discussing doctrine—until I remember that I am viewing her stories through a completely different lens of circumstance and experience, that is, from the vantage point of my own privileged status as an American accustomed to freedom of religious and political expression. Now how do I assess credibility? How would a different judge have reacted if his or her personal history included being raised outside the United States? Does it matter that my personal values include a rather laissez faire interpretation of the religious doctrine of my childhood, but that I find issues of political theory and social justice sacrosanct?

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