July 31, 2018 Articles

A Guide to Implicit Bias and Explicit Views of Lawyers' Race and Gender

Read this original study to test mock jurors' views of lawyers

By Cynthia Cohen

Explicit Bias and Unconscious Bias

Voir dire sets the stage for trial. Some people believe that jurors make up their minds by the end of opening statements. Others believe that the case is over at jury selection. My observation is that how the evidence is presented and the jurors’ bias from life experience and their impressions of lawyers and parties determine deliberations. Explicit bias is evidenced when people speak about stereotypes. Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny challenge explicit bias in jury selection. Unconscious bias occurs without forethought. Understanding why some people stick to their own stereotypes for impression management helps in mitigating unconscious bias.

This article discusses the psychological underpinnings of both explicit and implicit (or unconscious) bias and stereotyping, as well as empirical findings from an original study to test mock jurors’ views of lawyers. I examined (1) bias in mock jurors’ preferences for gender and race if they were to hire an attorney and (2) perceptions of lawyers’ skills to see whether it affects verdicts. Four hundred sixty mock jurors were randomly assigned to eight identical surveys varying the gender and race of the attorneys described in the scenario (i.e., Asian females, Asian males, African American females, African American males, Caucasian females, Caucasian males, Hispanic females, Hispanic males). Mock jurors rated attitudes about the legal system and their lawyer preference before reading a hypothetical scenario. Conclusions regarding stereotypes and why some people go against their own in-group explain choices they make for their lawyer preferences.

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