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Implicit-Bias Instructions in Criminal Cases

Sheena Ann Foye and James R Wyrsch

Implicit-Bias Instructions in Criminal Cases
Chris Ryan via Getty Images

In August 2016, the ABA House of Delegates passed Resolution 116 during the ABA Annual Meeting. The second part of the resolution proposed adding a provision to Jury Principle 6 that will require judges to educate jurors on the impact that implicit bias can have on the deliberation process. Furthermore, the ABA’s Commission on the American Jury, along with the Diversity and Inclusion 360 Commission, proposed an implicit-bias instruction. In its report to the delegates, the commission stated, “Courts must find practical ways of eliminating implicit bias in jurors. Due to the limited opportunities to educate jurors in the courtroom setting, the importance of a well-crafted specialized jury instruction may be the only available practical option of making jurors aware of implicit bias.” The ABA also created an “Achieving an Impartial Jury (AIJ)” project that focuses on implicit bias in the context of the jury system and offers tools to address its impact. The AIJ project put together a helpful toolbox  that we encourage all practitioners to read.

The authors would recommend that practitioners review these helpful resources on juror implicit bias and implicit bias instructions:

It is suggested that practitioners engaged in the litigation of federal and state criminal matters use the above provided resources and propose their own implicit-bias instructions if any such instructions have not been adopted.