Debiasing Juror Decisions Using Intersectionality

 A criminal defendant’s right to trial by an impartial jury is enshrined in the Constitution. However, this right cannot be realized if juror implicit bias remains unchecked. Indeed, jurors’ implicit bias has been shown to affect decisions as fundamental as who is guilty. Recognizing the problem of implicit bias affecting jurors, the American Bar Association created a taskforce aimed at addressing the issue. One of the solutions the taskforce proposed was a model implicit bias jury instruction. In recent years, seventeen jurisdictions have crafted criminal jury instructions that address implicit bias.

This Article contains the first thematic analysis of all known criminal implicit bias jury instructions, examining the various trends, strengths, and shortcomings of these instructions. The Article also reviews two experimental tests of such instructions, which have suggested they are potentially ineffective. It proposes past efforts may have been ineffective because the instructions neither clarify how implicit bias is applicable to the particular defendants, actors, or situations nor emphasize the consequences of making judgments affected by implicit bias.

To date, no instructions have considered intersectionality theory. This Article proposes that an intersectional implicit bias jury instruction can uniquely emphasize connections between implicit bias and structural power and history.

As executive and legislative efforts currently seek to end many programs relating to diversity, equity, and inclusion, it is urgent that bias intervention not be eschewed by the courts. Strategies such as implementing effective interventions in the criminal trial to mitigate juror implicit bias remain crucial.