Techniques and Tips for Raising Implicit Bias in Court: Use of Videos, Jury Instructions, and Voir Dire Selected Materials From Multiple Presenters Lisa Hay Federal Public Defender TABLE OF CONTENTS 1. Materials for Further Self-Study and Education ............................................................. 1 2. Proposed Oregon Unconscious Bias Jury Instruction s...................................................... 3 3. Ninth Circuit Model Instructions..................................................................................... 4. Can Explicit Instructions Reduce Expression of Implicit Bias? ...................................... 5 5. Bar Bulletin, King County Bar Association .................................................................. 35 6. US v. Jacorey Sanders Motion for Attorney Conducted Voir Dire on Implicit Bias and Memorandum in Support ........................................................................................ 37 7. Excerpts of Voir Dire Questions .................................................................................... 55 8. Raising Unconscious Bias in Voir Dire ......................................................................... 70 9. Achieving an Impartial Jury (AIJ) Toolbox ................................................................... 71 10. A New Approach to Voir Dire on Racial Bias, UC Irvine Law Review ...................... 139 Materials for Further Self-Study and Education* Justice Adrienne Nelson Unconscious Bias Video for Jurors A direct link to the video: Understanding the Effects of Unconscious Bias: https://www.youtube.com/watch?v=BA-z4mS_Evg Websites ABA Achieving an Impartial Jury (AIJ) Toolbox https://www.judges.org/wp-content/uploads/Achieving-an- Impartial_Jury_Toolbox.pdf ABA Diversity and Inclusion 360 Commission Toolkit https://www.americanbar.org/content/dam/aba/administrative/diversity- portal/implicitbias_toolkit.pdf National Center for State Courts Helping courts address implicit bias: Resources for education https://www.ncsc.org/ibeducation Love Has No Labels https://lovehasnolabels.com/why-it-matters/ Articles/Primer/Handbook Jerry Kang Implicit Bias: A Primer For Courts, National Center for State Courts (2009) https://www.ncsc.org/__data/assets/pdf_file/0025/14875/kangibprimer.pdf Jerry Kang et al. Implicit Bias in the Courtroom, 59 UCLA L. REV. 1124, 1180 (2012) Southern Poverty Law Center Speak Up: Responding to Everyday Bigotry https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/publ ication/splcspeak_up_handbook_0.pdf Podcasts Page 1 of 169 “Seeing White” podcast series www.sceneonradio.org/seeing-white/ Uncomfortable Conversations with a Black Man Emmanuel Acho podcast https://uncomfortableconvos.com/ Books Oregon Historical Quarterly Special Issue White Supremacy & Resistance Winter 2019, Volume 120, Number 4 by Oregon Historical Society Blink: The Power of Thinking Without Thinking by Malcolm Gladwell Thinking, Fast and Slow by Daniel Kahneman How to be an Antiracist by Ibram X. Kendi Racing to Justice by john a. powell Racism Without Racists by Eduardo Bonilla-Silva Slavery by Another Name by Douglas A. Blackmon The Color of Law by Richard Rothstein The Hidden Brain by Shankar Vedantam The Myth of the Model Minority by Rosalind S. Chou & Joe R. Feagin The New Jim Crow: Mass Incarceration in the Age of Color Blindness by Michelle Alexander They Can’t Kill Us by Wesley Lowery Unaccompanied by Javier Zamora White by Law Ian Haney López When Affirmative Action was White by Ira Katznelson White Fragility by Robin DiAngelo Why I’m No Longer Talking to White People About Race by Reni Eddo- Lodge Page 2 of 169 PROPOSED OREGON UNCONSCIOUS BIAS JURY INSTRUCTION (These instructions are based on the Ninth Circuit Model Instructions, with additions) 1.1 DUTY OF JURY Jurors: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some preliminary instructions. At the end of the trial I will give you more detailed [written] instructions that will control your deliberations. When you deliberate, it will be your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not. You must decide the case solely on the evidence and the law before you. Perform these duties fairly and impartially. Do not allow personal likes or dislikes, sympathy, prejudice, fear, or public opinion to influence you. You should not be influenced by any person’s race, color, religion, national ancestry, or gender, sexual orientation, profession, occupation, celebrity, economic circumstances, or position in life or in the community. Finally, you should make an effort to be aware of your unconscious biases and what effect those may have on your decision-making. You may recall during jury selection, [the attorneys/I] asked the panel if any of you had ever heard the term “unconscious bias.” That term is one used by social scientists to describe the reality that everyone[, including me,]1 has feelings, assumptions, perceptions, fears, and stereotypes, that is, “unconscious biases,” that we may not be aware of. These hidden thoughts can affect what we see and hear, how we remember what we see and hear, how we interact with others, and how we make important decisions. 1 The court can omit reference to “including me.” Page 3 of 169 3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW Members of the jury, now that you have heard all the evidence, it is my duty to instruct you on the law that applies to this case. A copy of these instructions will be available in the jury room for you to consult. It is your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. It is also your duty to apply the law as I give it to you to the facts as you find them, whether you agree with the law or not. You must decide the case solely on the evidence and the law. Do not allow personal likes or dislikes, sympathy, prejudice, fear, or public opinion to influence you. You should not be influenced by any person’s race, color, religion, national ancestry, or gender, sexual orientation, profession, occupation, celebrity, economic circumstances, or position in life or in the community. You will recall that you took an oath promising to do so at the beginning of the case. Finally, you should make an effort to be aware of your unconscious biases and what effect those may have on your decision-making. You may recall at the beginning of this trial during jury selection, [the attorneys/I] asked the panel if any of you had ever heard the term “unconscious bias.” That term is one used by social scientists to describe the reality that everyone[, including me,]2 has feelings, assumptions, perceptions, fears, and stereotypes, that is, “unconscious biases,” that we may not be aware of. These hidden thoughts can affect what we see and hear, how we remember what we see and hear, how we interact with others, and how we make important decisions. Because you are making very important decisions in this case, you should evaluate the evidence carefully and resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluations of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases. You must follow all these instructions and not single out some and ignore others; they are all important. Please do not read into these instructions or into anything I may have said or done any suggestion as to what verdict you should return—that is a matter entirely up to you. 2 The court can omit reference to “including me.” Page 4 of 169 NINTH CIRCUIT MODEL INSTRUCTIONS Perform these duties fairly and impartially. You should not be influenced by any person’s race, color, religious beliefs, national ancestry, sexual orientation, gender identity, gender, or economic circumstances. Also, do not allow yourself to be influenced by personal likes or dislikes, sympathy, prejudice, fear, public opinion, or biases, including unconscious biases. Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention. Like conscious bias, unconscious bias can affect how we evaluate information and make decisions. Ninth Circuit Model Criminal Jury Instructions 1.1 – Duty of Jury You must avoid bias, conscious or unconscious, based on a witness’s race, color, religious beliefs, national ancestry, sexual orientation, gender identity, gender, or economic circumstances in your determination of credibility. Ninth Circuit Model Criminal Jury Instructions 1.7 – Credibility of a Witness It is your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. It is also your duty to apply the law as I give it to you to the facts as you find them, whether you agree with the law or not. You must decide the case solely on the evidence and the law. Do not allow personal likes or dislikes, sympathy, prejudice, fear, or public opinion to influence you. You should also not be influenced by any person’s