Deconstruct and Superstruct: Examining Bias Across the Legal System
20 Pages Posted: 15 May 2013 Last revised: 3 May 2015
Date Written: May 14, 2013
The fourth edition of Webster's New World College Dictionary defines "bias" as "a mental leaning or inclination; partiality; bent[,] . . . to cause to have a bias; influence; prejudice . . . ." In the law, we have tended to think of bias in the straightforward context of claims of employment or housing discrimination. More recently, awareness has increased that eyewitness identifications and identifications from criminal line-ups can be skewed by bias. However, the potential for bias reaches more fundamentally across every participant category within the legal system.
Law is a distinctively human activity, involving a series of human actors -- clients, lawyers, judges, jurors, witnesses, and court personnel. The potential for bias reaches across every area of the law through all of these human actors in legal proceedings. For example, the potential for bias extends to layperson-witnesses, whose identification of perpetrators or characterization of events may be tainted by bias. The potential for bias extends to attorneys, who may favor one client over another, adopt assumptions, or assert peremptory challenges due to biased stereotypes or expectations. The potential for bias extends to jurors, who may approach legal proceedings with biases or prejudices that impact their perceptions and their decision-making in evaluating the participants in those proceedings. And the potential for bias extends to judges, who may be biased in favor of (or against) particular claims, particular litigants, or particular lawyers.
Psychological studies have demonstrated the existence of unconscious bias -- a phenomenon to which all these categories of participants in legal proceedings are susceptible. However, there has been little attempt to discuss the full range of ramifications across the legal system. Instead, discussions of unconscious bias -- indeed, discussions integrating any psychological concept with the law -- typically have taken aim at one specific issue within the law, rather than examining the applicability of the psychological concept across a broader legal context.
In this Article, I deal systemically with unconscious bias in the context of legal proceedings broadly. I examine how psychology informs the phenomenon of unconscious bias, and analyze the potential impact of unconscious bias upon the individuals who participate in legal proceedings, including eyewitnesses, lawyers, jurors, and judges. In doing so, I encourage a broader recognition of the potential role of unconscious bias in legal proceedings, and seek to identify commonalities in recognizing and remedying such bias.
Keywords: unconscious bias, implicit bias, automatic bias, prejudice, psychology and law
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