The Appellate Judge as the Thirteenth Juror: Combating Implicit Bias in Criminal Convictions

Abstract

Research has documented the effect that implicit bias plays in the disproportionately high wrongful-conviction rate for people of color. This Article proposes a novel solution to the problem: empowering individual appellate judges, even over the dissent of two colleagues, to send cases back for retrial when the trial record raises suspicions of a conviction tainted by the operation of implicit racial bias.

Factual review on appeal is unwelcome in most jurisdictions. But the traditional arguments against it, which highlight the importance of deference to the jury’s fact-finding powers, are overly simplistic. Scholars have already demonstrated the relative institutional competency of appellate judges to review jury verdicts gone awry, even when the evidence is legally sufficient. The operation of implicit bias in jury deliberations only enhances the need for this review.

But the review must be more robust than traditional three-judge panels can offer. Judges, too, fall victim to implicit bias, including bias in favor of affirming trial-court results. And the demographics of judges do not reflect those of the populations they serve. So requiring two of three judges to concur in reversing on a factual review is too high a burden to achieve the necessary reduction in bias-influenced wrongful convictions. Each individual judge should have that power. The benefits to the justice system outweigh the costs.

Keywords: racial bias, appellate judge, wrongful conviction

JEL Classification: K14