Author: ANJALI GUPTA
As the scientific literature on implicit bias is growing exponentially, the time has now arrived to face a critical question: Is there anything, that we should do about implicit bias and prejudice occurring in courtrooms? This blog comprises of legal research of biaseness and prejudice in courtroom. It includes even a sitting federal judge who seek to answer this question in accordance with “behavioral realism.” This blog first provides a simple introduction to bias and possible reasons of bias, introduction to types of bias with some important theoretical clarifications that distinguish between actual and apparent bias, and courtroom prejudice. Next, the blog moves further to research on practice of biasness by judge and advocates or other members of judiciary in and out of courtroom. This blog also involves several cases in which biasness is discussed. This blog involves not only a focused practical review but also a step-by-step examination of how criminal and civil trials can proceed without discrimination. This blog examines various strategies which can be used to counter biases taking place in justice system, such as the judge and jury.
Imagine a situation where it’s been years of your family fighting a case in court. But what you get is hearing after hearing and all you face is biaseness in court, hampering with evidences. You think your case is stronger but everything goes opposite. This is what has become more often in this era.
The common law adversarial system means that there will always be someone who wins and someone who loses in litigation. Parties that lose may feel that one of reasons that they lost, was because the judge in their case was biased against them. However, when will such concerns cross the line into real and complain able issues that a judge might be considered to be ‘biased’?
Now the question comes what is “prejudice” in legal terms. When a lawsuit is dismissed with prejudice, the court conveys that it has made a final judgment on the merits of the case, and so plaintiff is forbidden from filing another lawsuit based on the same grounds.
When a case is dismissed without prejudice then it means the plaintiff can refilled the claim in a different court on same grounds.
Prejudice means “pre-judging” something. It generally implies passing a judgment on the subject based on false beliefs or before considering where the dominance of evidences actually lies. Prejudice may involve discrimination of individuals toward people, things or impairment to rights of a party involved in a legal dispute.
Now comes the question what is bias. Bias is an prejudice for or against one person or group of people, in a way that is considered to be unfair. Bias can be of two types namely, actual bias and apparent bias.
Actual bias arises where the judge is a party to the litigation or has a financial or other interest in the outcome of the litigation. The interest can be the promotion of a cause and does not need to be proprietary or pecuniary. The question is not whether the judge has some link with the party involved in a cause before the judge, but whether the outcome of that cause could, realistically, affect the judge’s interest.
Apparent bias arises when, although the judge is not a party to the proceedings, and does not have an interest in its outcome, there is something in judge’s conduct or behavior, their interests, affiliations are that gives rise to a doubt that they have not decided the case in an impartial manner.
Biaseness can also be on grounds of judge’s social, educational or employment background; nor that of any member of the judge’s family; or previous political associations; or membership of social, or sporting, or charitable bodies. It can also depend on religion, gender, age, class, means, and sexual orientation.
Bias is a spectrum which consists with wide range of aspects as its colors but prejudice lies at its extreme end with most wavelength. A biased judge will see and unseen things and not surely consider them in a particular direction, favoring a particular conclusion. A completely unbiased judge would need an equal amount of persuasion to reach any conclusion, using consistent rules of investigation; a completely biased judge would be prejudiced, always coming to a particular conclusion no matter the investigation. If merely biased they may not have determined an outcome already before beginning of examination but it can become hard to convince them in one direction than another because one arguer is working ‘uphill’ while other one works ‘downhill’. The existence of two women (maybe mother and wife) might be needed to match the existence of a man (son or husband).
The standards of evidence can be changed in two ways:
• Lowering the standards for evidence in support of a belief
• Raising the standards for evidence against a belief.
At the lowest possible standard, the claim is evidence of itself; at the highest possible standard, anyone who is not omniscient just cannot be sure of anything.
In simple words Bias is a mental tendency favoring one version over another with absolutely no evidence to back it up. Prejudice is an unreasonable or unfair dislike or giving preference to someone or something.
Public trust and confidence in our legal system is grounded in the perception of fairness and equality in our courts and in the offices that lend support to our courthouse.
The presence of fairness and equality in our courts is primarily a product of the people who work there and how they conduct themselves when interacting with the public.
Words, actions, and behaviors that indicate bias diminish public trust and confidence in two fundamental principles of our justice system:
•Our courts are free of perceived and actual bias.
•Equal access to fair and dignified treatment in our courts awaits all who enter therein.
When public faces biased behavior by the judge in court or officers, it lowers the confidence of public in the equality and fairness of the entire judicial system. In other words, your words, actions, and behaviors matter. You have an effect on how the public perceives our justice system.
Biasness can also take place by mistaken conclusions drawn by judges, attorneys, or juries about the behavior of litigants or witnesses, due to ignorance of variation in behavioral norms among cultural groups.
The problems of bias and prejudice are pervasive throughout our society. In every phase of our lives whether public or private, it is our inbuilt human tendency to fear, distrust and judge others. Challenging the society to overcome this division and replace bias and prejudice with fairness and justice seems to be unachievable. The theme of our Constitution or fuel of recent riots was like a prize in revolution. Today, the struggle is most visibly displayed in the arena of most of the foreign judicial systems. Nation’s courtrooms are the places where we place our hope and faith that this government of laws will provide true justice with fairness, unstained by the bias and prejudice. It’s rare that we are satisfied with the fact that bias and prejudice do not operate in our courts.
Judges should be rigorous and should not consist of personal biasness when making judgments and decisions. There are few judges who readily admit that they have biases which interfere with their impartiality. Judges are typically appalled if their impartiality is called into question. Most judges after all, believe themselves to be consistently objective, impartial and fair. Judges generally believe that they have taken worked really hard to be at that supreme position and that they have been granted full assistance to be in each side in a controversy, allowing both sides the opportunity to fully present their case.
The judicial oath asks judge to be completely impartial. But impartiality is not easy to attain. For a judge does not shed the attributes of common humanity when he is in the position of judge and has to pass judgment and do justice. The ordinary human mind is a filled with desires and thoughts inherited and acquired, often dangerous because they are unrecognized by possessor. Few of the judges are as neutral as glass, and indeed those minds may actually fail in judicial efficiency, as for being in that position tints of imagination and sympathy are needed to temper the cold light of reason if human justice might be a mechanical product, but amidst the incalculable complexities of human relationship the administration of justice can never be of this character. To quote the ancient and impressive formula, the judge in pronouncing his decision must be rightly advised, and have God and a good conscience before him. That person must remove partiality from his mind for people as well as partiality to arguments which is a much more subtle matter, for every legal mind. And also should have an inbuilt susceptibility to particular classes of arguments.
Stop for a moment and think about the last trial, hearing or settlement conference over which you presided. How many thousands of stimuli confronted you-all the sights and sensations, all the words spoken by everyone present, all the possible implications of everything that happened? It is simply impossible for us to notice, let alone analyze and use, all of the sensory information available in our surrounding environment. If we were capable of consciously perceiving all of the sensory information available, the vast amounts of information would cause an overload. Consequently, the brain uses simplifying strategies, so-called to help it reduce the quantity and complexity of information which must be integrated to yield a rational decision. 31 Of particular interest to this effort is what behavioral scientists refer to as schemata, which are among the mind’s main weapons for coping with information overload.
Some attorneys may trade on this defect of perception by trying to paint a personality picture of a party to the judge such as “chronic litigant” or “career criminal,” etc., banking on the fact that individuals tend to rely on their stereotypes or implicit personality theories when forming judgments. Paradoxically, other studies have found that information which violates expectations and threatens existing schemata often stands out and gets extra attention in the decision making process. According to researchers, when information varies greatly from judges’ expectations, the information is likely to be attended. In an effort to maintain their existing beliefs, judges often tend to discount, redefine, or restructure available information so that they can explain or fit inconsistent information into their preexisting expectation
The judicial system does demand impartiality of the jury. The system also demands competency of decision-making by the jury. Competency and impartiality are related. A jury which renders an incorrect decision based on the facts and evidence presented may have decided the case based on its bias. Thus, an impartial jury must possess competency. Trial procedure, however, may inhibit the jury from rendering a competent decision. For example, if a deposition is read into testimony, a jury will respond more favorably to a reader who presents the deposition in a positive manner. For example in case of Kamyani Vs Sandhu (2017). Thus, the jury’s decision-making has the potential of being far more accurate and far more competent in the long run than the individual decision of a particular judge. In conclusion, the two foremost issues surrounding the use of juries are impartiality and the related concept of competency. Despite jury critics’ complaints, in their anticipation to be in a courtroom, often for the first time, and render a proper verdict, jurors, in my experience, are inclined to be more conscious of the evidence presented and the credibility of the witnesses. The result is a more competent and impartial jury.
Understanding Prejudice and stereotyping by Todd D Nelson