Mitigating jurors' racial biases: the effects of content and timing of jury instructions.

• Author: Ingriselli, Elizabeth
• Position: Introduction through III. Hypotheses, p. 1690-1717

INTRODUCTION I. THEORETICAL ACCOUNTS OF JURORS' RACIAL BIASES A. Aversive Racism Theory B. Social Identity Theory C. Procedural Justice II. EMPIRICAL EVIDENCE FOR THE THEORIES A. Aversive Racism Theory 1. Traditional Definition: Explicit Race Salience 2. New Definition: Implicit Race Salience a. Race Salience in a Societal Context b. Implicit Race Salience in Racially Diverse Juries 3. Race Salience in this Note a. Conceptualization of Implicit Race Salience b. Conceptualization of Explicit Race Salience 4. Ambiguity: Why a Lack of Race Salience Causes Juror Biases B. Social Identity Theory III. HYPOTHESES A. Aversive Racism Theory Versus Social Identity Theory B. Procedural Justice C. Timing of Instructions IV. METHOD A. Participants B. Design C. Materials D. Procedure V. RESULTS A. Descriptive Statistics B. Main Results 1. Aversive Racism Theory a. Guilt Judgment b. Perceived Prior Record c. Sentence Judgment 2. Timing of Instructions VI. DISCUSSION A. Support for Timing Hypothesis B. Support for Aversive Racism Theory C. Lack of Support for Social Identity Theory and Procedural Justice D. Limitations and Directions for Future Research 1. Restriction of Sample to White Participants 2. Comparison to White Defendant 3. Qualtrics-Based IAT Limitations 4. Artificiality of Laboratory Settings CONCLUSION APPENDIX INTRODUCTION

The Sixth Amendment of the United States Constitution guarantees the accused the "right to a ... trial, by an impartial jury ..." (1) This assumes that jurors can divorce themselves from any biases that they might have and decide cases based on relevant evidence. Such assumptions are crucial to the legitimacy of the criminal justice system. If jurors do not carefully examine evidence in order to make the best decision possible, then defendants' constitutional right to an impartial jury will be undermined. Recent research into juror decision making shows that jurors have difficulty remaining impartial and often exhibit racial biases. Although this research has shown that black defendants are more likely to be found guilty than white defendants for the same crime, (2) no research thus far has investigated the underlying mechanism that causes these racial biases. Instead, many researchers have attributed such effects, post hoc, to aversive racism theory. (3) However, social identity theory can also plausibly explain such results. Briefly, aversive racism theory is based on the idea that today racism is more implicit and unconscious than explicit and conscious. Many individuals are not explicitly or consciously racist, and do not wish to be so, but have implicit, unconscious biases that emerge when they are unable to monitor their biases. (4) Social identity theory, on the other hand, identifies a more conscious process, whereby individuals exhibit biases favoring ingroup members and disfavoring outgroup members in order to raise the status of their ingroup. (5)

This Note builds on prior research and attempts to pinpoint which of these two theories--aversive racism theory or social identity theory--better explains juror biases. To determine which theory better explains biases and can simultaneously combat biases, the experiment in this Note manipulated the content of jury instructions designed to reduce bias (referred to below as "debiasing jury instructions") and measured mock jurors' judgments of the guilt of black defendants. This experiment also tested whether instructions based on procedural justice can decrease juror biases. Procedural justice posits that individuals are more likely to comply with legal rules, such as jury instructions, if they view legal decision-making processes as fair. (6) In addition to testing whether the content of jury instructions can mitigate biases, this experiment examines whether high or low explicit race salience (7) and whether the presentation of instructions before or after the presentation of evidence affect jurors' guilt judgments of black defendants.

Part I provides a theoretical overview of aversive racism theory, social identity theory, and procedural justice. Part II then provides empirical evidence in support of the race-based aversive racism theory and social identity theory. It investigates three shortcomings in aversive racism theory that the present experiment attempts to resolve. It also proposes that the results from prior experiments are compatible with social identity theory and urges that, as a result, this theory should be investigated as a potential cause of juror biases.

Part III lays out the experimental hypotheses derived from aversive racism theory, social identity theory, procedural justice, and the timing of jury instructions. In short, these hypotheses are as follows. First, if aversive racism theory explains biases, then high explicit race salience and jury instructions that remind jurors of their egalitarian views should decrease judgments of guilt for aversive racists only. Second, if social identity theory explains biases, then low explicit race salience and jury instructions that attempt to increase participants' self-esteem should mitigate judgments of guilt for all participants. Third, if procedural justice reduces juror biases, then debiasing jury instructions emphasizing procedural justice should decrease judgments of guilt for all participants. Finally, the timing hypothesis predicts that the debiasing instructions, if they work, should be more effective at decreasing biases and guilt judgments when presented pre-evidence than when they are presented post-evidence.

Part IV presents the experimental methods used, including the sample of participants, experimental design, materials, and procedure. Part V presents the results of the experiment. The results suggest that aversive racism theory, but not social identity theory, explains jurors' racial biases, and that instructions tailored to aversive racism theory are likely to reduce such biases. Additionally, the results do not support the hypothesis that jury instructions focused on procedural justice reduce biases. Finally, the results largely support the timing hypothesis: jurors were less biased when the debiasing instructions were presented before the evidence. Part VI discusses the results, limitations of the experiment, and directions for future research. The Note concludes by outlining the practical implications of the experimental results and suggests that judges ought to include debiasing elements based on aversive racism theory in their jury instructions and present these instructions before the evidence phase of the trial.

1. THEORETICAL ACCOUNTS OF JURORS* RACIAL BIASES

   1. Aversive Racism Theory

      Aversive racism is a modern form of racism in which whites exhibit implicit biases--biases of which they are unaware but that have discriminatory effects-- against blacks. (8) Although researchers have recognized that aversive racism theory is not limited to whites and blacks, (9) the theory has typically focused on whites' biases against blacks. (10) Aversive racists are those who "regard themselves as nonprejudiced and nondiscriminatory; but, [they] almost unavoidably [] possess negative feelings and beliefs about blacks." (11) They are high in implicit racism, yet low in explicit racism--in other words, they are biased but are unaware of their biases. Because they are low in explicit racism and thus wish to be non-racist in accordance with their egalitarian views, aversive racists suppress their prejudice toward blacks when they are made aware of their biases, (12) which occurs when race is made salient. (13) When race is not salient, and "norms are ambiguous or conflicting, discrimination is often exhibited" (14) due to whites' implicit biases. Aversive racism theory can be applied to the legal realm: if race is made salient in the courtroom, then white jurors often suppress their negative attitudes toward black defendants in an attempt to appear egalitarian, thereby reducing racially biased decision making. (15) Conversely, in trials in which racial factors are not salient, white jurors' implicit biases against black defendants will emerge. (16)

   2. Social Identity Theory

      According to social identity theory, individuals categorize others into ingroups or outgroups and favor members of the ingroup to enhance their own self-image. (17) Social identity theory is derived from three assumptions about individual behavior and society. First, individuals wish to have high self-esteem, which is defined as a positive self-concept. (18) Second, social groups have positive and negative qualities, and individuals' personal social identities are derived in part from society's evaluations of their social groups. (19) Third, the evaluation of an individual's ingroup is determined by social comparisons to other groups. (20) These three assumptions lead to the core theoretical principles of social identity theory: (1) individuals wish to achieve a positive social identity through (2) comparisons that favor the individual's ingroup and disfavor an outgroup, and (3) if an individual's ingroup lags behind an outgroup, the individual will leave the ingroup or try to improve the ingroup's image. (21)

      At the core of social identity theory is the idea that individuals wish to have a positive image of themselves and the status of one's ingroup contributes to this image. (22) Thus, they favor the ingroup over an outgroup to improve the image of the ingroup, which in turn improves their own self-image. (23) The logic of social identity theory predicts that individuals may similarly favor their ingroup in criminal trials in order to increase their self-esteem. (24) If ingroup members are suspected of having committed a crime, individual members of the group may be more lenient in judging the ingroup member. Otherwise, an ingroup member's conviction might suggest the proclivity of the ingroup toward crime. This in turn would lower the status of the ingroup and harm the individual's...