Sybil Procedure: Trusting your objectivity.

Byline: Sybil Dunlop

There is a new trend in the legal field. As we have learned more about the real dangers of implicit bias (and how such biases impact judicial outcomes), we have started warning juries about the risk of implicit bias before jurors begin deliberations. The Iowa Supreme Court recently held that it would not be an abuse of discretion to use the American Bar Association's proposed instruction on bias. And the Western District of Washington is showing a video on unconscious bias to potential jurors. But while I want nothing more than to eliminate implicit bias from impacting jury decision making, I have real concern that implicit-bias jury instructions and even the well-meaning video may actually produce worse outcomes (and by worse outcomes, I mean outcomes influenced by racial or gender bias).

As a refresher, let me start with the definition of implicit bias. Implicit bias is not explicit racism or sexism, which of course exists. Implicit bias, instead, is an unconscious association, belief, or attitude toward any social group. As a result of implicit biases, we (as a society) are more likely to associate weapons with black faces faster than we do with white faces. We find it easier to pair women with family words than career words. Due to our implicit biases, we can experience surprise when our Delta pilot is a young African American woman. Because we weren't expecting that. Our expectations are, of course, informed by the messages we have received our whole life about what a Delta pilot looks like. It looks like Captain Sully.

When we make decisions too quickly, we can rely on implicit biases and not good, solid information. So, for example, when we decide we want to hire someone based on "a gut feeling" that they will be a good employee, we might not realize that we feel that way simply because they already look like everyone else we work with. Nobel laureate and psychologist Daniel Kahneman is a leading researcher in this field. In his book, Thinking Fast and Slow, he explains that we make decisions in one of two ways. When we use "System 1," we go with our gut and make decisions quickly. But our "gut" is generally just a reliance on implicit biases. When we go with our gut, we are more likely to hire the pilot who looks like Tom Hanks than the one who looks like Halle Berry because aren't digging into the pilot's resume.

When we use "System 2," we engage with a decision and aim to think through problems more carefully...