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Mickey Busca, Editor

Implicit Bias Among Judges?

IMPLICIT BIAS AMONG JUDGES?  NOT ACCORDING TO CT SUPREME COURT

The holding in a recent Connecticut Supreme Court case seems to challenge the notion that implicit bias, which the judicial system cautions jurors before trial, could not influence judges. This was the first time that any court in the country had been faced with this issue.

In State v. King, the Court was presented with the defendant’s claim in her appeal from a judgment of conviction of murder that the three-judge panel in her case violated her due process rights because it began deliberations prior to the close of evidence and the submission of the case to the panel.  The Court refused to extend the holding in State v. Washington, 182 Conn. 419 (1980), which established a constitutional prohibition against jury deliberations until the close of evidence and the submission of the case to the jury, to cases involving three judge panels.

Under Conn. Gen. Stat. §54-82(b), a defendant accused of “ a crime punishable by death, life imprisonment without the possibility of release” to elect to be tried before a three judge panel.

In State v. Washington, the Court held that the jury’s impartiality is hindered by presubmission deliberations and concluded that it is “improper for jurors to discuss the case among themselves until all the evidence has been presented, counsel has made final arguments, and the case has been submitted to them after final instructions by the trial court.”

In a statement by the Court that applies to the influence of implicit bias in the adjudication of cases, the Court in that case stated, “[t]he principal evils of permitting premature discussion by jurors are that the jurors may thereby consider evidence unaided by the court’s instructions, and that a juror who has expressed his opinion publicly to his fellow jurors may become irretrievably committed to the point of view despite evidence to the contrary.”(emphasis added).

In Connecticut, individuals summoned to jury duty are mandated to watch a video explaining implicit bias, a preconceived judgment about an individual who is different in some way or who reminds us of an unpleasant encounter or experience.

In giving judges the pass on this human condition, the Court stated, “We trust judges, sworn constitutional officers and legal professionals whose everyday job is to preside in a courtroom if they choose to discuss the case prior to the close of evidence because their deliberations are not hampered by their lack of knowledge of how the law will govern their ultimate decision.”  The Court rejected the suggestion that presubmission deliberations would result in the judges of a panel refusing to change their initial position.  And while recognizing that judges are human beings and that they have initial reactions to evidence which they might even share with their colleagues on the panel, the bottom line is that the Court trusts judges to adhere to their duty as neutral arbiters to properly engage in the deliberative process.

However, this holding is contrary to empirical evidence.

Proponents of critical legal studies have complained that judges favor the existing power structure.  Critical race and feminist scholars have argued that race and gender heavily influence judicial decisions. Guthric, “Inside the Legal Mind,” 780.  One empirical studty of 239 sitting federal district court judges, federal magistrate judges and state trial judges, designed to measure implicit and explicit stereotypes beyond the Black-White paradigm, supported the idea that a broad range of judicial decisions are influenced by automatic biases.  Justin D. Levinson, Mark W. Bennett and Koichi Hioki, Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes, 69 Fla. L. Rev. 63 (2017).