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Preparing a jury to deal with implicit bias

On Behalf of The Foley Law Firm | February 24, 2020

Attorneys and judges in Colorado may be able to take steps to reduce the likelihood that juries will reach verdicts based on implicit racial bias. According to a paper published in the Seattle Journal for Social Justice by an assistant federal public defender, one judge in Iowa does a PowerPoint presentation for potential jurors. The paper includes a number of other suggestions for addressing implicit racial bias. Although its focus is on the Latinx population, the techniques can apply to other populations as well.

An attorney might want to make a pretrial motion to suppress evidence if it can be demonstrated that a search was prompted by implicit racial bias. Examining an officer's record could support this claim. An attorney might also want to bring in an expert witness to explain the unreliability of cross-racial identification. During jury selection, attorneys can ask potential jurors to tell a story about race from their own experience. Jurors could also be required to take the Implicit Association Test.

Attorneys may want to address implicit bias as part of the jury instruction. This could involve asking jurors to set aside any prejudice in making their decision. During the trial, attorneys may work to create a narrative that shows the defendant as an individual. The paper also encourages attorneys to examine any implicit bias within themselves.

People who are facing charges related to drugs, assault or other felony or misdemeanor charges may want to discuss these and other strategies with an attorney. An attorney might examine whether a person's rights may have been violated in other ways or if forensic evidence was handled correctly. During a trial, the interpretation of forensic evidence or the reliability of eyewitness testimony may be questioned. Another option might be for the individual to choose a plea bargain instead of a trial.

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