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Melody Finnemore

Melody Finnemore, A Case of Bias: Jurors Asked to Maintain Impartiality, but Is That Humanly Possible?, 72-MAY Oregon State Bar Bulletin 32 (May, 2012)


Many Americans who consider themselves of strong moral and ethical standing will shudder at the thought of prejudice, whether it's against a group a particular religion, ethnicity, gender, sexual orientation, income bracket or other segment of the population that differs from their own.

And yet, maybe we can't help but feel biased against certain groups and, oftentimes, don't even recognize it.

The Implicit Association Test (IAT) developed by Harvard University, the University of Virginia and the University of Washington seems to indicate that people truly can't help but incubate some prejudice or another. These tests measure unconscious or automatic biases that, according to the studies, help form the basis of who we are as human beings.

The ability to distinguish friend from foe helped early humans survive, and the ability to quickly and automatically categorize people is a fundamental quality of the human mind, states Teaching Tolerance, a project of the Southern Poverty Law Center. Categories give order to life, and every day, we group other people into categories based on social and other characteristics. This is the foundation of stereotypes, prejudice and, ultimately, discrimination.

Phyllis Lee, Ph.D., a frequent diversity consultant for the Oregon State Bar and longtime leader of multicultural affairs and inclusion at Oregon State University, describes bias as an ingrained piece of the entire human thought process.

I would call it a blanket indictment because people can be biased in so many ways. It's really important when we talk about bias that we start with the fundamental foundation -- that all of us as human beings have, Lee says.

She notes that bias in itself is not necessarily a bad thing. Simply defined, it is a mental inclination or a particular parriality toward something. It depends on what someone is biased about and what they do with it, Lee says. It also depends on whether someone even knows they have a certain bias.

So where does this inherent bias come into play in the courtroom? For jurors, it can range from positive or negative perceptions about the plaintiff, defendant and their attorneys to the judge, bailiff and other court staff. The most insidious damage occurs when jurors foster discriminatory feelings toward the attorney representing either the plaintiff or the defendant and then direct it -- knowingly or unknowingly -- toward that attorney's client.