Steven S. Kimball
400 Capitol Mall Ste 2400
Sacramento , CA 95814
Fax: (916) 930-3201
Email: stvkmb52@gmail.com
UC Berkeley Boalt Hall
Steven is a lawyer in Sacramento
If you believe implicit bias--unconscious bias against others because of their gender, sexual orientation, color, ethnicity or nationality--affects jury verdicts, is there anything to be done about it? Specifically, can a jury instruction counter bias that jurors are unaware of or even deny exists. The answer is probably no.
I had the privilege of working on an article by Ralph Weber published in 2019 by the American College of Trial Lawyers titled, "Improving Jury Deliberations Through Jury Instructions Based on Cognitive Science." The article promoted jury instructions based on the best seller, "Thinking Fast and Slow," (2011) by Daniel Kahneman. The idea was to counter people's natural tendency to make decisions based on fast, intuitive thinking and replace it with deliberate, careful thinking, which Kahneman called System 1 versus System 2 thinking. System 1 thinking involves cognitive shortcuts, which Kahneman called "heuristics," such as the "affect heuristic" where decisions are based simply on "do I like this?" or "confirmation bias," the tendency to confirm a first impression. System 2 thinking requires effort and attention but leads to better, less biased decisionmaking. When confronted with a complex problem like reaching a verdict based on contradictory evidence, people may naturally default to a quick, intuitive answer prone to error. As a remedy, the article proposed model jury instructions, such as an "accountability" instruction requiring each juror to justify their decision to the others and the "devil's advocate" instruction where jurors were asked to consider facts leading to the opposite of their initial conclusion.
In 2023, California added a criminal jury instruction on Implicit or Unconscious Bias, CALCRIM No. 209, that incorporated some of these concepts. The Bench Notes to CALCRIM No. 209 cite Justice Liu's dissent in People v. Williams (2023) 14 Cal.5th 429, 451, where he wrote: "Research confirms what is no surprise as a matter of common sense: On-the-spot discretionary decisions are vulnerable to implicit bias because they are neither constrained by a clear rubric of relevant criteria nor preceded by extensive deliberation." CALCRIM No. 209 cautions jurors about fast, intuitive System 1 thinking. The instruction explains: "Our brains help us navigate and respond quickly to events by grouping and categorizing people, places, and things. We all do this. These mental shortcuts are helpful in some situations, but in the courtroom they may lead to biased decisionmaking." CALCRIM No. 209 explains this form of thinking operates unconsciously. "Although we are aware of some biases, we may not be aware of all of them. We refer to those biases as 'implicit' or 'unconscious.' They may be based on stereotypes we would reject if they were brought to our attention. Implicit or unconscious biases can affect how we perceive others and how we make decisions, without our being aware of the effect."
CALCRIM No. 209 proposes three strategies to promote unbiased decisions. First, consider the evidence carefully and thoughtfully, examine your decision for bias, and don't jump to conclusions based on your likes or dislikes, generalizations, prejudices, stereotypes or biases. Jurors are thus instructed to employ System 2 versus System 1 thinking. Next, consider your initial impressions of people and evidence in the case and whether it would be different if they were a different age, gender, race, religion, sexual orientation, ethnicity or national origin. This is a version of the devil's advocate instruction. Finally, listen to the other jurors whose background and experience might be different from yours. This part of the instruction suggests in part the film "12 Angry Men," also discussed in the College of American Trial Lawyers article. In the film, Henry Fonda, the lone holdout after an initial guilty vote, overcomes the problem of a dominant or "loudmouth juror," in the film a bigot who believes the prosecution has presented an open-and-shut case that a poor Puerto Rican teenager has killed his abusive father, by going slowly through the evidence and asking questions (i.e., System 1 thinking).
Does CALCRIM No. 209 or a similar instruction lead to unbiased or less biased jury verdicts? The answer is not likely, given the nature of implicit bias. The American College of Trial Lawyers article and CALCRIM No. 209 both rest on the mistaken notion that implicit bias is a defect in thinking (fast thinking) that can be overcome by better thinking (slow thinking). But "[u]nconscious bias is not merely a cognitive phenomenon--it is fundamentally embodied." (Ungar-Sargon, "The Science of Interception and Unconscious Bias in Healthcare: A Call for Embodied Clinical Practice," Neurology & Neuroscience (2025).) "Research demonstrates that 'implicit bias develops early in life from repeated reinforcement of social stereotypes' and 'occurs among children as young as 3 years old throughout the world.' Importantly, these biases become embodied patterns--automatic somatic responses that are triggered by social cues and influence behavior even when they contradict explicit beliefs." (Id. at p. 2, fn. omitted.) When encountering a person from another demographic group, our bodies respond "with subtle but measurable changes in arousal, muscle tension, breathing patterns and neural action," which are "somatic responses, largely beneath conscious awareness" that nonetheless shape judgments and behaviors. (Id. at p. 2.) In other words, implicit bias might manifest itself as a physical feeling--not so much an unexamined thought or belief--that still may influence or even control decisionmaking.
Nor is implicit bias exhibited in System 1 thinking but not in System 2 thinking, as CALCRIM No. 209 posits. Jurors for the most part are diligent and work hard to consider the evidence on both sides in deliberations. But jurors in weighing evidence carefully can nonetheless readily shape the facts to fit bias. As David Hume, famously (and controversially), declared: "Reason is, and ought only to be the slave of the passions." "A Treatise of Human Nature," (1739). Despite Justice Liu's endorsement of common sense, CALCRIM Nos. 105 and 226, directing jurors to "use your common sense and experience" in determining the credibility of witnesses, amounts to a wild card allowing jurors to evaluate evidence based on biases acquired over of a lifetime. (See People v. Paulsell (1896) 115 Cal.6, 12 ["[T]he phrase 'common sense' is about as uncertain as any phrase in the language. When one speaks of common sense, he generally means his own sense"].)
Implicit bias can be subtle and complex in its effects. Consider a "peeping Tom" case where the middle-aged black defendant testified he was taking a shortcut late at night across the patio of the complaining witness, and she testified she saw him peering in through a crack in the vertical blinds of the sliding door to her apartment. Defendant testified he was many feet away as he crossed the small patio and just glanced over, but the witness testified he was inches away as he peeked directly in. The jury acquitted, necessarily finding that the defendant's account was more credible. A natural assumption might be that the defendant would be the most affected by implicit bias. The complaining witness, however, was a young woman of mixed race who chose to testify dressed informally in an oversized hoodie. It is not difficult to find examples of bias against young women as the complaining witnesses in sex offense cases. Assuming as CALCRIM No. 209 instructs that everyone harbors implicit bias, did it run against the complaining witness rather than the defendant?
There are "somatic" techniques said to be effective in combatting implicit bias--such as breathing exercises to calm the nervous system--which would not be practical in a trial setting. If CALCRIM No. 209 is a well-meaning but ineffective attempt to counter implicit bias, what's to be done? Maybe nothing other than call out the problem as CALCRIM No. 209 does.
On the other hand, if we feel antipathy to others different from us that implicit bias is said to produce but reject the incidents and effects of express bias, we still accomplish something significant. In this respect, the British author Kingsley Amis, might serve as an unlikely example. Condemned for his bigoted views over a long career, Amis twice in his novels "One Fat Englishman and I Want It Now," portrayed English characters with no love for anyone who was not white, but who could not stomach Americans spouting racism. In "I Want It Now," on hearing a prominent man declare ugly racist views in front of the black serving staff, a cynical and generally self-serving UK television journalist loudly says, "What you're saying is balls. Rubbish, nonsense, tosh, junk. And also extremely offensive, barbaric, inhumane, foolish, ignorant, outmoded and in the circumstances unforgivably rude." As Amis illustrates, our inability to eliminate implicit bias does not necessarily translate into tolerance for bias.