Massachusetts’ highest court has approved a jury instruction on implicit bias for use at all criminal and civil trials in the state. This is an important step forward in ensuring that people charged with crimes are treated fairly.

What are jury instructions?

In every case in which a jury is impaneled, or selected from a group of people called to jury duty, the judge will read jury instructions to them. A jury instruction is a statement explaining what the jury should or should not do when it listens to evidence and arguments and deliberates in private. Jury instructions cover a very wide range of topics. For example:

• The elements of crimes
• Explanations of legal terms of art like “intent”, “operation”, and “possession”
• Burdens of proof
• Jury behavior

The goal of jury instructions is to ensure the jury does its job of deciding the case fairly. Lawyers and judges often have discussions about proper jury instructions and file motions before trial about them. Sometimes whether a jury was instructed properly becomes an issue on appeal. In Massachusetts, there are model jury instructions for criminal cases. These are pre-written instructions most judges and lawyers agree are acceptable.

What is implicit bias?

According to the American Psychological Association, implicit bias is a negative attitude a person has but is not consciously aware of against a specific social group. It often comes from experiences. Implicit bias can be contrasted with explicit bias.

Here is an example distinguishing the two:

A person makes a conscious decision not to hire an applicant based on their ethnicity. That person has shown an explicit bias. They are aware they are not hiring the applicant because they have a negative view on their ethnicity. In contrast, when a person unknowingly chooses one candidate over the other because of an ethnic preference, that person has demonstrated an implicit bias. The person is not aware of the negative attitude they are expressing.

Why does the court system want to make jurors aware of implicit bias?

The legal system is concerned with ensuring fair outcomes. This is especially true for people accused of crimes. Since the punishment is a loss of freedom, the stakes are high and fair treatment is especially important.

There are a variety of reasons a person might not be treated fairly at their trial. This could include procedural unfairness, such as a judge making a legal mistake on which burden of proof applies or on whether a piece of evidence should be admitted. There are other types of unfairness as well. For example, a person might not be treated fairly based on their social or biological status, such as their income level, their race, their gender, or their political beliefs.

To reduce the risk of implicit bias, the Supreme Judicial Court decided to approve a new jury instruction on implicit bias based on scientific research.

What does the new jury instruction say?

The new instruction begins by explaining the importance of fairness in the legal system. It then explains what implicit bias is. Finally, it gives jurors strategies for avoiding implicit bias:

• Slow down and think about decisions before making them
• Keep an open mind and do not decide cases before all the evidence is presented
• Listen very carefully to the evidence
• Consider individuals, not groups
• Consider if the evidence would be viewed differently by people in other social or biological groups

The highest court has requested that jurors be read from the instruction both before and after the presentation of evidence. The first part can be read here and the second viewable here.

Before the instruction was approved, Massachusetts Lawyers Weekly asked Attorney Barabino what he thought about a jury instruction on implicit bias. Here is a link to the article quoting his answer.

How else is bias considered in the legal system?

Bias is not only considered before and during trial but also after. For example, Step 1 of the Massachusetts Sentencing Guidelines requires a “bias check.” The Sentencing Guidelines are binding instructions judges must use when sentencing a person convicted of a crime.

Here are some of the questions the Sentencing Guidelines require judges to ask themselves before sentencing:

• Are there areas or decision points in which bias may be present?
• Have you avoided decisions under rushed, stressed, distracted, or pressured circumstances?
• Have you considered what evidence supports the conclusions you have drawn and how you should challenge unsupported assumptions”

What can defense attorneys do for their clients concerned about bias?

There are several things experienced defense attorneys can do to ensure fair treatment for their clients. Here are a few examples:

• Move to Suppress Evidence: Evidence can be thrown out if it was obtained based on prejudicial assumptions. For example, a person might be illegally stopped on the street and searched based on discriminatory factors like their race and ethnicity.
• Move to Strike Jurors: Prospective jurors can be stricken for cause or peremptorily. Cause for dismissal could be bias. Using a peremptory strike on a juror, or striking them without cause, can be challenged if it is done so discriminatorily.
• Motion for a New Trial or Appeal: If there is evidence that a jury had one or more members who were prejudiced based on a person’s social or biological characteristic that could be a reason to throw out a guilty verdict.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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