Excerpted From: Susan E. Upward, Empaneling “Fair and Impartial” Members: The Case for Inclusion of an Implicit Bias Instruction at Courts-martial, 32 Southern California Review of Law & Social Justice 333 (Spring, 2023) (127 Footnotes) (Full Document)


MilitaryCourtMartialOn the first page of the Rules for Courts-Martial (R.C.M.) lies the simply stated intent for the more than two hundred pages to follow: “to provide for the just determination of every proceeding relating to trial by court-martial” and the demand that “these rules shall be construed to secure simplicity in procedure, [and] fairness in administration.” But decades of research and reports have shown that the military justice system is far from unbiased in the disposition of criminal cases of servicemembers. Studies from a multitude of sources have repeatedly quantified and warned against serious racial disparities in the military justice system. Yet practical solutions to address these disparities in a timely manner remain frustratingly elusive, and military leaders have only recently come to accept the role of bias--either intentional or implicit--and its effect on the military writ large, let alone the military justice system.

While data collection, research, education, and training are all part of a long-term solution for the armed forces as a whole, there is a simpler and more expedient course of action that can be implemented today in any court- martial to ward off the prejudicial effects of bias in the courtroom: an implicit bias instruction, given by the military judge to court-martial panel members to ward off the adverse effects of prejudices that the members may not be aware they even have. Such a tool is increasingly being used by civilian courts--federal and state, criminal and civil--to address bias and ensure that defendants have a better chance at the “fair and impartial” jury the Constitution requires. The inclusion of an implicit bias instruction is a simple procedural addition that benefits the military justice system as a whole--it is a straightforward, frontal attack on the myriad of biases that only serve to hinder the fair administration of military justice and the goal of providing a just determination in every case.

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What the armed forces cannot afford to do is nothing. After fifty years of futility, the military still appears to be struggling with where to start when it comes to addressing the racial disparity in the military justice system. Uniformed leadership has at least identified one of the root causes: unconscious bias. However, if the military is prepared to address implicit bias that it now seems ready to admit affects all servicemembers, then it must necessarily address it throughout the stages of the court-martial process and not just in the referral of cases before the start of litigation.

If truth dies in darkness, then we must take whatever steps are necessary to bring it into the light; but thus far, a meaningful discussion about the existence of implicit bias and the effect it may have on a court-martial members panel has yet to be a common occurrence in the sanctum of the military courtroom. The implied bias mechanism in voir dire alone is simply insufficient to address latent biases that exist during the entirety of court-martial proceedings. The identified clear and present danger is implicit bias, and the most direct and straightforward steps should be taken to target the threat and mitigate its harmful effects. As a result, an implicit bias instruction should be included in the panoply of instructions that are currently given at courts-martial and already directly or indirectly address biases in court-martial members. It is the simplest solution to the otherwise complex problem of racial disparity in the military justice system--an implicit bias instruction's inclusion will only further facilitate the stated goal and a servicemember's right to a fair and impartial members' panel.

Lieutenant Colonel Susan E. Upward is an active-duty judge advocate in the United States Marine Corps.