Abstract

Excerpted From: Kaitlin McCormick-Huhn, Debiasing Juror Decisions Using Intersectionality, 60 University of Richmond Law Review 277 (Winter, 2026) (375 Footnotes) (Full Document).

The constitutional right to a trial by an impartial jury is guaranteed to all criminal defendants. To safeguard that right, strategies must be developed to mitigate the effects of implicit bias on jurors’ decision-making in criminal trials.

Implicit biases are unconscious attitudes that are activated automatically about others, based on others’ social groups (e.g., race, gender, socioeconomic status, religion, age). For example, people tend to automatically associate men with careers and women with family.
Implicit biases are consequential because they surreptitiously affect our understanding, actions, and decisions in systematic ways, depending on people’s social group memberships (e.g., Asian, woman, wealthy, Christian, elderly). For example, racial bias affects pediatricians’ medical treatment such that the higher pediatricians were in pro-white implicit bias, the less likely they were to prescribe pain medicine to hypothetical Black children.

Jurors also have implicit biases, including biases directly relevant to legal phenomena. For example, Americans more strongly associate--meaning they more easily and automatically mentally connect--Black people with being guilty than they do white people and implicitly associate concepts of payback and retribution with Black people, yet associate concepts of mercy and leniency with white people. Thus, judgments as monumental as whether a criminal defendant is guilty can be affected by jurors’ implicit biases.

Several members of the United States Supreme Court have acknowledged the prevalence and damaging effects of implicit bias. For example, Justice Sandra Day O’Connor wrote, “It is by now clear that conscious and unconscious racism can affect the way white jurors perceive minority defendants and the facts presented at their trials, perhaps determining the verdict of guilt or innocence.” Similarly, Justice Ruth Bader Ginsburg remarked, “It is well documented that conscious and unconscious race bias ... remain alive in our land, impeding realization of our highest values and ideals.” Justice Byron White observed that “[m]ore subtle, less consciously held racial attitudes could also influence a juror’s decision in this case.” And Justice William Brennan stated it was “incontestable that subconscious, as well as express, racial fears and hatreds operate to deny fairness to the person despised.”

The American Bar Association created the Achieving an Impartial Jury Taskforce (“AIJ”), composed of law professors, psychology professors, judges, and other legal practitioners, to generate solutions to the problem of implicit bias affecting the jury. The taskforce created a model implicit bias jury instruction that can be used in the courtroom. Since then, seventeen jurisdictions have attempted to answer the call to mitigate juror implicit bias in criminal trials by adopting implicit bias jury instructions of their own. However, two experimental tests have been conducted to examine the effectiveness of such instructions, and both tests revealed the implicit bias jury instructions were potentially ineffective.

In this Article, I conducted the first analysis of the instructions in use across the seventeen jurisdictions, including the two that have been experimentally tested. The thematic analysis revealed that almost none of the instructions included specific tailoring to the social group memberships of the relevant parties in the present case. And none of the instructions mentioned the relevant oppression and privilege or histories that are intertwined with those relevant social group memberships.

I suggest that past efforts may have been ineffective because the instructions neither clarified how implicit bias was applicable to the particular defendants and situations nor emphasized the consequences of making judgments affected by implicit bias. Psychological studies support foregrounding the structural dynamics that are intertwined with identity, such as the racially charged nature of the crime, as a means to reduce bias. Legal scholar Cynthia Lee has created a race-switching instruction that draws on these studies by explicitly identifying the race of the defendant and victim in the racially charged situation of an interracial crime with a self-defense claim. However, the race-switching instruction and the instructions in use across jurisdictions do not specifically connect social group dynamics to broader structural power realities and to historical advantages and disadvantages. This Article is the first to propose that intersectionality provides the ideal framework to foreground the research-based concepts from the race-switching instruction and the essential, yet missing, concepts of power and history within an implicit bias jury instruction.

Intersectionality theorists understand social group memberships as co-constituting one another to create people’s multidimensional, power-relevant life experiences in various contexts. For example, in her influential 1989 article, legal scholar Kimberlé Crenshaw illustrated the gaps that an intersectionality perspective reveals in Title VII claims. Crenshaw explained how legal definitions of discrimination are based on single-axis categories, such as sex OR race. Her analysis revealed that such definitions leave out people with multiple marginalized social group memberships, such as Black women who faced discrimination relative to white women and relative to Black men, yet who had no legal recourse because they did not face purely sex discrimination or purely race discrimination. In one example, Crenshaw described a case where Black women were not hired before 1964 and challenged seniority-based layoffs at General Motors. General Motors had hired white women before 1964. Therefore, the court found Black women could not demonstrate that the company discriminated on the grounds of sex. Intersectionality theorists also view intersectional positions as inseparable from historical power-relevant experiences. For instance, sociologist Patricia Hill Collins explains that modern violence enacted on African American women is connected to structural disadvantages and historical violence that African American women have experienced from American institutions throughout history.

My proposed jury instructions have a number of characteristics that are derived from key components of intersectionality theory. First, the intersectional positions that are relevant to the criminal case are clearly labeled within the instruction (e.g., Black woman). Second, the context is described within the instruction, including information about the situation, the particular crime, and the other actors. Third, the instruction includes an acknowledgement of the power-relevant and historical factors intertwined with the intersectional positions (e.g., patterns of gendered racism and histories of Jim Crow). To support my proposed instruction, I suggest related reforms including training for defense attorneys who would move for an instruction, for prosecutors who could stipulate to such an instruction, and for judges who would accept or deny the use of such an instruction.

In Part I, I first review research findings on implicit bias to explain its operation, scope, prevalence, and consequences. Next, I describe studies that demonstrate how implicit bias affects jurors’ guilt decisions. I then review efforts to mitigate effects of implicit bias on juror decision-making and their effectiveness. I further analyze and report the results of a thematic analysis that I conducted to examine patterns in the implicit bias jury instructions that are in use across seventeen jurisdictions. To my knowledge, no one has assessed the patterns across the various instructions in use before. I then turn to summarizing two experimental tests that have been conducted to assess the effectiveness of two of these jury instructions that are currently in use. Finally, I discuss how an effective instruction could be developed.

In Part II, I review intersectionality theory. In particular, I describe the fusion of intersectionality with psychology. I focus on three main components of intersectionality that can be applied to psychological phenomena, such as implicit bias: specificity about intersectional positions, specificity about context, and connection to structural power and history.

In Part III, I describe studies that illustrate how an implicit bias jury instruction could be more effective if it drew on intersectionality theory. I analyze how an implicit bias jury instruction would be improved if it applied each of these three features of intersectionality. In Part IV, I propose guidelines for intersectional implicit bias jury instructions. I provide example instructions for use in criminal trials. Additionally, I propose related changes for the instruction to be effective. In Part V, I consider objections to intersectional implicit bias jury instructions and provide counterarguments. Lastly, in Part VI, I identify other stages of the criminal process that are affected by implicit bias and call for future scholarship to design interventions tailored to those stages.

[ . . . ]

A criminal defendant’s right to a trial by an impartial jury is enshrined in the Constitution. Yet, implicit bias is widespread. If unchecked, it impedes criminal defendants from being adjudicated by impartial juries.

I propose that intersectional implicit bias jury instructions can be used to mitigate jurors’ bias in decisions about guilt in criminal trials. Criminal defense attorneys as advocates, prosecutors as collaborators, judges as gatekeepers, and court systems as those setting the norms, can use these instructions to help the accused vindicate their rights.

As executive and legislative efforts currently seek to end many programs relating to diversity, equity, and inclusion, it is urgent that bias intervention not be eschewed by the courts. Strategies such as implementing effective interventions in the criminal trial to mitigate juror implicit bias remain vitally important.

Attorney representing individuals sentenced to death in their state and federal postconviction proceedings. Former Editor-in-Chief of the Nevada Law Journal. Ph.D. in Social Psychology & Women’s, Gender, and Sexuality Studies.