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The unconscious bias problem in criminal justice: Part II

| Aug 11, 2015 | Criminal Defense

In our post last week, we began a discussion about a major problem with our nation’s criminal justice system. It is largely predicated on fair trials and impartial jurors, but the techniques used to achieve these values are often antithetical to what we now understand about human behavior. Conscious and unconscious biases are affecting the outcomes of criminal cases, and results can be disastrous.

The specific examples of how criminal investigations and trials can be unduly influenced are listed in the first post. They were shared in a Washington Post interview with law professor Adam Benforado. He recently wrote a book called “Unfair: The New Science of Criminal Injustice.” In today’s post, we’ll discuss some of the solutions to these problems as suggested by Benforado and other criminal justice reform advocates.

During investigations:

  • Rely less on eyewitness identification
  • When using eyewitness ID, have the lineup process facilitated by a law enforcement official who is not otherwise involved in the case (to prevent hinting body language and suggestive questions
  • Treat eyewitness ID and testimony as evidence that can easily be corrupted

In the courtroom:

While it may sound impractical at first, one of the solutions to bias in the courtroom could be to have “virtual trials” rather than in-person trials. Instead of a video conference model, however, each defendant, witness, prosecutor, defense attorney and judge could be represented by avatars. These computer-generated human figures could help ensure that jurors were not swayed by the defendant’s skin color, level of attractiveness, mannerisms or any other factor that should not be considered when rendering a verdict.

Virtual trials could also be on a short time delay to prevent bias created by attorneys – both intentionally and unintentionally. Prosecutors sometimes ask questions they are not allowed to ask because they know juries will hear them and remember them. Even if there is an objection and the judge tells jurors to disregard what they heard, the damage has already been done. A time delay would allow the court to remove such statements before they were heard by a jury.

While changes like these are not likely to be enacted any time soon, we must at least continue to discuss this issue. Our justice system may never be completely fair and unbiased, but that doesn’t mean we should stop striving for those goals.

Source: The Washington Post, “The U.S. court system is criminally unjust,” Ana Swanson, July 20, 2015

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