Levinson JD, Young DM (2010) Different shades of bias: Skin tone, implicit racial bias, and judgments of ambiguous evidence. West Virginia Law Review 112: 307–350.
Many commentators and judges have come to accept the changing reality of racial discrimination – discrimination that has largely shifted from overt and intentional to covert and unintentional. Despite this scholarly progress, the dearth of empirical studies testing implicit bias within the legal system is surprising. In an effort to begin filling the empirical research gap, this Article proposes and tests a new hypothesis called Biased Evidence Hypothesis. Biased Evidence Hypothesis posits that when racial stereotypes are activated, jurors automatically and unintentionally evaluate ambiguous trial evidence in racially biased ways. Because racial stereotypes in the legal context often involve stereotypes of African-Americans and other minority group members as aggressive criminals, Biased Evidence Hypothesis, if confirmed, could help explain the continued racial disparities that plague the American criminal justice system.
To test Biased Evidence Hypothesis, we designed an empirical study that tested how mock-jurors judge trial evidence. As part of an “evidence slideshow” in an armed robbery case, we showed half of the study participants a security camera photo of a dark-skinned perpetrator and the other half of the participants an otherwise identical photo of a lighter-skinned perpetrator. We then presented participants with evidence from the trial, and asked them to judge how much each piece of evidence tended to indicate whether the defendant was guilty or not guilty. The results of the study supported Biased Evidence Hypothesis and indicated that participants who saw a photo of a dark- skinned perpetrator judged subsequent evidence as more supportive of a guilty verdict compared to participants who saw a photo of a lighter-skinned perpetrator.
We consider the results of the empirical study not only as part of a discussion implicit racial bias in the legal system, but also as part of an amplification of the Story Model of decision-making. This model, which provides a step-by-step explanation of how jurors make decisions, has yet to consider the potentially pervasive impact of implicit racial bias in decision-making. Using the Story Model as a guide and considering the study results together with other emerging research on implicit bias, we deconstruct the multitude of ways that implicit racial bias can affect jury decision-making.