A Fair and Implicitly Impartial Jury: An Argument for Administering the Implicit Association Test During Voir Dire

Dale K. Larson, University of California - Los Angeles

Abstract

While many refer to jury selection as a science, others—perhaps more accurately—liken the process to voodoo. The jury consulting industry has exploded over the last thirty years, with many attorneys paying large amounts for voir dire for erratic and unpredictable results and a general inability to detect bias accurately in potential jurors. One explanation for these poor results, even when using the latest findings in the scientific jury selection field, is that the tools currently available to attorneys and jury consultants give us only a partial picture of the individuals in question. Currently, voir dire consists of oral questioning and the occasional written questionnaires. These simple tools measure only the explicitly held and often filtered beliefs of the jurors, but we now know that our behavior and decisionmaking are influenced by more than our explicitly held and publically stated beliefs. To a get a more accurate picture of an individual’s potential biases and a more effective predictor of future behavior and decisionmaking, our voir dire toolbox must be expanded to include measurements of implicit attitudes and implicit stereotypes. This Article examines the impact of implicit bias within the context of criminal trials in federal courts where the defendant’s race is different from that of some jurors, and advocates for the use of the Implicit Association Test (IAT) during voir dire to fill out the currently insufficient tool box available to attorneys and judges.