Researchers from the US have tested mock-juries to see if they react differently to Black and White faces on a computer screen. They are concerned that one of the most important jury instructions – the presumption of innocence (innocent until proven guilty) might actually trigger different responses to faces of different race, potentially biasing trials.

So, what’s the point?

The issue of race in the United States criminal justice system is highly divisive, with The Sentencing Project claiming that ‘racial minorities are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences.’

The numbers they provide certainly show that these claims are true, but the reasons behind them can be complex and numerous: poverty, quality of legal representation and which crimes are pursued and punished more heavily are just a few potential factors.

There is also the obvious issue of racism: the TSP report points to studies that show Blacks and Hispanics are far more likely than Whites to be stopped on the road or searched on the street by police, despite violations in traffic laws and possession of weapons or drugs being similar across all races.

In the courtroom, the idea that someone is presumed to be innocent unless evidence shows them to be guilty beyond all reasonable doubt is one of the cornerstones of many judicial systems across the globe. But the paper’s authors say that previous research has suggested that ‘people implicitly associate Black with guilt (and White with not guilty)’, meaning that racial bias exists from the very start of a trial.

What the researchers wanted to see here is whether ‘priming’ jurors with either a description of a violent crime or an explanation of the ‘innocent until proven guilty’ axiom brought out any racial bias. Specifically, they were comparing jurors’ reactions to Black and White faces, after freshly hearing about the presumption of innocence.

What did they do?

61 mock-jurors, from a range of ethnic backgrounds, were given a lab-monkey-style task: Two faces (one Black, one White) would appear next to each other on a computer screen for about half a second. They would then disappear and a small grey dot would then appear behind where one of the faces was.

The mock-jurors had to click either Left or Right on their keyboards to say which side of the screen the grey dot was on. The researchers measured how fast they responded and compared the average speed of the response when the dot was on the same side as the Black face to when it was on the same side as the White face.

Before this test the mock-jurors were led into a real courtroom and shown a video of a real judge, dressed in judicial robes, issuing pre-trial jury instructions. Four videos of similar length were shown to different groups of mock jurors, which either included or left out presumption of innocence instructions and either included or left out a crime description (assault with a dangerous weapon).

The researchers wanted to see if the explanation of the presumption of innocence or the mention of the crime affected the mock-jurors’ reactions to the Black and White faces.

Did they prove anything?

They showed that jurors who had heard about the presumption of innocence in the judge’s instructions reacted quicker to the grey dot when it appeared behind the Black faces than when behind the White faces. Those who did not hear about the presumption of innocence had similar reaction times for both.

By contrast, those who had heard about the description of the crime showed little difference in reaction times between Black and White. The authors suggest that this means that the presumption of innocence instructions ‘primes attention for Black faces’, meaning that it could unintentionally ‘trigger racial stereotypes’.

So, what does it mean?

This finding is quite alarming. The presumption of innocence is one of the most important tenets of modern law, so to find that potential jurors could be triggered into reacting differently to Black and White people by an explanation of it could be highly problematic.

The tests themselves were not designed to show up any positive or negative bias towards a particular race, just the level of attention people paid to each after being ‘primed’. However, the fact that people do seem to show different reactions to Black and White faces when ‘primed’ with the presumption of innocence instructions but not in other circumstances suggests that there could be a link between people’s concept of guilt/innocence with Black/White as shown in other studies.

This could mean that a rethink in how the presumption of innocence is delivered may be necessary, or even that more thorough screening of jurors might be needed to weed out those who carry racial bias, even if it is subconscious or unintentional.

It should be noted that the sample size was small, resulting in significant errors in the recorded reaction times, so more tests would ideally need to be done to see if the effect is genuine. However, when taken along with other studies that show similar things, it would appear that the researchers may be onto something.

If it is true, then it could mean that justice may be blind, but it isn’t colour-blind.

Original article in PLOS ONE Mar 2014

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Credit: Fayerollinson (Top); B Turner (Middle); ChvhLR10 (Bottom).

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