ABA Calls For Including Implicit Bias In Jury Instructions

ABA Calls For Including Implicit Bias In Jury Instructions

Marilyn Odendahl for www.theindianalawyer.com

Over opposition from some attorneys including one from Indiana, the American Bar Association has adopted a resolution that calls for judges to instruct jurors on implicit bias.

Resolution 116, which amended two sections of the ABA Principles for Juries and Jury Trials, was approved by the ABA House of Delegates during the annual meeting Aug. 4 through 9 in San Francisco. The second part of the resolution proposed adding a provision to Jury Principle 6 that would require judges to educate jurors on the impact implicit bias can have on the deliberation process. The Indiana State Bar Association discussed implicit bias at its 2015 annual meeting.

According to the ABA Journal, that provision stirred some opposition, including from Indianapolis Bar Association delegate Phil Isenbarger. Rather than making a strict requirement, he advocated for softening the language to say that judges “should consider” giving juries instructions on bias. However the House of Delegates passed the measure.

The ABA’s Commission on the American Jury and the Diversity & Inclusion 360 Commission proposed the implicit instructions. In their report to the delegates, the commissions stated, “Courts must find practical ways of eliminating implicit bias in jurors. Due to the limited opportunities to educate jurors in the court room setting, the importance of a well-crafted specialized jury instruction may be the only available practical option of making jurors aware of implicit bias.”

The ABA Journal reported that Los Angeles Superior Court Judge Ramona See supported the provision. She noted the bench in California has been instructing juries on implicit bias for 19 years and “has shown that it does work.”

Still Isenbarger, partner at Bingham Greenebaum Doll LLP who practices in litigation, raised concerns about the ABA rushing to introduce the subject to juries that judges and lawyers are still studying. While implicit bias instruction is meant to get jurors to stop and think about their decisions, he pointed out in an interview with Indiana Lawyer what he sees as the irony in the association not taking more time to consider this resolution.

The amendment was revised to provide more information to jurors. Isenbarger said the revision helped but he would have like for model instructions to have been included to give guidance to judges.

Isenbarger noted he was speaking for himself and not on behalf of the IndyBar.

Resolution 116 also included an amendment to Principal 2(B) which covers eligibility for jury service. The section was revised to prohibit anyone from being barred from a jury because of marital status, gender identity or gender expression.

“The purpose behind Principle 2 is to make certain that the jury pool and ultimately juries are representative of the communities that they serve,” the commissions wrote in their report. “The broader the participation, the greater will be the public trust and confidence in the decisions made by the jury and the judgements (sic) of the court.”

This provision passed with no opposition. Isenbarger said the amendment will help bring more diversity to the jury box.