In 2007, Ervine Davenport was driving home from a social gathering with Annette White in the passenger seat. During the car ride, an altercation occurred in which Davenport allegedly assaulted and killed White, resulting in Davenport’s being charged with first-degree murder. During his trial, Davenport sat at the defense table with shackles on one of his hands, his waist, and ankles. He was subsequently convicted but appealed on the basis that viewing his shackles biased the jury’s verdict. During the appellate process, the trial court polled the jurors for possible bias, finding that seven of the 12 jurors did not remember the shackles, and none reported that they affected their decision. The Supreme Court of the United States (SCOTUS) recently examined this case, siding with the Michigan Court of Appeals and against Davenport. Specifically, SCOTUS agreed with the appellate court’s application of relevant case law and subsequent conclusion that the shackling was harmless “because of the ‘overwhelmin[g]’ evidence against him, and because jurors testified that his shackling did not affect their verdict.”
The court’s inquiry regarding whether viewing the defendant in shackles during trial biased the jury raises some interesting empirical questions: Can jurors’ legal judgments be affected by implicit (unconscious) biases initiated by viewing observable characteristics of the defendant? Moreover, can we trust jurors’ reassurances that they are unaffected by such plainly visible and potentially biasing characteristics?
Although social psychologists have extensively studied the concept of implicit bias, less work has directly examined jurors’ implicit biases. Nevertheless, available research evinces the existence of biases outside of jurors’ awareness (Roberts, A., Criminal Juries in the 21st Century, Ch. 5, 2018opens in new window). For example, social psychological research has consistently demonstrated that participants are impacted by experimental stimuli despite denying their influence upon explicit inquiry. Research on schemas and stereotypes substantiates the potential biasing effects of defendant characteristics on juror decision-making, and that research routinely finds that jurors view defendants who are more consistent (versus inconsistent) with stereotypical expectations as more likely to be guilty (McKimmie, B. M., et al., Psychology, Public Policy, and Law, Vol. 19, No. 3, 2013opens in new window; Sorby, M., & Kehn, A., Psychiatry, Psychology and Law, Vol. 28, No. 5, 2021opens in new window).
Additionally, a juror’s ability to assure the court of their unbiased nature initially assumes that they are aware of their own biases. Research finds this assumption can be tenuous; that is, such biases, by their very nature, are unconscious, therefore rendering them difficult to assess (Nisbett, R. E., & Wilson, T. D., Psychological Review, Vol. 84, No. 3, 1977opens in new window). And even if jurors are aware of their potential biases, there is no guarantee that they will inform the court of their bias. Many jurors want to promote the veneer of impartiality, the importance of which is repeatedly instructed. Therefore, jurors may be unwilling or unable to admit that their biases have seeped into their legal judgments.
What can be done in cases where the defendant’s characteristics may have irreparably, unduly, and unknowingly biased jurors? There do not appear to be any easy answers. Reforms such as jury orientation and instructions about implicit bias have been suggested and, in some cases, implemented, yet perhaps it is best to remove as many superfluous influences as possible that could bias the jurors before they enter the courtroom.
