Potential jurors reporting for jury duty at a trial next month could get a mini-lesson in implicit bias if attorneys with the Lancaster County Public Defender's office get their way.
But the prosecutor in the case argued against the move, which is believed would be the first of its kind in Nebraska.
At a hearing Friday, Deputy Public Defender John Jorgensen asked the court to play an 11-minute video — shown to all prospective jurors in federal courts in Seattle and Tacoma, Washington — to make people think of hidden biases they might be bringing with them into the courtroom.
Jorgensen told District Judge Robert Otte that by the end of his presentation, not only would Otte see the propriety of playing the video and giving the corresponding instructions to the jury in this case, but he also would be convinced it should take place in every case before the court.
About an hour and a half later, Deputy Lancaster County Attorney Charles Byrd wasn't convinced.
He said when courts don't use Nebraska Supreme Court-approved, standardized instructions, "that's how courts get overturned."
"In essence, there's no real reason to reinvent the wheel," Byrd said.
The video at issue is an introduction of sorts to jury duty and features a federal judge, appointed by President Ronald Reagan; a District U.S. Attorney; and the deputy legal director of the American Civil Liberties Union.
"You may have a deep-seated belief that basketball is a better sport than football. You may prefer strawberry to raspberry jam," Jeffery Robinson, of the ACLU, says describing conscious biases. "Today, though, I want to talk to you about unconscious bias. Unconscious bias is different, and it's something we all have simply because we're human."
Jorgensen said, according to social scientists, it's the subtle, personal attitudes people may hold about certain races, genders, nationalities and other characteristics that can affect interactions and decisions.
And it's nothing new, he said.
In June 2016, the Department of Justice announced it would train all its agents and prosecutors to recognize and address implicit bias as part of an ongoing effort to promote fairness and build a "stronger, safer, more just society that all Americans deserve."
"This is a real and tangible thing that has already begun the process of changing how juries are instructed, how the courts interact with the juries and how they go about deciding cases," Jorgensen said.
He said giving the instruction in the case they will try in June — one where a black man is accused of raping a white woman — just tells jurors to be mindful of implicit bias while evaluating the evidence and determining guilt.
Byrd argued that there was nothing to show that using these jury instructions would be effective and no statutory case law that would warrant this type of instruction.
"I think that's where the court needs to begin," he said.
Byrd said if the court does feel these kind of instructions are relevant, his question is, where do you draw the line?
"Other implicit biases could potentially be in a trial," he said.
For example, he said, the way people view fat people versus skinny people, see blondes as ditzy, or people with southern accents like his as rednecks.
"By the court only saying things such as racial bias, gender or age it's as if the court is only (saying) those are the only three you really need to worry about," Byrd said.
He said these types of issues are best addressed in voir dire, the normal process, where attorneys question potential jurors.
"This, in essence, I would submit to you, is a social experiment that should not have occurred in this courtroom," Bryd said. "These issues should be fleshed out at voir dire."
Jorgensen said the normal process can pull out the "bad weeds" to get at those with explicit bias. But implicit bias is different.
He pointed to an online Harvard test, Project Implicit, where 75 percent of those who have taken it have shown an implicit bias favoring European Americans over African-Americans.
"So three-quarters potentially of any jury that comes in is going to be unconsciously in favor of someone other than my client," the lawyer said.
Jorgensen said if we care about fairness, equality and justice, then we need to be concerned about making jurors aware of their potential unconscious biases that they have.
"This is something we need to be concerned about. This is something we need to do something about. This is something that is not going away," he said. "I think we need to be leaders and at the forefront of this issue and do what each of us can do to ensure that fairness, equality and justice prevails."
The judge took the motion under advisement.