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Unconscious Bias: A Reality for Judges, Forensic Investigators and Lawyers

By Todd Hutchison, Marais Dekker and Oliver Schoeman.


Beingbias’ refers to having a tendency, inclination or prejudice either in favour for or against something, someone, some group or some organisation. Areas of bias can lead to unlawful discrimination based on alignment to race, gender or gender identity, ethnicity or migration status, religion, weight, height or age, union association, family responsibility or pregnancy, sexual orientation, marital or relationship status, disability or physical appearance.


The term ‘unconscious bias’ represents the accumulated learned stereotypes that are unintentional, automatic and heavily influencing of one’s thinking patterns that leads to impacting their judgements and behaviour. These biases are deemed conscious when the person becomes aware of their influences.


In the book ‘Strangers to Ourselves: Discovering the Adaptive Unconscious’ [1], Timothy Wilson spoke of ‘mental shortcuts’ and notes that the conscious mind processes around 40 pieces of information per second, compared to the unconscious mind that processes an estimated 11M pieces of information per second. This hints towards the significance of the unconscious mind and the complexity of its information processing abilities.


The determinants of an individual’s bias is based on deeply ingrained values and beliefs from past experiences and exposures that can be hard to manage. It is also known as ‘implicit bias’ and it causes dominating suggestions to conscious thought.


These biases relate to key values and beliefs that are generally developed through cultural norms, religious practices, influences from key people such as parents, coaches and teachers, and often more importantly, friends and peers, or media-based influences. They are shaped over time by the individual’s life observations and experiences and the meanings they give to them. This is why two people having grown up in the same environment can take different meanings from situations they were both exposed to and often resulting in either negative or position thinking outcomes.


A child repeatedly being told they are no good at a skill may conclude that they are incompetent, whereas another person in the same situation may take the view that they will prove the person wrong and they become highly competent at that same skill. This is become a person’s thinking impacts their behaviours and actions that gives them their results.

This results in all people being influenced by unconscious bias that can impact their work. Forensic investigators, judges and other legal and law enforcement personnel strive to act in an independent, impartial and objective manner to be effective in their roles.

Studies have consistently shown that judges like all humans do suffer from conscious bias. A Cornell Law publication study [2] on recognising the existence of implicit biases in judges concluded that they these biases can affect their judgment and sentencing periods, unless they become aware of a specific need to better monitor their decisions for such biases.


US Judge Bernice B. Donald [3] acknowledged, “we view our job functions through the lens of our experiences, and all of us are impacted by biases and stereotypes and other cognitive functions that enable us to take shortcuts in what we do,”


This means that any biases can risk their independence in their assumptions and decisions that may cause the individual looking from a personal lens acting with discrimination or unfair judgement.

This can also have significant impacts on an investigator who starts with an early conclusion that a particular person is guilty that can make them make poor continuing judgements or miss key contradictory evidence.

They tend to look for evidence to support their thinking over more broad evidence that could consider wider possibilities.


An investigator that works methodologically, understands the importance of developing working theories (hypotheses) from initial observations and reports that can be tested and falsified, to guide investigation work. Investigation theories must also be aligned with the legal or policy framework of the organisation or jurisdiction, and the standards of proof required in terms of the relevant procedure.


In the case of a court or any other formal procedure of which the outcome is a binding determination or award, a judge’s or the presiding official’s biases can heavily influence their decisions and level of harshness to their sentencing. In the appeals process in a court system, the inclusion of an odd number of multiple judges aims to balance any bias out of any one individual.


The same effect is being created in ‘dispute adjudication boards’ often consisting of a wider level of related experts, such as a scientist, engineer, medical practitioner and a lawyer depending on the case. Administrative tribunals often act as an internal appeal mechanism following administrative commission awards, also tend to consist of three or more members acting as a panel. Even historic authorative structures often relied on councils, boards or juries to reach unanimous or majority consent decision on findings of guilt in matters with serious legal consequences.

The generality of the observation that appeal forums consist of multiple presiding officers, suggest that serious matters of law should not be left to the potential prejudice of a single person.


This of course does not eliminate biases when multiple persons make important decisions together, as shared particular biases are likely to amplify that bias where they may be a member of the same demographic, such as culture and up-bringing.


To the person who will be subjected to a disciplinary process, who may be the victim of bias, the question arises as to how the probability of a fair outcome can be increased. In internal disciplinary processes, it is even more important and difficult for charged employees to win against perceived bias, if the employer themselves solely briefed the investigator, the prosecutor, and the presiding officer. In cases of sexual harassment in organisations where a historic culture of not calling out such behaviour and ignoring its existence of it or its importance. Such behaviours can become the norm and harassment-based practices unwillingly continue as a part of the fabric of the organisational culture until a particular victim attempts to have a greater voice. Many inappropriate workplace practices become accepted as norms, not to be highlighted, discussed or made to be important. They exist as informally ignored, and victims fearing of being ostracised, sidelined or excluded for consideration for future roles or opportunities.

More overt examples apply where biases may influence basic workplace activities like recruitment. As an example, ‘surname bias’ is a generalisation that a person’s surname implies that they may be a particular race, ethnicity, that they speak a certain language or even have some inherited cultural influences. Yet the person may have gained the name through marriage.


A study of job applicants found applications having an implied white person’s surname were 74% more likely to have success than applicants from ethnic minorities [4]. If the ethnic applications were to have a fair chance, it is likely that the application would need to be blindly assessed, meaning that the names would have had to been removed so the Surname Bias could not play a part.


Becoming conscious of the different types of bias can help to identify them when in practice, however there has been studies identifying over 150 different types of biases.[5] Some of the most common biases include:

  • Halo Effect - this is a generalisation of one trait that is found to be positive in a person, that somehow gets extended to a belief that that same person must have positive traits in other areas. This is where a positive initial engagement may make them look more innocent;

  • Horns Effect - this is a generalisation that is opposite to the Halo Effect, where we take a negative feature about a person that clouds our view of other things they will likely not be good at. This becomes problematic if a person is judged early as guilty and then seen as that thereafter;

  • Beauty Bias - this is a generalisation where we may favour an attractive person or think they are more successful. Appearances are important in most cultures and found to reflect on our professionalism and self-awareness;

  • Gender Bias - this is a generalisation where we tend to believe a particular gender is better at a specific task than a different gender. This is believed to come from genders tending to have very separate social roles in earlier decades;

  • Similarity Bias (Affinity Bias) - this is a generalisation where we are influenced by a person’s association to a specific employer, university, group or social circle;

  • Confirmation Bias - this is a process where we seek confirmation of our initial thoughts where we aim to confirm our beliefs and we reject any information to the contrary. We are basically trying to find evidence that backs up our own opinion; and

  • Stereotyping – this is a tendency to expect certain characteristics as they belong to a country, culture or group.

Where these biases have an impact on the workplace can be numerous, but generally impact:

  1. Perception - how people see and perceive reality;

  2. Attitude - how people react towards certain people;

  3. Behaviours - how receptive or friendly a person is towards certain people;

  4. Selection - how a person views a job applicant and a person for succession planning;

  5. Feedback - how a person presents feedbacks to others;

  6. Attention - which focal point a person will pay most attention to;

  7. Listening - how much a person actively listens to what certain people will say;

  8. Supporting - how much time a person takes to mentor, coach or support another;

  9. Evaluating - how a person evaluates a colleague or service, including in a recruitment or promotion situation;

  10. Sharing - how much a person discloses or shares with another;

  11. Resourcing - how much resources or support a person gives;

  12. Micro-affirmations - how much or how little people comfort certain other people in specific situations; and

  13. Delegation - how much a person is comfortable to delegate and empower others.

Understanding these influences and the biases provide insights to help those working in the legal profession. Through critical self-observation or reflection, self-regulation is possible, which can include looking for inconsistencies in one’s own speech and behaviour, and sensitising one’s perceptions to others’ responses.


Deploying workplace practices of intentional intervention actions can lead to the identification, consideration and purposeful modification of policies, processes and practices.


Proactively learning about other races, cultures, religions, history and anthropology can help, however seeking diversity in formulating teams and employing colleagues can give exposure to differences firsthand.


Using blind assessments in recruitment, written statements and document reviews provides a process for removing identifying information, such as a name, to make the author or subject under review unidentifiable so biases cannot be easily triggered.

It can also be highlighted by working more effective as a team, such as encouraging colleagues to point out biases, cconsciously acknowledging group and individual differences to take a more multicultural approach, and routinely checking thought processes and decisions for possible bias to adopt a thoughtful,

deliberative, and self-awareness state for inspecting how one’s own decisions are made.


Whether through self-regulation or in assessing others’ biases, examining the consistency of decisions and practices and the intent behind such actions can highlight influencing biases. It is when colleagues are respected for the individual value they bring, and the positives in celebrating differences are highlighted, that an organisation can create an atmosphere to embrace diversity.


Notes

[1] Wilson, T (2004) Strangers to Ourselves: Discovering the Adaptive Unconscious, Belknap Press: An Imprint of Harvard University Press.

[2] Rachlinski, Jeffrey J.; Johnson, Sheri; Wistrich, Andrew J.; and Guthrie, Chris, "Does Unconscious Racial Bias Affect Trial Judges?" (2009). Cornell Law Faculty Publications. Paper 786, URL http://scholarship.law.cornell.edu/facpub/786.

[3] Carter, T (2016) Implicit Bias is a Challenge even for Judges, ABA Journal URL https://www.abajournal.com/news/article/implicit_bias_is_a_challenge_even_for_judges

[4] Cameron, D (2015) Job applicants with ethnic minority sounding names are less likely to be called for interview, UK’s Independent Fact Checking Charity, URL: https://fullfact.org/economy/job-applicants-ethnic-minority-sounding-names-are-less-likely-be-called-interview/.

[5] ANU (2015). 'Unconscious bias', Australian National University. URL: https://services.anu.edu.au/files/guidance Unconscious%20Bias_0.pdf

About the Authors

Adjunct Associate Professor Todd Hutchison (L) is an executive of Australian law firm Balfour Meagher, a police-licensed investigator and digital forensic specialist with Forensics Australia, and the Chairman of the International Institute of Legal Project Management.

Marais Dekker (M) leads Bind Africa's Transaction Risk Management Services Research & Development Team as Executive Director, focusing on industry specific process modelling and system design to improve control over contractual performance.

Oliver Schoeman (R) is Corporate Legal Counsel at Jenny Internet in South Africa. Previously an Advocate of the Pretoria Bar and director at Argumentum Legal Project Management, specialising in Consumer Law, Construction Law, Commercial and Criminal Litigation.

#ToddHutchison #MaraisDekker #OliverSchoeman #bias #legal #diversity

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