The Law Office of Robert D. Anderson, PLLCFormer Chief Prosecutor Of Loudoun County
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Implicit racial bias may affect court decisions

Criminal defendants in Virginia and across the country often have to deal with the effects of racial bias in the courtroom. While outright bias and racist remarks may be far less common than they were in the past, implicit bias and stereotypes continue to play a role in bail decisions, pre-trial detention, sentencing and other serious issues. One of the key factors distinguishing implicit bias is that it is unspoken and unrecognized rather than a conscious act of racial discrimination.

Juries and even judges may view defendants and witnesses differently based on racial stereotypes and unspoken social beliefs about large groups of the population. Therefore, defendants of color could face serious obstacles in seeking a truly fair trial. Some advocates advise that open discussion of race and bias may provide one mechanism to help defendants counter this type of bias in the courtroom. Criminal defense lawyers might do this in several ways, including raising motions to scrutinize police conduct for racial profiling or challenge the unreliability of cross-racial witness identification.

In addition, during jury selection, lawyers may provide educational information for future jurors about race, implicit bias and how they can affect decisions in the courtroom. During the trial itself, lawyers can request jury instructions that call attention to the potential of implicit bias or make arguments that distinguish their client as an individual, challenging the sort of unconscious stereotyping that can fuel implicit bias.

When someone faces criminal charges, they may be threatened with a loss of liberty, a felony criminal record or costly fines. Unfortunately, the potential for racial discrimination could make this context even more frightening. A criminal defense attorney may help to protect a defendant's rights and work to prevent a conviction.

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