In this Article, I claim that judges and jurors unknowingly misremember case facts in racially biased ways. Drawing upon studies from implicit social cognition, human memory research, and legal decisionmaking, I argue that implicit racial biases affect the way judges and jurors encode, store, and recall relevant case facts. I then explain how this phenomenon perpetuates racial bias in case outcomes. To test the hypothesis that judges and jurors misremember case facts in racially biased ways, I conducted an empirical study in which participants were asked to recall facts of stories they had read only minutes earlier. Results of the study confirmed the hypothesis that participants remembered and misremembered legally relevant facts in racially biased ways. For example, participants who read about an African-American story character were significantly more likely to remember aggressive facts from the story than participants who read about a Caucasian story character. Other results indicated that these racial memory biases were not related to explicit racial preferences. The presence and power of implicit memory bias in legal decisionmaking raises concerns about the legal system's ability to achieve social justice. Multifaceted responses, including debiasing techniques and cultural change efforts, are needed. Debiasing techniques, which use interventions such as diversity training to lessen the negative effects of implicit bias, hold promise for at least temporarily reducing the harms of implicit memory bias. The response with the greatest permanent potential, however, requires embracing cultural responsibility for the presence of negative racial stereotypes and coordinating efforts for change.
Justin D. Levinson,
Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering,
57 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol57/iss2/2