The Law and Neuroscience: Detecting and Addressing Implicit Bias in Jury Decision-Making

Sponsored by the Diversity, Equity & Inclusion Section

The biological functioning of the human brain drives all that we do, from survival to complex cognitive behaviors. The functioning of the human brain also plays a crucial role in dynamics of the legal system, including the presence of implicit bias in jury decision-making. While implicit bias itself is not a particularly novel concept, the ability of neuroscience to assist in its detection and (potential) resolution in the courtroom as a whole and in jury decision-making in particular is a novel advancement and unique interdisciplinary approach to jurisprudence. Judges and lawyers should consider utilizing neuroscience to detect implicit bias to promote the Sixth Amendment’s guarantee of an impartial jury. While some approaches to blending law and science may be controversial, there are a variety of solutions, some more conservative than others, but all worth exploration out of respect for constitutional principles as well as ethical commitments to plaintiffs and defendants alike.