A Royal Couple v. The Press
In early October of 2019, Prince Harry and his wife, Meghan Markle, took new steps in what has been described as an ongoing battle between the couple and the British Press. In separate filings, the couple sued Associated News, the owners of the Mail on Sunday, along with two other British newspapers, the Sun and the Daily Mirror, over the publication of a private letter to Meghan’s father. In a statement released on the couple’s personal webpage, Prince Harry describes the “ruthless campaign” undertaken by the media against Meghan, and pushes back against “bullying” by the press.
In many ways, this is merely a continuation of the testy relationship Harry and Meghan have had with the press since their relationship began. Almost as soon as they started dating, the press began extensive – often invasive – coverage of the couple, particularly Meghan. After all, she strayed from the traditional mold of a royal bride; she was American, an actress, a divorcee, and – perhaps most notably – a woman of color.
The Washington Post published an article directly before her May 19, 2018 wedding to Harry, dissecting her place in history and how the marriage of an American woman of color into the royal family would be received in a country that had so recently voted to leave the European Union due in part to concerns about immigration.
Indeed, while other members of the royal family have had their struggles with the press, most famously the late Princess Diana, the press coverage of Meghan often contains what Prince Harry called a “racial undertone” that is lacking from coverage of other royals.
If asked, it is likely few British newspapers would agree their coverage of Meghan is different due to her race. But although reporters may not be influenced by conscious, or explicit, biases toward Meghan, it is very possible they are being influenced by unconscious, or implicit, biases that affect how they cover her compared to other members of the royal family.
Implicit Bias in the Courtroom
While this particular drama unfolded in the court of public opinion, our experiences at Litigation Insights show us that unconscious biases like these – whether they’re about race, gender, age, sexual orientation, religion, or anything else – are present and common in real courtrooms every day, and have real effects on how jurors view case facts, arguments, witnesses, attorneys, and each other.
So to help identify when this sneaky type of bias may end up having a damaging impact on your trial, let’s take a deeper look at what implicit bias is, as well as some methods for combating it in the courtroom.
What Is Implicit Bias?
As discussed in our previous blogs regarding bias, individuals who have an explicit bias are aware the bias exists, even if they may be reluctant to admit it. Implicit biases, on the other hand, are unconscious; we’re not even aware of them. And while it may be tempting to think only a small percentage of the population would have implicit biases, in fact everyone has at least some. Further, these biases affect how we all react to the world around us.
This includes how we view evidence and arguments in the courtroom. For example, without realizing it, we may more easily believe the testimony of an older scientist than a younger scientist, simply because of their age. Therefore, it is important to think about the characteristics of your client, witnesses, and experts to try to anticipate how implicit bias might affect your case.
But if implicit biases are unconscious, simply asking someone if they are biased is unlikely to lead to a productive answer. This makes it a tricky problem in courtroom situations, such as voir dire. After all, if you don’t know you have a bias, how can you tell someone else about it? Additionally, how would you know the extent to which that bias might affect your decisions, attitudes, and emotions? While research has found certain groups, such as those who are older and more conservative, showed higher levels of implicit bias than others (Nosek, Smyth, et al., 2007), being a member of a particular group is not a guarantee of the presence or absence of bias.
So, since implicit bias has such a potential to affect how jurors view your case and can be difficult to detect, how do you go about combating it?
How to Combat Implicit Bias in Your Jury
- Aim to increase jury diversity. A diverse jury tends to reduce the chances that implicit bias will affect your case. Including individuals from different races, genders, sexual orientations, religions, and income levels brings more perspectives to the table and increases the likelihood of opposing points of view. And that’s good; the presence of diverse viewpoints has been found to foster more robust debate and to create motivation among jurors to examine the actual facts of the case rather than the demographic characteristics of the parties.
- Understand racial, ethnic, or religious conflicts in the venue. As you work to make your jury more diverse, however, it is important to be aware of the history of the trial venue. Areas with high minority populations and conflict between groups require extra thought to ensure you are including members from different groups and are aware of the attitudes of those groups and how high levels of tension could backfire. For example:
- Within the last decade, St. Louis, Missouri has experienced heightened tensions between their residents of different races. As such, it is important to be aware of the concerns of members of different racial groups and how these tensions may show up when members of different racial groups interact in the jury room.
- With the start of the War on Terror, Muslim communities in the United States experienced increased discrimination. As such, in areas with growing Muslim communities, such as Paterson, New Jersey, it is important to be aware of what attitudes other jurors might bring in related to the Muslim community.
- Finally, areas with large immigrant populations, such as Los Angeles, California, are more likely to have a diverse initial jury pool. However, a more diverse population also brings the possibility of increased tension, particularly given the current public debate about immigration in the United States.
- Educate the jury. In some jurisdictions, judges have begun reading instructions aimed at reducing implicit bias by educating jurors to its presence. If you can get a judge to read similar instructions, this may decrease the extent to which jurors rely on implicit bias in their judgements of the parties.
- Be inclusive in your presentation. It’s not enough simply to choose a diverse jury. You also need to think about how you can communicate effectively with people from different backgrounds. Think about the common examples you use and whether those will make sense to the whole jury. Some phrases, stories, or analogies you may consider to be universally understood, like a Shakespeare reference, may not make sense to those with different cultural backgrounds and differing cultural touchstones.
- Diversify the trial team. Just as your jury can have implicit biases, so too can your trial team. Therefore, it is just as important to include a diverse array of backgrounds. This will allow your team to consider the case from multiple view points and can help decrease the likelihood of failing to consider how your case will resonate with members of different demographic groups.
Whether in the larger court of public opinion with Meghan Markle and Prince Harry’s relationship with the press, or in the smaller arena of the courtroom, the subtle intrusion of implicit bias has the potential to affect people’s attitudes, beliefs, and decisions. But by being aware of the problems it poses, we can become better at identifying it, educating jurors about it, and utilizing techniques to mitigate its damaging effects in the courtroom.
By: Katrina Cook, Ph.D. – Consultant
Nosek, B. A., Smyth, F. L., Hansen, J. J., Devos, T., Lindner, N. M., Ranganath, K. A., & Banaji, M. R. (2007). Pervasiveness and correlates of implicit attitudes and stereotypes. European Review of Social Psychology, 18(1), 36-88.