Bias

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The term bias refers to the tendency of a person to favor one thing, idea, or person over another. In a legal context, bias can lead an individual, such as a judge or juror, to treat someone unfairly, in spite of the fact that hearings and trials are designed to be unbiased assessments of the facts of a case. Bias may also affect such issues as applications for jobs or entry into the country, and recruitment of individuals for other purposes. To explore this concept, consider the following bias definition.

Definition of Bias

Noun

  1. A tendency, opinion, or inclination that is preconceived or unreasoned
  2. A predisposition or preconceived opinion that bars impartial evaluation of facts
  3. A prejudice

Origin

1520-1530       Middle French  biais

What is Bias

Bias is an unfair act, policy, evaluation, or decision that comes as a result of certain traits. In the legal system, a judge or jury is supposed to make unbiased decisions based on fair and impartial consideration of the facts and law. Should a judge or juror have a preconceived opinion about a party to a legal action, or about any of the issues, they may be unable to render a fair and impartial decision. Even in a case in which the jurors have been chosen because none of them have a prior opinion, the judge’s bias may prevent him from fairly overseeing the trial.

Removing a Biased Judge

Impartiality is the cornerstone of the legal system in the U.S., as both civil and criminal matters fill the nation’s courtrooms on a daily basis. Should a matter go before the court in which the judge has some connection or preconceived opinion, the issue of impartiality comes into question. While a judge may feel he can rule fairly, just the appearance of bias could jeopardize the case, giving rise to an appeal on the final decision. In such a matter, the judge may recuse himself, which is to excuse or remove himself, from the case, handing it over to another judge.

In the event a judge suspected of having a bias does not recuse himself, a party may seek to have him disqualified from the case by submitting a motion to recuse or disqualify the judge. In doing so, the party must have good reason to ask that the judge be disqualified. These reasons are referred to as “grounds for recusal.” Most motions to recuse a judge are based on the judge’s bias against one party, or favorable opinion of another.

There are other circumstances in which a party may ask to have a judge removed from a case. These include such issues as:

  • The judge has experience or a background relating to the parties or issue at hand
  • The judge has personal knowledge about the facts of the case, or about either of the parties
  • The judge has engaged in ex parte communications with anyone concerning the case
  • The judge has made comments, engaged in conduct, or made prior rulings that seem to be biased against, or favor, either party

Disqualification for Cause

In some jurisdictions, a judge can only be recused “for cause.” This means that the party wishing to have the judge removed must have good reason, such as bias. Other jurisdictions, however, allow a party to have a judge disqualified or removed from the case on a “peremptory” basis. This means that a party can ask for the removal of the judge without presenting any specific reason. In such jurisdictions, such a “peremptory challenge” is a one-time opportunity, so as not to allow parties to “judge shop,” having judges recused until they find one they like.

Example Peremptory Disqualification

Robert’s divorce is set to go before Judge Hardnose, who is known to favor women in contentious divorce cases. Robert’s attorney recommends they have the case transferred to another judge, though there is no evidence he has a biased opinion in Robert’s case. To help ensure Robert receives an unbiased and fair hearing, his attorney files a peremptory challenge, recusing Judge Hardnose. In this example of bias disqualification, the case is moved to Judge Fairness’s court.

Bias in Jury Selection

Jury selection is a process by which attorneys for all parties to the case question potential jurors for the purpose of weeding out those who may have some type of bias. While each party may dismiss an unlimited number of potential jurors for good cause, each party is given a limited number of peremptory challenges, allowing them to dismiss potential jurors for no stated reason. Still, dismissing potential jurors for discriminatory reasons is illegal, and a pattern of such dismissals may bring trouble, especially for a prosecutor engaging in such dismissals.

Bias in jury selection may occur when potential jurors are dismissed due to race, ethnicity, gender, or other discriminatory purposes. Because the dismissing party does not state a reason for peremptory dismissals, the other party would need to discern a pattern in such dismissals. For instance, if all of the prosecutor’s peremptory dismissals are of jurors of the defendant’s minority race, the defendant’s attorney may make a claim of discrimination to the judge. If this happens, the prosecutor would likely be asked to provide a reason that is non-discriminatory for dismissing each of those jurors.

There are many reasons, however, that a party may feel a juror is biased, making it fairly easy to state a legitimate purpose. Other issues that may be felt to cloud a juror’s opinion include:

  • Having had a negative experience with the criminal justice system
  • Having been a victim of a crime similar to the issue at trial
  • Having been exposed to pretrial publicity
  • Having a lack of respect for authority
  • Being very immature or having a lack of life experience

Example of Bias in Jury Selection

Juan has been arrested and charged with the armed robbery committed against a mom & pop grocery store in his mostly Hispanic neighborhood. Juan had previously been in trouble as a juvenile, but has tried to make better decisions as an adult. He vehemently denies robbing the store. The media takes up Juan’s story, alluding to prejudice preventing the police from undertaking a fair and complete investigation.

During jury selection for Juan’s trial, a total of eight Hispanic people are in the jury pool – and each one of them is systematically dismissed by the prosecutor on peremptory challenge. In other words, he did not provide any reason for dismissing the Hispanic jurors. The resulting panel of nearly all-white jurors convicts Juan. In this example of bias, the issue of whether Juan was guilty is not the question, but whether he received a fair and unbiased trial by a jury chosen from a cross-selection of the community.

Bias Example Taken to the Supreme Court

In 1986, the U.S. Supreme Court agreed to hear an appeal on a case in which a criminal defendant claimed the prosecutor had committed racial bias in jury selection. James Kirkland Batson, a black man, was charged with burglary and receipt of stolen goods. During jury selection, the prosecutor used his peremptory challenges to dismiss six potential jurors, including all four black people in the jury pool. Batson’s defense attorney made a motion to discharge the entire jury on the grounds that the prosecutor had violated the defendant’s Sixth Amendment right to an impartial jury, and his Fourteenth Amendment right to equal protection under the law. The judge denied the motion, and Batson was eventually convicted by the all-white jury.

Batson appealed the decision to the Kentucky Supreme Court, which affirmed the conviction, ruling that Batson would have needed to prove a systematic exclusion of a protected group from the panel of prospective jurors – not just in his case, but in general. Batson then took his case to the U.S. Supreme Court, which agreed to hear the case to determine whether his right to trial by an impartial jury taken from a cross section of the community had been violated.

The High Court overturned the Kentucky Supreme Court’s ruling, which required the defendant to prove an overall systematic bias. The landmark Supreme Court ruling in Batson v. Kentucky lowered the burden of proof in claims of bias in jury selection, stating that a defendant need only prove the disqualification of jurors based on some bias in his own case. In the written 7-2 decision, Justice Lewis Powell wrote:

“The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire [jury pool] members of the defendant’s race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.”

In its Batson ruling, the Court also held that:

  • The peremptory challenge is an important tool in trial procedures.
  • A black defendant is denied equal protection under the law when the state puts him on trial before a jury from which members of his own race have been purposely eliminated or excluded.
  • While a defendant has no right to a jury composed of people of his own race, whether in whole or in part, it is unconstitutional for the state to exclude members of the defendant’s race during jury selection on the basis of race.

Related Legal Terms and Issues

  • Prosecutor – A government attorney who presents the state’s case against the defendant in a criminal prosecution.
  • Venireman – A person called to jury service by official summons.