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The risk of unconscious bias in court

Some judges in Wyoming and around the country may be influenced in their decision-making by unconscious bias. According to some neuroscience research, people sometimes make decisions under the influence of unconscious assumptions or biases that they might consciously reject. Research has also shown that in the courtroom, judges often make decisions based on intuition rather than rationality. This can lead to defendants from groups who often face discrimination, such as black or gay people, receiving harsher treatment.

This may have been the case for an attorney in Massachusetts and her defendant. A number of counterprotestors were taken into custody at a "straight pride" parade. The judge refused to release those who were charged with nonviolent offenses and who did not have a criminal record despite the district attorney's attempts to do so, which was unusual. When an attorney for one defendant began to talk about precedent and prior decisions, the judge told her stop talking and had her taken into custody as well when she refused. A few hours later, she was released.

Many people argued that the judge went too far in his actions. This might have been because he was unconsciously biased against the woman's client or against the woman herself. Research shows that conscious awareness of potential unconscious and institutional bias may help combat it.

Conscious or unconscious bias may be particularly prevalent in relation to drug crimes. While it might not be possible to prove unconscious bias, an attorney might look at whether a person's rights were respected. For example, there might have been an illegal search and seizure. An attorney may help strategize the best solution. It might be possible to get charges and penalties reduced in exchange for a guilty plea, or the best option might be for the defendant to plead not guilty and go to trial.

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