Tenth Circuit Rejects Defendant’s Argument That Trial Judge Should Have Played Implicit Bias Video to Prospective Jurors

In my new article, “The Constitutional Right to an Implicit Bias Jury Instruction,” I make the argument that a defendant should have the right to have the jury instructed not hold his race against him, just as a defendant has the right to have the jury instructed not to hold his silence against him. In the recent case, United States v. Mercado-Gracia, 2021 WL 786970 (10th Cir. 2021), the Tenth Circuit addressed the related argument of whether a defendant has the right to show an implicit bias video to prospective jurors.

In Mercado-Gracia, Aaron Mercado-Gracia was charged with drug trafficking, conspiring to traffic drugs, and using a firearm in relation to a drug-trafficking offense. After he was convicted, Mercado-Gracia appealed, claiming that the trial judge erred by “denying his request to show an eleven-minute video produced by the federal district court for the Western District of Washington to educate prospective jurors on implicit bias.” (video). The Tenth Circuit disagreed, ruling as follows:

By implicit bias, Mercado-Gracia means “unconscious assumptions that humans make about individuals.”…Mercado-Gracia, who was born in Mexico, contends that “[t]here was a reasonable possibility that implicit bias against Mexican immigrants or nationals would influence a juror because of the political climate and nature of the charge[s]” filed against him….More specifically, Mercado-Gracia cites historical “anti-Mexican sentiment” in the United States and contemporary political rhetoric that suggests “Mexico sends drug dealers to America.”…On that basis, Mercado-Gracia sought to use the video “to educate potential jurors about [such] implicit bias.” (Id. at 653.) The video informs jurors that everyone has unconscious biases, urges jurors to be aware of their own unconscious biases, and encourages jurors, during the trial, to ask themselves if they would reach the same decisions if the defendant, witness, or lawyer was of another age, gender, or race….The video, then, is not designed to identify for removal any specific jurors who hold biases against the defendant but aims instead to make all jurors aware of the possibility of their own subconscious biases.

 

In support of playing this video for the jury venire, Mercado-Gracia cited studies “demonstrat[ing] that implicit bias can be overcome by training, awareness, and active deliberation.”…The Government opposed playing the video, citing legal scholars and other studies suggesting that raising racial bias during voir dire actually risks injecting bias into jury deliberations….

As I note in my article, the rationale given by the State should not water. Why? It is the same rationale rejected by the Supreme Court in finding that (1) a defendant is entitled to a “no adverse inference” instruction on request (Carter v. KentuckyLakeside v. Oregon). Specifically, in Lakeside, the Court rejected the defendant’s argument that a “no adverse inference” instruction could have a boomerang effect and underscore for the jury that he didn’t testify, concluding that

The petitioner’s argument would require indulgence in two very doubtful assumptions: first, that the jurors have not noticed that the defendant did not testify and will not, therefore, draw adverse inferences on their own; second, that the jurors will totally disregard the instruction, and affirmatively give weight to what they have been told not to consider at all.  Federal constitutional law cannot rest on speculative assumptions so dubious as these.

And yet, courts are now denying requests for implicit bias instructions videos by making similar same speculative assumptions, i.e., that (1) the jurors wouldn’t have naturally noticed the defendant’s race; and (2) an implicit bias instruction/video would backfire and cause jurors to decide the case based on race when they otherwise would have been neutral. There’s simply no support for these assumptions, and main study cited by the State found no boomerang effect when an implicit bias instruction was given.

-CM