Abstract

Racial bias has evolved from the explicit racism of the Jim Crow era to a more subtle and difficult-to-detect form: implicit racial bias. Implicit racial biases exist unconsciously and include negative racial stereotypes and associations. Everyone, including actors in the criminal justice system who believe themselves to be fair, possess these biases. Although inaccessible through introspection, implicit biases can easily be triggered through language. When trials involve Black defendants, prosecutors’ summations increasingly include racial themes that could trigger jurors’ implicit biases, lead to the perpetuation of unfair stereotypes, and contribute to racial injustice and disparate outcomes.

This Note examines and critiques the current approaches that courts and disciplinary authorities use to address implicit racial biases in prosecutorial summations. Recognizing the inadequacy in these current methods, this Note proposes an integrated response, which involves lawyers, jurors, trial courts, and appellate courts. The proposed approach seeks to increase recognition of implicit racial bias use, deter prosecutors from using language that triggers implicit racial biases, and ensure that Black defendants’ equal protection rights are upheld.