In part 1 of this topic, we discussed the concept of polarization and mortality salience. In part 2 we examine ingroup favoritism and outgroup bias. 

Ingroup Favoritism and Outgroup Bias

Though it is challenging to precisely measure the extent of bias against Asian-Americans and Asian-based entities as a result of the COVID-19 crisis, there are plenty of case studies and anecdotal reports highlighting increased instances of prejudice and discrimination against those of Asian descent. This bias will likely persist throughout at least the next several months, and perhaps for years. This can inappropriately influence jurors’ perceptions of any individual or party of Asian descent (including witnesses and attorneys) as well as their perceptions of Asian corporations. 

The trend towards increased prejudice and discrimination against individuals of Asian descent is highly disturbing in and of itself. Unfortunately, prior research indicates that the COVID-19 crisis may lead to increased prejudice and discrimination against a variety of minority groups and other “outgroups.” As previously discussed, individuals are motivated to protect and defend their worldview during times of fear, uncertainty, and distress. This leads to stronger identification with one’s “ingroup” and increased distrust of outgroup members. As a basic example, psychological theory and research results predict that European-Americans will place a greater importance on their heritage and background during this time and increasingly bond and identify with others who share that heritage, while becoming more judgmental of those with different backgrounds. Similarly, African-Americans may feel a stronger bond with other African-Americans during this time, and become more distrustful of others with different backgrounds and experiences. It is important to note that these are not guaranteed effects and each person is different. In addition, most individuals do not consciously decide to discriminate against others in times of crisis. Yet, there is a vast well-executed body of research on this topic which should be considered by those interested in how the COVID-19 crisis may impact jurors’ judgments and decision-making.

Ethnic background provides an easy example of how tendencies towards ingroup favoritism and outgroup bias may operate among jurors, but this is not the only identity that jurors use to categorize themselves. Due to the psychological impacts of the COVID-19 crisis, “blue collar” jurors may increasingly identify with other blue collar jurors and be more suspect of traditional “white collar” jurors, and vice versa. Christian jurors may be more judgmental of a Jewish or Muslim witness. Essentially, psychological theory and research predicts that many jurors may be increasingly judgmental of individuals who do not share their ethnicity, background, or beliefs; jurors also may have more positive perceptions of individuals who appear similar to them.

The literature examining people’s reactions to death anxiety, fear, stress, uncertainty, etc. already illustrates increased tendencies towards ingroup favoritism and outgroup bias. Research examining fear of contagion add to our understanding of the motivations for these behaviors. Such studies have shown that when individuals fear contagion, they become less tolerant of outgroup members and more accepting of ingroup members. This likely occurs because outgroup members are perceived as more likely to be carrying the disease and more likely to infect others. Conversely, close ingroup members are largely perceived as “safe.” [1]

It is rare for jurors to acknowledge politically incorrect biases during either open or closed voir dire; if they do, it is usually a strategic attempt to avoid serving. Further, it is extremely challenging for counsel to detect “implicit biases” – which jurors are often unaware of and operate at the unconscious or subconscious level – during voir dire. There are highly specialized and case-specific inquiries that CSI’s Litigation Consultants can craft to reveal which jurors will likely be biased against your side. However, discussing the potential for bias during voir dire can be helpful in minimizing the effects of juror prejudices and stereotypes. For example, defense counsel may acknowledge that “I represent a company that is based in (Asian country). Is there anyone here who is uncomfortable with that fact, or just has negative feelings towards Asian companies or individuals of Asian descent?” Even if this inquiry is met with silence, jurors are now more cognizant of the potential for bias. Many may make increased efforts to view the defense case more objectively and to appear unbiased and “politically correct” during deliberations. Counsel may then follow up with a directive such as “I asked that question because I strongly believe in the right to a fair trial, and I’m sure you all do too. Can I get a commitment from each one of you that my clients’ ethnicity will have absolutely no effect on how you interpret the evidence and on your decision-making in this matter?”