By Isabella Meltzer, Kathy Zhang and Julia Lim
The visage of Lady Justice guards the entrances of countless courtrooms around the world. But what if we were to replace Lady Justice’s blindfold with a virtual reality headset?
The legal system strives to uphold the core principles of the rule of law, procedural fairness and the presumption of innocence – all of which heavily rely upon the fair administration of justice by judges and juries in the courtroom. However, as the recent Black Lives Matter and Aboriginal Deaths in Custody protests have highlighted, prejudice against minorities has prevented these principles from being adhered to in legal systems around the world.
The impact of bias in courtrooms
The automatic, subconscious associations which judges and juries bring into the courtroom in particular pose a real danger to these fundamental principles. In Australia, the overrepresentation of incarcerated Aboriginal and Torres Strait Islander people points to the biases of the fact-finders who placed them there. In addition to its contemporary relevance, bias in the courtroom impacts the entirety of the legal profession. Barristers must account for the concerning possibility that their clients may not be judged on the true merits of their case. While the Australian judiciary has made some attempts to mitigate bias in the courtroom, exemplified in the High Court upholding of the apprehension of bias rule, prejudice undoubtedly remains prominent in the everyday administration of justice.
As scholar Natalie Salmanowitz observed in 2018, defendants of colour are considered guilty more often than their white counterparts. Studies have shown that implicit bias particularly comes into play in cases where race is not a salient issue and merely involves parties of different races. In these cases, jurors’ judgements tend to be skewed against black defendants, whereas in cases that are racially charged, jurors’ judgments tend to be unaffected by race. Thus, when race is introduced in a subtle manner, people are less vigilant in monitoring potential prejudices.
Bias in courtrooms also have long lasting, detrimental impacts in perpetuating cycles of disadvantage. Those who are disadvantaged before the jury are more likely to go to prison than those of more advantaged backgrounds committing the same offence, as those of the latter category have the means for better legal and financial support. According to Fitzgerald in 2009, there has been a 48% increase in the number of incarcerated Indigenous Australians over the last 10 years, the reason being the severity of treatment by the criminal justice system. In a 2017 submission about the incarceration rates of Indigenous Australians, the NSW Bar Association found that the issue was most prominent in incarceration and sentencing decisions. Indeed, Aboriginal people are refused bail more often than non-Indigenous Australians, receive prison sentences more often and are being sentenced for longer.
How can justice be served equally and impartially when the inherent biases of the judiciary start to tip the scales? In today’s modern world, where technology is increasingly ever-present, perhaps our solution lies through technological innovations.
A potential solution: virtual reality
Virtual reality (VR) poses a potential solution in effectively mitigating bias in courtrooms. By wearing a VR headset for a period of time as short as five minutes, the user can enter a virtual world where they embody an avatar from another racial group. The user can truly feel like they are in another body as the participant’s actual limbs, tracked and synchronised with the simulation, move in tandem with the avatar’s limbs. VR technology has also progressed beyond being purely a visual experience – VR can now also include tactile stimulation which is applied to the user’s body in sync with the simulation. Combined, these factors generate the body ownership illusion, a psychological effect where someone perceives to own a part of a body or an entire body that is not their own. Effectively, such an immersive experience blurs the distinction between the ‘self’ and the ‘other’, which in turn can lessen the potency of the negative associations we subconsciously attribute to other racial groups.
In a 2013 investigation conducted by Peck et al, researchers randomly assigned participants to one of three avatars - light-skinned, dark-skinned, and purple-skinned. They found that the experience of virtually embodying an avatar with darker skin led to a statistically significant decrease in Implicit Association Test (IAT) scores – a key measure of implicit attitudes and beliefs in decision-making, which indicated that implicit biases played a lesser role in influencing the subject’s attitudes towards members of different races. In contrast, the IAT values of subjects who entered a light-skinned or purple-skinned avatar showed little change.
This same theory was applied years later in 2018 by Natalie Salmanowitz, specifically to the context of jury decision-making. Before and after experiencing the VR immersion experience, participants were asked to evaluate ambiguous evidence in hypothetical legal cases in addition to taking the IAT test. Here, researchers not only also saw a decrease in IAT scores, but participants also evaluated ambiguous evidence more critically and tended to judge evidence as being less indicative of guilt.
Although Salmanowitz’s research seems to positively affirm the effectiveness of VR immersion experiences in reducing implicit biases, it must be noted that her research was conducted in mock trial scenarios with mock legal decisions. These scenarios involved dichotomous verdicts – guilty or not guilty – which may be incapable of capturing the intricacies of a juror’s decision-making process. By recognising the constrained perspective of Salmanowitz’s research, it may be questioned whether or not these experiments can actually model and analyse complex implicit racial biases in courtrooms. However, as legal decisions are difficult or near impossible to simulate, whether or not the impact of VR has been exaggerated through inaccurate experiment design and modelling is an issue that can only be resolved when VR is applied to an actual courtroom.
Furthermore, VR’s success in lowering IAT scores is a testament to its fundamental ability to reduce implicit racial biases. The success of utilising VR experiences in other fields, such as improving emotion recognition by domestic violence offenders and increasing empathetic sentiments towards the homeless, shows the adaptability of VR technology in a range of different scenarios. Thus, even though this technology is yet to be applied in an actual courtroom, its performance in other experiments is promising, as it shows that VR can be easily improved and tailored to new roles.
Would the legal profession be accepting of VR technology?
If VR experiences were to be incorporated into NSW court processes, the legal profession’s response to implementation would need to be considered before doing so. In his 1998 speech, Justice Kirby attributed historical resistance towards new technologies to the “psychological barrier which must be breached to raise awareness of judges and lawyers of the technological engines of change”.
However, Justice Kirby also noted at the time that the High Court of Australia had stood “foremost in its embrace” of new technologies, such as the use of audio-visual links for special leave hearings from 1987. Thus, the Judiciary embraced the integration of law and technology as far back as over thirty years ago. Chief Justice Allsop recently noted in a 2019 lecture at the University of Queensland that it is indeed the courts’ responsibility as “core public institutions…to take a leading role in the responsible implementation of technology in the law and in legal practice”, and it has therefore most likely been instrumental in the Australian legal system’s transition towards technological change that the nation’s highest court has been amenable to innovation.
It has indeed become evident in recent years that the drive to integrate technology into existing processes has grown within all tiers of the Australian legal system. For example, within NSW, the impetus has been embodied by the development of committees which aim to advise legal practitioners and facilitate the exploration of new legal technologies, such as the Law Society of NSW’s Legal Technology Committee and the Innovation & Technology Committee within the NSW Bar Association. Therefore, the facilitation of further integration of law and technology appears promising.
In an increasingly technological world and amidst exponential public concern over bias hindering the fair administration of justice, VR poses a real, tangible solution in placing judges and juries in the position of the defendant. Allowing them to truly ‘walk a mile in another’s shoes may bring the Australian legal system one step closer to true impartiality in law.