Implicit bias jury instructions, which are widely used by civilian courts to educate jurors about their inherent biases, could be coming soon to court-martial proceedings following significant changes to the military justice system over the last year.

U.S. Marine Corps Lt. Col. Susan Upward is working on a proposal to have implicit bias jury instructions added to the Military Judges' Benchbook, a more than 2,000-page guide on instructions that military judges can give during general and special courts-martial.

Upward told Law360 in a recent interview that even though military judges already have the authority to give juries instructions on their responsibilities, they are more likely to embrace implicit bias instructions if they are included in the benchbook.

Judges "are always concerned when they're doing something that's out of the norm," she said. Putting implicit bias instructions in the benchbook "gives them a little more comfort in knowing that they're not doing something novel in a case."

Upward noted that her views are her own and do not represent the views of the U.S. Department of Defense or the Marine Corps.

In 2008, U.S. District Judge Mark Bennett, now retired, was the first American judge to give implicit bias instructions to jurors deciding a drug conspiracy case involving a Hispanic defendant. Over the course of his career, Bennett gave implicit bias instructions in more than 400 jury proceedings.

Bennett, who is currently director of Drake University Law School's Institute for Justice Reform and Innovation, told Law360 that implicit bias instructions are vital for fair court proceedings because everyone has inherent biases that can unwittingly affect their judgment.

"It's important that jurors understand what implicit biases are and that we all have them," he said. "We may have a different constellation of implicit biases, but we all have them."

In 2016, the American Bar Association's House of Delegates, a policymaking body, passed a resolution that encourages all judges to educate jurors about how implicit biases can impact decision making.

A recent and high-profile example of implicit bias instructions being given was in the 2021 criminal jury trial of former Minneapolis police officer Derek Chauvin, who was found guilty of murder in the slaying of George Floyd. In that case, jurors received written instructions that included a section on implicit bias.

"Each of you have different backgrounds and will be viewing this case in light of your own insights, assumptions and biases. Listening to different perspectives may help you to better identify the possible effects these hidden biases may have on decision-making. Resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes or unconscious biases," the instructions said.

Despite these developments, implicit bias instructions have not been universally adopted by all U.S. courts.

Bennett said that not all civilian courts are using implicit bias instructions because judges are "status quo-oriented" and their work requires them to focus on precedent.

"Most judges are well-qualified for their position, but they're not necessarily forward-thinking judges, or progressive judges, willing to undertake innovations," he said.

In August, the ABA held a continuing legal education session on implicit bias in civilian and military courts at its weeklong annual meeting. During the session, titled "The Sights, Sounds, and Statistics of Injustice: Identifying and Mitigating Implicit Bias in Civilian and Military Court," Upward discussed her proposal for the Military Judges' Benchbook.

Anyone can propose a revision to the benchbook, according to the U.S. Army Trial Judiciary's standard operating procedure. Major changes are reviewed by the benchbook's committee, which has seven to 10 days to comment on a proposal. The committee's comments and the original proposal are then sent to the Army's chief trial judge for final approval.

Upward plans on submitting her proposal for an implicit bias instruction for the benchbook next year, and include a law review article on the topic that is set to be published in Southern California Review of Law and Social Justice in April.

According to Upward, adding implicit bias instructions to courts-martial is a simple and no-cost way to address biases that hinder military justice.

"While there is not a specifically enumerated constitutional right to an implicit bias instruction, its utility can at least assist judges in ensuring implicit bias does not impede the fair administration of justice," Upward wrote in a draft of her law review article.

Upward's work comes at a time when the military justice system is undergoing significant changes.

In December, lawmakers agreed to remove military commanders' prosecutorial authority over serious crimes like sexual assault, murder and kidnapping and establish a special trial counsel office to handle these crimes.

Even though these are significant changes, they fall short of reforms that some lawmakers and reform advocates had wanted, such as removing commanders' prosecutorial authority over all nonmilitary crimes committed by service members.

And while implicit bias instructions could make courts-martial fairer, they won't solve core problems with the military court system, according to military justice reform experts.

Rachel VanLandingham, a professor of law at Southwestern Law School and a former U.S. Air Force judge advocate officer and lieutenant colonel, said studies show that inequities occur in the decisions made by commanders before military trials are even convened.

"There's a structural defect in courts-martial, and that is that the same commander that decides to charge someone in their unit, picks the charges [and] hand-selects the panel members," VanLandingham said.

In 2017, Protect Our Defenders, a nonprofit organization dedicated to ending sexual violence in the military, released a report finding substantial racial disparities in court-martial proceedings, especially in the Air Force. The report found that from 2006 to 2015, Black airmen were nearly twice as likely to face court-martial or nonjudicial punishment than white airmen in an average year.

Three years later, the U.S. Government Accountability Office released a follow-up report confirming racial disparities in courts-martial. The GAO report found that, in three military branches, Black soldiers were about twice as likely as white soldiers to be tried in general and special courts-martial. The agency didn't find racial disparities in the outcomes of court-martial proceedings.

Retired Air Force Col. Don Christensen, a former military prosecutor and president of Protect Our Defenders, said his organization's report was significant because it was the first time in a long time that racial disparities were examined in the military justice system.

"One of the reasons that was so important is the military [touts] their justice system as being this really fair process ... but when you peel it back to numbers, it showed that there was a problem there," Christensen said.

Josh Kastenberg, a professor of law at the University of New Mexico School of Law and a former Air Force judge, added that while implicit bias jury instructions would bring the military justice system closer to civilian courts in terms of fairness, they won't solve the problem of racial disparities in who faces courts-martial.

"The disparity comes about as a result of the discretion of prosecutors and commanding officers rather than juries," Kastenberg said.

Kastenberg, Christensen and VanLandingham all agreed that courts-martial need to have unanimous jury verdicts to be fairer.

The military doesn't have "unanimous verdicts purely for expediency sake because you had to discipline these folks and get them back out to the front, but today that expediency argument just doesn't hold water anymore," VanLandingham said.

--Editing by Marygrace Anderson and Michael Watanabe.