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West Virginia Law Review

Document Type

Article

Abstract

How can capital defense lawyers craft narratives that neutralize jurors' unconscious racial and ethnic biases? A well-developed body of research in cognitive psychology indicates that despite even the best of intentions and the absence of conscious prejudice, most Americans harbor unconscious biases against African Americans. These biases influence what we actually perceive, how we interpret what we perceive, and how we act. For reasons related to the content and structure of capital sentencing trials, these unconscious biases are particularly likely to influence capital jurors. In effect, unconscious racial bias acts as an invisible witness against the African American defendant, buttressing the prosecution's claims concerning his incorrigibility and undermining his case in mitigation. Moreover, implicit bias operates even when-perhaps especially when-race is not explicitly at issue. Yet most capital defense lawyers do little to confront this invisible witness. This Article places the capital defendant at the intersection of cognitive psychology and narrative theory. Specifically, it addresses the following questions: When constructing mitigation narratives, how should capital defense lawyers take into account the research of cognitive scientists on implicit racial biases? What narrative strategies effectively neutralize the testimony of the invisible witness? In attempting to answer these questions, this Article analyzes the opening and closing statements from two capital sentencing trials.

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