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<\/p>\nWe live in a time where every action we take, every premise we rely on, warrants scrutiny through the prisms of race and implicit bias.\u00a0 This reckoning, long overdue for too many individuals and institutions, was brought about by the murder by police of George Floyd and the consequent outpouring of grief, rage and commitment.\u00a0 The application of the Rules of Evidence require that same scrutiny by those who teach and those who judge.<\/p>\n
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The suggestion is not novel.\u00a0 A pioneering work in this field is that of Professor Jasmine B. Gonzalez Rose, Toward a Critical Race Theory of Evidence, Minnesota Law Review, Vol. 101, p. 2243, (2017<\/a>).\u00a0 Another essential source for those who teach evidence is Guerilla Guides to Law Teaching No. 5 \u2013 Evidence (https:\/\/guerrillaguides.wordpress.com\/2017\/09\/05\/no-5-evidence\/<\/a> ).\u00a0 And there are more articles that confront and analyze race, implicit bias, and Evidence Law.[1]<\/a><\/p>\n Nonetheless, the immediate response might be one of doubt.\u00a0 The word \u201crace\u201d is absent from the Federal Rules of Evidence, and the hearsay rules, for example, are arguably color-blind \u2013 a present sense impression is a present sense impression, with its admissibility in no way dependent upon the race of the declarant or the perceiver.<\/p>\n But in truth nothing is neutral.\u00a0 Evidence rules were crafted over centuries, with the authors predominantly white males.\u00a0 And their drafting occurred without consideration of whether they reflect the experience(s) of minorities or in some way disproportionately impact people of color \u2013 be they parties or witnesses \u2013 either in restricting their ability to testify or making it harder to deem them credible.\u00a0 If that is correct, race must be contemplated when evidentiary rulings are made.<\/p>\n Here are four examples of where race and racism belong in the Evidence calculus.<\/p>\n Admissions by Silence:<\/strong>\u00a0 The doctrine of tacit admissions – \u00a0admissions by silence and failure to deny or object – is a normative rule.\u00a0 It presumes that the \u2018average\u2019 person would speak up in the face of an accusation.\u00a0 But that average or reasonable person expectation may be derived from the experience of a white male; in other cultures, silence is not acquiescence, and in today\u2019s world, silence in the face of power is certainly not agreement.\u00a0 The proper inquiry when confronted with a claim of adoption by silence must be to expand the test from that posited in the Notes of the Advisory by adding the bolded<\/strong> language:<\/p>\n When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior including issues<\/strong> of race, ethnicity and cultural and the power relationship between the speaker and the person who remains silent.<\/strong><\/p>\n This requires no rewriting of the Rules of Evidence; instead, all that is required is abandonment of a white male norm for assessing expectations.\u00a0 Whether a judge can do that, or will need some sort of expert assistance, is an open question.<\/p>\n Impeachment With Prior Convictions:<\/strong>\u00a0 Federal Rule of Evidence 609 mandates admission against all witnesses except persons accused of crime, subject to a Rule 403 analysis, of \u201ca crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year\u2026\u201d\u00a0 Aggravated assaults, petty thefts, drug offenses, drunk driving\u00a0 and more \u2013 all proving little or nothing about whether the witness is likely to be truthful in court and under oath \u2013 come in.<\/p>\n This part of Rule 609 has many critics, not least because of the disconnect between the crime of conviction and the likelihood of bearing false witness.\u00a0 See, e.g.<\/em>, Rice, RESTORING JUSTICE: PURGING EVIL FROM FEDERAL RULE OF EVIDENCE 609, 89 Temp. L. Rev. 683, 690-693 (Summer, 2017).\u00a0 But what has yet to be imported into the 403 calculus is the impact of race.<\/p>\n There is ample documentation that police discretion in who to arrest and what charge to recommend is often informed by the race of the suspect.\u00a0 A 2011 analysis concluded that “[o]n average, the chances of a minority suspect being arrested were found to be 30 percent greater than a White suspect”).\u00a0 Tammy Rinehart Kochel et al., EFFECT OF SUSPECT RACE ON OFFICERS’ ARREST DECISIONS, 49 CRIMINOLOGY 473, 498 (2011).\u00a0 A subsequent study of retail theft arrests in Texas showed that race impacted the level of charge initiated by the police \u2013 black women in particular were found to be charged with a more serious level of theft than white women in the same or similar circumstances.\u00a0 Braun, Rosenthal and Therrian, POLICE DISCRETION AND RACIAL DISPARITY IN ORGANIZED RETAIL THEFT ARRESTS: EVIDENCE FROM TEXAS, 15 J. Empirical Legal Stud. 916, 937 (December, 2018).\u00a0 And once in the system, prosecutorial discretion in charging has a further disproportionate effect.\u00a0 A recent study found that in one state \u2013 Wisconsin \u2013 \u201cWhite defendants are twenty-five percent more likely than black defendants to have their most serious initial charge dropped or reduced to a less severe charge\u2026\u201d\u00a0 \u00a0Berdejo, CRIMINALIZING RACE: RACIAL DISPARITIES IN PLEA-BARGAINING, 59 B.C. L. Rev. 1187, 1191 (2018).<\/p>\n As a result, criminal convictions \u2013 whether being convicted at all or the severity of the charge – may be a product of race rather than character.\u00a0 This skewing of the process requires an enhanced 403 assessment – before allowing a witness to be impeached by a conviction that does not inherently involve deception and thus conveys little about testimonial accuracy and honesty, race must be accounted for; otherwise, the credibility of African-American witnesses will be devalued not because of their character but because their criminal record is a consequence of disparate treatment.\u00a0 This same calculus may be needed where other minorities are subject to dissimilar arrest and charging decisions.<\/p>\n Impeachment by Prior Inconsistent Statements:<\/strong>\u00a0 This staple of trials \u2013 cross-examining a witness to prove that the story has changed \u2013 may seem race-neutral, but that judgment is dependent in part on the accuracy of the recording of the initial statement.\u00a0 Where the speaker is Black, accuracy of transcription is a serious concern.\u00a0 As reported in the New York Times,<\/p>\n court reporters in Philadelphia regularly made errors in transcribing sentences that were spoken in a dialect that linguists term African-American English\u2026On average, the reporters made errors in two out of every five sentences, according to the study.<\/p>\n Speaking Black Dialect in Courtrooms Can Have Striking Consequences<\/em>, January 25, 2019 https:\/\/www.nytimes.com\/2019\/01\/25\/us\/black-dialect-courtrooms.html<\/a> (last visited June 12, 2020).\u00a0 Impeachment with an inaccurately transcribed statement, especially one taken under oath and thus admissible for its truth, undercuts the credibility of witnesses of color and<\/em> diminishes the prospect of accurate adjudications.\u00a0 Before impeachment is permitted, the risk of an inaccurate transcription must be weighed.<\/p>\n \u2018Unmasking\u2019 Witnesses<\/strong><\/p>\n On occasion, Judges have required witnesses who wear the niqab to remove it as a condition of testifying in court to permit an evaluation of demeanor.\u00a0 The claim is that without the ability to see the person\u2019s face, demeanor cannot properly be assessed.\u00a0\u00a0 See. e.g.<\/em>, COMMENT: MICHIGAN RULE OF EVIDENCE 611(B) AND THE NIQAB: A VIOLATION OF FREE EXERCISE OF RELIGION, 27 T.M. Cooley L. Rev. 611 (2010).\u00a0 The science is clear that demeanor is rarely a guide to ascertaining deception, and in some cases a focus on demeanor \u2013 and with it stereotypes on which behavior correlates with lying \u2013 actually detracts from determining accuracy.<\/p>\n Mandating removal of a religious garment can only have two deleterious effects \u2013 for some, it will dissuade them from giving testimony; and for those who comply, it may lead to \u2018demeanor\u2019 such as looking down or away from the questioner or the factfinder that feeds into the stereotypes of how a dishonest witness acts.\u00a0 Neither impact enhances the function of a trial.\u00a0 While this issue goes beyond race and is particularly directed at women, it clearly impacts persons of color who also belong to particular religions.<\/p>\n There are more instances where race needs to be in the Evidence calculus.\u00a0 When analyzing proof of flight from police, race and the fraught relations between minority communities and the police affect its probativeness but are almost never weighed by courts; when admitting eyewitness testimony, some courts are still reluctant to instruct on (let alone preclude) cross-racial identifications with their diminished reliability; and lay opinion testimony as to what conduct appeared to be or implied may be informed (or mis-informed) by race.<\/p>\n Rule 102 of the Federal Rules of Evidence declares that \u201c[t]hese rules should be construed so as to administer every proceeding fairly\u2026to the end of ascertaining the truth and securing a just determination.\u201d\u00a0 As these examples demonstrate, without considering the effects of systemic racism, those goals cannot be achieved.<\/p>\n ———————————————————————————————–<\/p>\n <\/p>\n [1]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 See, e.g.<\/em>, Jane Aiken, Teaching The Rules of Truth<\/em>, Georgetown Law (2006); Mikah Thompson, Bias on Trial<\/em> – https:\/\/digitalcommons.law.msu.edu\/lr\/vol2018\/iss5\/3\/<\/a>; Mikah Thompson, A Culture of Silence: Exploring the Impact of the Historically Contentious Relationship between African-Americans and the Police, 85 UMKC L. REV. _ (2017) (https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=3001054<\/a> ); Mikah Thompson, Blackness as Character Evidence <\/a>, 20.2 MICH. J. RACE & L. 321 (2015);\u00a0 \uf0b7\u00a0 Bennett Capers, Evidence Without Rules, <\/em>94 Notre Dame Law Review 867 (2018): https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=3155477<\/a>;\u00a0 Julia Simon-Kerr, Credibility by Proxy, <\/em>\u00a085 George Wash. L. Rev. 152 (2017): https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=2790989<\/a>;\u00a0 Montre’ Carodine: \u00a0\u201cThe Mis-Characterization of the Negro\u201d:\u00a0\u00a0A Race Critique of the Prior Conviction Impeachment Rule, 84\u00a0Indiana Law Journal\u00a0521 (2009); Montre’ Carodine: \u00a0Keeping it Real:\u00a0\u00a0Reforming the \u201cUntried Conviction\u201d Impeachment Rule, 69\u00a0Maryland Law Review\u00a0501 (2010); \u00a0Montre’ Carodine:\u00a0 \u201cStreet Cred,\u201d\u00a046\u00a0U.C. Davis Law Review 1583\u00a0(2013); Montre’ Carodine: \u00a0Race is Evidence: (Mis)Characterizing Blackness in the American Civil Rights Story,\u00a0\u00a0main book chapter in Civil Rights in the American Story (Austin Sarat, ed., Cambridge University Press, 2013); Montre’ Carodine: \u00a0Contemporary Issues in Critical Race Theory:\u00a0\u00a0Race as Character Evidence in High Profile Cases, 75\u00a0Pittsburgh Law Review 679 (2014)\u200b; Tamara F. Lawson, Powerless Against Police Brutality:\u00a0 A Felon\u2019s Story, 25 St. Thomas Law Review 218 (2013).<\/p>\n <\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" We live in a time where every action we take, every premise we rely on, warrants scrutiny through the prisms of race and implicit bias.\u00a0 This reckoning, long overdue for too many individuals and institutions, was brought about by the murder by police of George Floyd and the consequent outpouring of grief, rage and commitment.\u00a0<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,6,7,9],"tags":[],"coauthors":[238],"class_list":["post-2749","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-criminal-law","category-evidence","category-teaching"],"yoast_head":"\n<\/h1>\n