by Jules Epstein
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. 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. The application of the Rules of Evidence require that same scrutiny.
The suggestion is not novel. 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). Another essential source for those who teach evidence is Guerilla Guides to Law Teaching No. 5 – Evidence (https://guerrillaguides.wordpress.com/2017/09/05/no-5-evidence/ ). And there are more articles that confront race, implicit bias, and Evidence Law.
Nonetheless, the immediate response might be one of doubt. The word “race” is absent from the Federal Rules of Evidence, and the hearsay rules, for example, are arguably color-blind – 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.
But in truth nothing is neutral. Evidence rules were crafted over centuries, with the authors predominantly white males. And their drafting occurred without consideration of whether they reflect the experience(s) of or in some way disproportionately impact people of color – be they parties or witnesses – either in restricting their ability to testify or making it harder to deem them credible. If that is correct, race must be contemplated when evidentiary rulings are made.
Here are four examples of where race and racism belong in the Evidence calculus.
Admissions by Silence:
The doctrine of tacit admissions – admissions by silence and failure to deny or object – is a normative rule. It presumes that the ‘average’ person would speak up in the face of an accusation. 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’s world, silence in the face of power is certainly not agreement. 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 language:
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 of race, ethnicity and cultural and the power relationship between the speaker and the person who remains silent.
This requires no rewriting of the Rules of Evidence; instead, all that is required is abandonment of a white male norm for assessing expectations. Whether a judge can do that, or will need some sort of expert assistance, is an open question.
Impeachment With Prior Convictions
Federal Rule of Evidence 609 mandates admission against all witnesses except persons accused of crime, subject to a Rule 403 analysis, of “a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year…” Aggravated assaults, petty thefts, drug offenses, drunk driving and more – all proving little or nothing about whether the witness is likely to be truthful in court and under oath – come in.
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. See, e.g., Rice, RESTORING JUSTICE: PURGING EVIL FROM FEDERAL RULE OF EVIDENCE 609, 89 Temp. L. Rev. 683, 690-693 (Summer, 2017). But what has yet to be imported into the 403 calculus is the impact of race.
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. 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”). Tammy Rinehart Kochel et al., EFFECT OF SUSPECT RACE ON OFFICERS’ ARREST DECISIONS, 49 CRIMINOLOGY 473, 498 (2011). A subsequent study of retail theft arrests in Texas showed that race impacted the level of charge initiated by the police – 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. 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). And once in the system, prosecutorial discretion in charging has a further disproportionate effect. A recent study found that in one state – Wisconsin – “White 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…” Berdejo, CRIMINALIZING RACE: RACIAL DISPARITIES IN PLEA-BARGAINING, 59 B.C. L. Rev. 1187, 1191 (2018).
As a result, criminal convictions – whether being convicted at all or the severity of the charge – may be a product of race rather than character. 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. This same calculus may be needed where other minorities are subject to dissimilar arrest and charging decisions.
Impeachment by Prior Inconsistent Statements
This staple of trials – cross-examining a witness to prove that the story has changed – may seem race-neutral, but that judgment is dependent in part on the accuracy of the recording of the initial statement. Where the speaker is Black, accuracy of transcription is a serious concern. As reported in the New York Times,
court reporters in Philadelphia regularly made errors in transcribing sentences that were spoken in a dialect that linguists term African-American English…On average, the reporters made errors in two out of every five sentences, according to the study.
Speaking Black Dialect in Courtrooms Can Have Striking Consequences, January 25, 2019 https://www.nytimes.com/2019/01/25/us/black-dialect-courtrooms.html (last visited June 12, 2020). 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 diminishes the prospect of accurate adjudications. Before impeachment is permitted, the risk of an inaccurate transcription must be weighed. [The same may be true
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. The claim is that without the ability to see the person’s face, demeanor cannot properly be assessed. See. e.g., 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). The science is clear that demeanor is rarely a guide to ascertaining deception, and in some cases a focus on demeanor – and with it stereotypes on which behavior correlates with lying – actually detracts from determining accuracy.
Mandating removal of a religious garment can only have two deleterious effects – for some, it will dissuade them from giving testimony; and for those who comply, it may lead to ‘demeanor’ such as looking down or away from the questioner or the factfinder that feeds into the stereotypes of how a dishonest witness acts. Neither impact enhances the function of a trial. While this issue goes beyond race and is particularly directed at women, it clearly impacts persons of color who also belong to particular religions.
There are more instances where race needs to be in the Evidence calculus. 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.
Rule 102 of the Federal Rules of Evidence declares that “[t]hese rules should be construed so as to administer every proceeding fairly…to the end of ascertaining the truth and securing a just determination.” As these examples demonstrate, without considering the effects of systemic racism, those goals cannot be achieved.
 See, e.g., Jane Aiken, Teaching The Rules of Truth, Georgetown Law (2006); Mikah Thompson, Bias on Trial – https://digitalcommons.law.msu.edu/lr/vol2018/iss5/3/; 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 ); Mikah Thompson, Blackness as Character Evidence , 20.2 MICH. J. RACE & L. 321 (2015); Bennett Capers, Evidence Without Rules, 94 Notre Dame Law Review 867 (2018): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3155477; Julia Simon-Kerr, Credibility by Proxy, 85 George Wash. L. Rev. 152 (2017): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2790989; Montre’ Carodine: “The Mis-Characterization of the Negro”: A Race Critique of the Prior Conviction Impeachment Rule, 84 Indiana Law Journal 521 (2009); Montre’ Carodine: Keeping it Real: Reforming the “Untried Conviction” Impeachment Rule, 69 Maryland Law Review 501 (2010); Montre’ Carodine: “Street Cred,” 46 U.C. Davis Law Review 1583 (2013); Montre’ Carodine: Race is Evidence: (Mis)Characterizing Blackness in the American Civil Rights Story, main book chapter in Civil Rights in the American Story (Austin Sarat, ed., Cambridge University Press, 2013); Montre’ Carodine: Contemporary Issues in Critical Race Theory: Race as Character Evidence in High Profile Cases, 75 Pittsburgh Law Review 679 (2014); Tamara F. Lawson, Powerless Against Police Brutality: A Felon’s Story, 25 St. Thomas Law Review 218 (2013).