Saturday, September 23, 2017

excerpted from: Sounding Black in the Courtroom: Court-sanctioned Racial Stereotyping, 18 Harvard BlackLetter Law Journal 185-210, 185-188 (Spring, 2002)(179 Footnotes)

Do you think you can identify the color of a person's skin by listening to his voice? If so, would you swear to it in court? Would you know if you harbor any deep-seated racial prejudices? Would you recognize them if you did? Would you testify to a defendant's guilt in a criminal trial based on listening to his voice and deciding on his race--never having seen him? If you would, you will applaud a recent state supreme court ruling.

Kentucky's highest court recently held that a white police officer, who had not seen the black defendant allegedly involved in a drug transaction, could, nevertheless, identify him as a participant by saying that a voice on an audiotape "sounded black." The police officer based this "identification" on the fact that the defendant was the only black man in the room at the time of the transaction and that an audio-tape-- contained the voice of a man the officer said sounded black selling crack cocaine to a white informant planted by the police.

In affirming the trial court, a majority of the Kentucky Supreme Court held that because witnesses are routinely permitted to give their lay opinions about certain common observations, such as a person's age or whether he or she was intoxicated, it was proper for this police officer to opine about a man's race, based solely on what he had heard. The majority reasoned that because witnesses have been allowed to testify about accent or dialect, it was proper for this police officer to testify about the defendant's race, and thus his identity without having seen him.

All of the participants in this trial were white, except the defendant. At trial, the prosecution needed to prove that it was the defendant who sold crack cocaine to the state's informant. The testifying police officer had never seen the defendant, and the defendant denied the charge. To make matters worse, this was a case involving crack cocaine--a drug predominately associated with African Americans. The police officer's testimony that the person he heard offering to sell the drugs to the under-cover police officer "sounded black," and the fact that the defendant was the only black person at the apartment where the sale was made, may have clinched the prosecution's case.

To this author's ear, this Kentucky decision sounds like court- sanctioned racial stereotyping. After all, what does it mean to "sound" black, white, Asian, or Native American? What biases, conscious or otherwise, spring to mind when one hears that a particular individual is of a certain race? The Kentucky decision is not an isolated example: courts in Arkansas, Missouri, and Washington state have issued similar rulings. Do these rulings allow jurors to decide a case on an improper basis--racial stereotyping?

Part I of this Article details the facts behind the Kentucky Supreme Court's decision in Clifford v. Commonwealth. Part II analyzes the argument propounded by the majority in Clifford v. Commonwealth that allowing lay witnesses to testify about race, based on voice alone, is akin to allowing them to testify about things people commonly perceive by sight--such as intoxication or

Part II also addresses the issue of whether race identification, based on voice alone, is as reliable as lay witness testimony on accent, dialect, or gender.

Part III argues that even if race identification testimony, based on voice alone, is an inference that lay witnesses commonly and reliably draw, such testimony is inadmissible because its probative value is substantially outweighed by the danger of unfair prejudice. In addition, Part III discusses the cases cited by the Clifford majority and their treatment of the issue raised by Clifford as to the risk of prejudice associated with identifying an accent or dialect, particularly in drug cases.

In Part IV of this Article, the author discusses racial profiling which leads to selective enforcement and selective prosecution-particularly in crack cocaine cases. Finally, in Part IV the author argues that race identification, based on voice alone, is uniquely troubling because it confers judicial legitimacy on the admission of evidence based on racial bias and stereotyping.

[a1]. Associate Professor, Director of the Trial Advocacy Program, University of Washington School of Law, and former Federal Prosecutor. J.D., Harvard Law School, 1987.

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