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Excerpted from: Bennett Capers, Evidence Without Rules, 94 Notre Dame Law Review 867 (December 2018) (211 Footnotes) (Full Document)


BennettCapersImagine walking through a busy courthouse. In Courtroom One, a sexual assault case is in progress. The assistant district attorney has just called the victim as a witness. As the victim approaches the stand, you notice that she is modestly dressed, and you instantly begin to think of her as credible. Perhaps the jurors, who are nodding, are thinking the same thing. In Courtroom Two, the judge is conducting a voir dire as the lawyers begin the process of selecting a jury in an insurance fraud case. Although the jury pool nearly fills the courtroom gallery, you notice a young woman and three small children sitting apart from everyone else. You assume they are the defendant's family, and cannot help but wonder if a guilty verdict will separate the family. Will the jurors wonder this as well? Courtroom Three is almost the opposite, the gallery is completely empty but for you, the only spectator. The defense lawyer is cross-examining a uniformed police officer who claims he observed the defendant throw away a gun as the defendant was running from the officer. Even though jurors are rarely told anything about a defendant's criminal history, you wonder if the defendant, who is black, has a criminal record. You glance at the jurors, who seem bored. Perhaps they are assuming the same thing and are wondering whether they can simply vote guilty already.

On the surface, these three cases--a sexual assault case, an insurance fraud case, a gun possession case--are different. Yet in one important respect they share something in common: in all of these cases, fact finders will likely rely on “evidence”--a style of dress, the presence of family members, and race--that is rarely treated as evidence by the Rules of Evidence. Indeed, in some instances, the fact finders will rely on evidence that runs directly counter to evidentiary rules. Most troubling of all, because this evidence is rarely recognized as evidence in the formal sense, it typically enters unnoticed. It typically goes unremarked upon.

The first goal of this Article is to call attention to this other evidence. For too long scholars and jurists have proclaimed and insisted that the Rules of Evidence serve as a powerful, all-seeing gatekeeper, culling evidence brought before juries for relevance and trustworthiness. In fact, there is a panoply of evidence that, because it is rarely recognized as such, routinely passes evidentiary gatekeepers unobserved and unchecked. Calling attention to this evidence, indeed exposing it as evidence too, is the first goal of this Article.

The second goal of this Article is to demonstrate that such unregulated evidence matters. Consider the courtroom examples again. It is axiomatic among prosecutors that presenting a rape victim in more modest dress increases the chances of securing a conviction, just as defense lawyers know that having family members and friends in the gallery can increase jury sympathy and the likelihood of an acquittal. Turning to the gun possession case in Courtroom Three, litigators know that quite possibly the most powerful evidence in the case will be the defendant's race. In a very real sense, “race itself is evidence.”

All of this has consequences for victims of crime. For example, to the extent that punishment serves the purpose of facilitating victim vindication, it should strike us as a design flaw that such vindication could turn on whether a prosecutor remembers to tell a rape victim to dress conservatively in court. This also has consequences for defendants: the very issue of guilt may turn on whether family members, either the defendant's or the victim's, are sitting in the courtroom. Even in cases that do not go to trial--the overwhelming majority--this unregulated evidence has outsized consequences, since these cases are negotiated and settled with prospective jurors in mind and in the “shadow of trial.” And all of this has consequences for our entire judicial system, especially our criminal justice system. It certainly belies what we tell ourselves about the way justice works, that it is based on the “rule of law.” The truth is far less comforting. The determination of outcomes, notwithstanding the Rules of Evidence, is often ruleless.

The remainder of this Article proceeds as follows. Part I briefly reviews what we tell ourselves about the Rules of Evidence, namely that they are all-seeing, vigilant gatekeepers, and shows how untrue this is. Using the specific examples of modes of dress, demeanor evidence, and race, Part II elaborates upon the consequences of our misapprehension.

Finally, Part III puts forward a proposal for screening other evidence so that trials are more equitable and consistent with our notions of justice. It begins with a modest proposal, a simple jury instruction and directive. It then offers a solution that is anything but modest--a radical rethinking of the Rules of Evidence.

Nearly a century ago, in the pages of the Yale Law Journal, Professor Edson R. Sunderland wrote that the secrecy with which we cloak jury deliberations allows society at large to ignore the very imperfections that exist in the justice system. As Sunderland put it,

[Jury secrecy] covers up all the shortcomings which frail human nature is unable to eliminate from the trial of a case .... [C]oncrete details are swallowed up, and the eye of the law, searching anxiously for the realization of logical perfection, is satisfied .... It serves as the great procedural opiate, which draws the curtain upon human errors and soothes us with the assurance that we have attained the unattainable.

Sunderland is right, to be sure. But he also misses the larger picture. It is not just jury secrecy that serves “as the great procedural opiate.” It is the Rules of Evidence in toto that lull us into thinking their vigilance knows no bounds, and that they stand ready at the gatehouse to admit only relevant and trustworthy evidence, and to exclude any evidence that is overly prejudicial or privileged. In truth, the gatekeepers see only what we have directed them to see. When other types of evidence approach the gate--from modes of dress, to the presence of family members, to race--the gatekeepers stand idly by, not even seeing this evidence for what it is. But the fact finders do. And it is time, indeed past time, that we recognized this.

[. . .]

This case has nothing to do with race.

--Lawyer for officer who shot an unarmed black man, Philando Castile

This case has nothing to do with race.

--Police official, speaking of the arrest of Harvard Professor Henry Louis Gates for disorderly conduct when police suspected him of breaking into his own home

This case has nothing to do with race.

--Prosecutor in case involving white officer's shooting of an undercover black officer

This case has never been about race.

--Prosecutor speaking to the press following the acquittal of George Zimmerman for the death of unarmed black teenager Trayvon Martin

Race matters.

--Cornel West

Of the three examples of evidence considered by jurors and yet unchecked by the Rules of Evidence, race is the most troubling, especially given our aspiration of equal justice before the law. Indeed, it is arguable that this goal of equality, and indeed color blindness, prompts us to elide race at trial, at least officially. We tend to think saying nothing is the best policy. Indeed, as the novelist Toni Morrison has observed, “the habit of ignoring race is understood to be a graceful, even generous, liberal gesture.”

But what happens when we acknowledge that for jurors, “[r]ace is evidence,” even when race is unsaid? An illustration of this can be found in People v. Goetz. The case is known for its facts and its national media attention--Goetz, a white man, was acquitted after he shot four black youths on a New York City subway claiming that he reasonably feared deadly force after one or two of the youths asked him for five dollars. The case is also a staple of criminal law casebooks and the discussion of the “reasonable person” standard in self-defense cases. As Professor Jody Armour famously asked, should a “reasonable racist” be able to kill because he “reasonably” fears black men as dangerous and successfully claim self-defense? But there is another aspect of the case that illustrates, in particularly stark terms, how lawyers use race as evidence. At trial, the defense lawyer insisted that the path of the bullets Goetz fired was material to the case, and demanded that he be allowed to reenact the shooting in court so that the jurors could see the path of the bullets. The defense lawyer then brought in four “volunteers” to show where the victims were standing vis-à-vis Goetz. The four “volunteers,” that the defense claimed he needed simply to show the path of the bullets, were large black men. In the words of Professor George Fletcher, the Columbia law professor who sat in on the trial and later wrote a book about it, the choice of large black men was patently strategic, designed “to reek with danger.” Without saying a word, the defense lawyer put race front and center, and made race evidence.

It would be easy to argue that this backdoor race-ing of the four black youths in People v. Goetz is atypical. The reality is the exact opposite: that jurors, often with the complicity of lawyers, use race as evidence all of the time, and do so in ways that usually go unchecked by the Rules of Evidence.

Consider again one of the courtrooms visited in the Introduction. In Courtroom Three, a patrol officer was testifying about observing the defendant throw away a gun as the defendant ran from the officer. The officer eventually caught up with the defendant, apprehended him, recovered the gun from where it had been thrown, and arrested the defendant on gun possession charges. Although race was not mentioned in the case--the case is United States v. Whitmore would be foolhardy to think that race was absent. Race, even when unsaid, is still seen. Race, even when unacknowledged, is still present. Indeed, the defendant's race will likely be the first thing the jurors learn about a defendant, even before they learn his name. Before the first witness is called to the stand, before any opening statements, even before jury selection starts, jurors will see the race of the defendant sitting at the defense table, and will be unable to not see race. And jurors, even the most well-meaning, will likely use that race as evidence.

This has obvious implications for cases involving black or Latino defendants. Social cognition research demonstrates that implicit biases about race--those assumptions and associations we have even when we believe we are “race blind”-- are practically universal. In particular, research suggests a tendency to implicitly associate dark skin with criminality. In death penalty litigation, “the perceived Blackness of a defendant is related to sentencing: the more Black, the more deathworthy.” Moreover, this use of race as evidence tends to function automatically, including in ways that the person would not endorse as appropriate if he or she did have conscious awareness. Although this association has been demonstrated in numerous ways, from Harvard's standard implicit association tests (IAT) to Joshua Correll's shooter bias studies, one study deserves particular mention. Interested in adapting the standard IAT to something directly applicable to the legal setting, Professor Justin Levinson and others created a Guilty/Not Guilty IAT to test whether people implicitly associate blacks not just with criminality but specifically with guilt. They also tested to see whether their results would predict how mock jurors responded to ambiguous evidence. Their results are revealing: participants displayed a significant association between blacks and guilt (as compared to whites and guilt). A regression model further demonstrated that the association of blacks with guilt also predicted judgments about what weight to give certain evidence. Those with strong associations of blacks and guilt were more likely to judge ambiguous evidence as indicative of guilt in cases involving black defendants.

The association of dark skin with criminality and guilt is just one of several ways race plays a role in jury determinations. Since “blue on black” police violence has been much in the news, consider the role race--and specifically the implicit association of blackness with violence--likely plays in police shootings and excessive force cases. Consider, too, studies that show individuals assume blacks experience less pain than whites, and showing that individuals assume black men are larger than white men, even when they are the identical size. Add to this studies that show individuals remember stories they are told differently when the race of the actors in the story is changed--specifically, people will “recall” aggressive behavior by black actors that was completely absent in the story. Assuming “juror unexceptionalism” idea that jurors will have the same implicit biases as the general public--these studies suggest jurors will be more likely to credit an officer's justification defense that he reasonably believed a black victim presented a danger to his life, even when the actual evidence is to the contrary.

There are at least three other ways jurors treat race as evidence. The first has to do with our long history of tying race to credibility, beginning with laws and customs that prohibited nonwhites, including Latinos and Asians, from testifying against whites. Even after race-based competency rules were eradicated, race continued to be tied to credibility. North Carolina, for example, required that “whenever a person of color shall be examined as a witness, the court shall warn the witness to declare the truth.” The Oregon Supreme Court twice ruled that Chinese witnesses must be viewed with special scrutiny, stating in one case that “[e]xperience convinces every one that the testimony of Chinese witnesses is very unreliable.” The point here is not just that this history is important. It is that we have not yet untethered ourselves from history. Social science literature makes clear that race is still a factor in credibility determinations. Another scholar puts the matter more bluntly: “In an instant, at first sight and without formally entering evidence or investing resources, the party calling the white witness [is] able to bolster the witness's credibility for truthfulness. Conversely, a witness of color is automatically considered less credible ....” All of this contributes to what the philosopher Miranda Fricker calls “testimonial injustice,” which occurs when “prejudice results in the speaker's receiving more credibility than she otherwise would have--a credibility excess--or it results in her receiving less credibility than she otherwise would have--a credibility deficit.” Professor Fricker goes on to note that who receives a credibility excess and who receives a credibility deficit often turns on the race of the speaker.

The second way race is treated as evidence relates to prior convictions and other bad acts. Although evidentiary rules normally bar evidence of a defendant's prior criminal record or other bad acts, jurors likely assume past criminality for black defendants. Again, this is consistent with numerous IAT studies showing that most Americans implicitly associate dark skin with criminality. But it is also consistent with research from another field entirely: Harvard sociologist Devah Pager's research on employment opportunities. Using testers for entry-level jobs advertised in newspapers, Pager found that employers were less likely to pursue black applicants compared to white applicants with identical resumes and interview preparation. Her conclusion: racial discrimination in hiring, at least for low-level jobs, is very real. But her research also led to a second finding that is less well-known: callback rates still favored white applicants even when white applicants, and white applicants alone, disclosed on their applications that they had a prior conviction. In other words, employers treated white applicants who disclosed having a criminal record as effectively on par with black applicants without a criminal record. The most plausible explanation is many employers assumed a history of criminality for black applicants. A recent paper from the National Bureau of Economic Research made similar findings. Again, assuming juror unexceptionalism, this suggests jurors are more likely to treat black defendants as if they had prior convictions, which in turn is likely to contribute to a finding of guilty. As Kimani Paul-Emile has recently written, in this and other ways blackness itself “operates as a disabling condition.”

Before moving to the third point, there is one more thing to be said about race as evidence. Not only do we have biases that disfavor racial minorities. We also have biases that favor whites. In particular, we have implicit biases that link whiteness with truth telling and innocence. In Pager's employment studies, employers assumed white applicants had a clean slate unless the white applicant disclosed a prior arrest or conviction. In Joshua Correll's shooter bias, the results showed not only that participants were more likely to mistakenly believe a black individual had a gun (i.e., a false positive), but also that participants were more likely to wrongly assume a white person did not (i.e., a false negative). Similarly, Justin Levinson's narrative study, which found participants invented aggressiveness when the actor was black, found that participants actually failed to remember evidence of aggressiveness when the actor was white. In short, it is not only in cases involving minority defendants where race matters. Race also matters in cases involving white defendants, whom jurors are more likely to view as presumptively innocent, and cases involving white witnesses, whom jurors deem presumptively credible.

The third point about race as evidence is this: jurors, most likely without realizing it, appear to use race as a measure of value and worth. Perhaps nowhere is this use of race more challenging and stark than in the death penalty context. The most well-known study is the Baldus study, which became the subject of the Court's decision in McCleskey v. Kemp. The statistical study examined murder cases in Georgia to see what role, if any, race played in capital punishment determinations. The study concluded that far more important than the race of the defendant was the race of the victim. Even after taking into account thirty-nine nonracial variables, the study concluded that defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing black victims. Subsequent studies have reached similar results. Brandon Garrett's recent study of death penalty cases nationwide during the last twenty-five years also supports the argument that decisionmakers use race as a measure of value and worth. Even though the number of death sentences has steeply declined, for the death sentences that are still imposed, the race of the victim still seems to matter in the counties that impose death. Garrett calls this the “white lives matter more” effect. In short, all other things being equal, jurors appear to use race as a proxy for measuring worth (of the victim) and harm (to the community). All of this is using race as evidence.

[. . .]

Imagine again walking through a busy courthouse. The sexual assault trial is still going on in Courtroom One--the alleged victim is on the stand, modestly dressed, while the defendant sits at the defense table in a prep school blazer--but this time the judge, after weighing the probative value against the risk of prejudice, pauses to remind jurors that the evidence is the testimony they will hear from the witness, and that how she is dressed in court, or indeed how the defendant is dressed, should not factor into their deliberations. In Courtroom Two, an insurance fraud case, the defendant's wife and three small children still sit in the gallery, but this time the judge begins with some preliminary instructions to the jury. They include an instruction that their job is to decide the facts of the case based on evidence, not sympathy. The judge adds that the presence of the defendant's family members is not evidence and should not weigh in their determinations. In Courtroom Three, the gun possession case, the judge has already admonished the jurors that they should judge the uniformed officer's testimony just as they would any witness's testimony--the uniform is not like Wonder Woman's lasso of truth, the judge jokes--and now, with the jurors excused, the prosecutor and defense lawyer, attuned that jurors may be using race as evidence, are trying to reach agreement about the best way to minimize any race-based implicit biases or assumptions jurors might have about the black defendant's character or criminal history, or about any witness's character for truthfulness. At the end of the trial, the judge will reemphasize this point by instructing the jurors on what is not evidence and by providing them a checklist of the witnesses who testified, the exhibits that were admitted, and directing the jurors to base their verdict solely on the listed evidence and nothing else.

There are other courtrooms where jury selection is just beginning, where witnesses are already testifying and exhibits are being authenticated and offered into evidence, where jurors are being instructed on the law, and where jurors are returning from deliberations, ready to state their verdict in open court. And not just other courtrooms. There are law firm conference rooms where lawyers are hammering out settlements in civil cases, and busy hallways where prosecutors and defense lawyers are negotiating pleas, all in the shadow of trial as they consider how their cases will play to jurors if they do not reach a disposition. Except now they know that all evidence--including the types of evidence that have normally gone unchecked by evidentiary gatekeepers--will be tested for its relevance and trustworthiness, and screened for its unfair prejudice. They will be able to argue about it, and even sometimes have it excluded.

And throughout all of it, we will know that even though there is much work to be done before we have a perfect system, we have at least improved it. We are at least closer to getting judgments and dispositions that can give us epistemic comfort that the right result will be reached. This has been the ambition of this Article: to rethink the Rules of Evidence so that they address all evidence.

Stanley A. August Professor of Law, Brooklyn Law School.