Excerpted From: Tiffany Hilton, The Danger of Unfair Prejudice: Racial Disparities in the Federal Rules of Evidence, 52 Stetson Law Review 153 (Fall, 2022) (256 Footnotes) (Full Document)

TiffanyLeeHiltonThe year 2020 brought about many new challenges in America. The COVID-19 pandemic ushered in a nationwide sense of unease and uncertainty that manifested in a myriad of ways: while some Americans scrambled to find toilet paper, others found themselves in shock after a video of police officer Derek Chauvin slowly killing George Floyd in broad daylight went viral. This video catalyzed a racial reckoning in America as people across the country poured into the streets, enraged, to protest the disparate treatment of people of color by law enforcement.

Unsurprisingly, this racial reckoning focused on police reform. Police officers patrol the streets armed to the teeth, seemingly with impunity, at times acting as judge, jury, and executioner. Police reform is not the only avenue to be explored in America's quest to eliminate racial disparity in our justice system. It is worthwhile to examine how we can bridge the gap from within the court system itself, and there is no better place to begin than the foundation upon which much of American jurisprudence rests: the Federal Rules of Evidence. This Article aims to not only identify implicit bias in the Federal Rules of Evidence but to propose a practical solution. In order to critique the prejudice shrouded within the facially neutral Federal Rules of Evidence, Part II briefly examines the history of evidence and the inception of the rules to supply a framework within which to navigate. Part III then thoroughly examines specific Federal Rules of Evidence that enshrine and beget implicit bias and racial stereotypes, and illustrates how far the rules have strayed from their stated purpose. Finally, through an explanation of how a more robust, thorough, and comprehensive application of Rule 403 can combat this implicit bias, Part IV provides a solution to bridging the gap between the stated purpose of the Federal Rules of Evidence and the reality of today's America, where confidence in our court system is at an all-time low, and race is often determinative of just how much justice an individual receives.

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In the wake of the George Floyd murder and cultural uprising that followed, Americans are desperate for tangible improvement of the treatment of people of color in our court systems. While so much of the focus is on police reform, there are changes that can be made in the courtroom with relative ease that may serve to level the racial playing field and make positive strides forward. The Federal Rules of Evidence, like so many other things promulgated solely by white men, have racial undertones that have a detrimental impact on people of color.

From the admission of prior bad acts and convictions to impeachment by prior inconsistent statements, people of color consistently experience severe and significant disadvantages in the United States court system. They do not have to, and the solution is simple: through precedent and scholarship, advocates for racial equality can convince the judiciary that a more thorough, comprehensive look at Rule 403 is not only beneficial, but necessary for the equal administration of justice. Attorneys and legal scholars have an obligation to work toward a better, more equal justice system; as one example, Florida attorneys pledge to “never reject, from any consideration personal to myself, the cause of the defenseless or oppressed” when they take the Oath of Admission to the Florida Bar. In this era of civil unrest and racial awakening, this Article serves as a call to action to legal scholars and lawyers alike. While others take to the streets, it is our absolute obligation to take to the courtrooms by way of appeals and to take to academic journals by way of scholarship to make our case. That racism in the United States is pervasive is no longer a theory, and it is time to face the issue head-on and act.

J.D. Stetson University College of Law, 2022, Magna cum laude; B.A. in English, University of South Florida, 2013.