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Andrew Elliot Carpenter

abstracted from: Andrew Elliot Carpenter, Chambers V. Mississippi: the Hearsay Rule and Racial Evaluations of Credibility , 8 Washington and Lee Race and Ethnic Ancestry Law Journal 15 (Spring, 2002) (42 Footnotes)

One of the foundations of our adversary trial system is witness testimony. The opportunity for people with knowledge of events to recite facts, and the chance for the adverse party to cross-examine, is a fundamental part of the truth-seeking function of a trial. An awareness of how judges evaluate witness testimony is critical to eradicating the unconscious racism in American society.

Unconscious racism arises out of viewpoints, fears and stereotypes of which people are unaware. One federal judge wrote that "[t]he root of unconscious racism can be found in the latent psyches of white Americans that were inundated for centuries with myths and fallacies of their superiority over the black race," and that a form of "benign neglect" has replaced overt and intentional discrimination. This subtle prejudice forms over years of accumulated social and cultural experiences. It is an entrenched social bias, which most white Americans would deny holding.

Unconscious racism often influences the perception of witness credibility. Judges and lawyers bring preconceived and unconscious stereotypes to trials, and this subtle bias can influence a trial's course and outcome. One manifestation of this subtle bias is when judges make credibility decisions based on their life experiences and unconscious stereo-types of witnesses and parties. For example, a judge who subconsciously distrusts black people may tend to disregard their testimony as unreliable and use the hearsay rule to keep it out. Specifically, if a black witness is testifying for a black defendant, the judge may be more likely to exclude the testimony on the basis that it lacks probative value or is unreliable.

In Chambers v. Mississippi, the Supreme Court held that the trial judge misused the hearsay rule to exclude relevant testimony from black witnesses that would have exonerated the black defendant, Leon Chambers. Although the Supreme Court reached the just and proper result in this case, it missed an opportunity to make a clear statement about race and credibility decisions when it ignored the unconscious racism that pervaded the entire investigation and trial. Chambers is an important evidence case, but its importance could have been greater had the Court used its review authority to diminish the effects of racism in the courtroom. Because Chambers' appeal turned on evidentiary decisions made by the trial court, and because nothing is known of the makeup of the jury, this paper focuses on the prejudice of judges with respect to credibility determinations, their role as evidentiary gatekeepers and how this affects the fundamental right to a fair trial of minority criminal defendants.

The goal of the hearsay rule is to eliminate irrelevant and unreliable evidence and prevent the jury from basing its decision on improper information. Yet, unconscious prejudices exacerbate this already imprecise process. However, an increased awareness by judges and lawyers of how racial stereotypes creep into trials is one way to prevent prejudicial credibility judgments from hindering the adversarial process and jeopardizing a defendant's right to a fair trial.

Chambers is a clear example of how race can cloud a hearsay analysis and warp the fairness of a trial. The Supreme Court's opinion made a clear statement about the parameters of the hearsay rule and its proper use. However, it failed to address how race created the error in the first place.

Part II of this paper recounts the facts in Leon Chambers' case and explains why they are important in analyzing the Court's opinion from a racial perspective.

Part III explains how race affects witness credibility using historical examples.

Part IV examines how the hearsay rule allows credibility prejudice to bar the admission of reliable evidence.

Part V analyzes the Chambers facts from a critical race theory perspective. Finally,

Part VI demonstrates how the Supreme Court's opinion in Chambers ignores the role of racial bias in the outcome of the trial.