Skip to Navigation
University of Pittsburgh
Print This Page Print this pages

February 2, 2017

Do evidence laws perpetuate racism in the courtroom?

Jasmine Gonzalez Rose Photo by Tom Altany/Photo Service

Jasmine Gonzalez Rose, Photo by Tom Altany/Photo Service

Thanks to the proliferation of courtroom dramas on television and in film, we all know something about evidence law, and we all think we know how it works.

But Pitt law faculty member Jasmine Gonzalez Rose noted during the spring term’s first lecture at the Center for Race and Social Problems on Jan. 23: “At trial, there is not independent investigation of the truth.” Instead, rules allow certain evidence to be presented to juries, and those same rules keep other evidence out, said Rose in her lecture, “Objection! How Evidence Law Perpetuates Racism in the Courtroom.”

Attorneys use evidence law to establish the story of a defendant’s guilt or innocence, she said. “These procedure rules … have an effect on traditionally subordinated populations.”

While the language of federal and state rules of evidence may be race-neutral, those rules are not applied irrespective of race, she contended: In courtrooms across the U.S., certain types of evidence are kept out, particularly evidence that would show a defendant’s action is based on a different “racialized reality.”

Different races live different realities side by side, she said. For an example, she described her own experience as a Latina shopping in a clothing store with a Latina friend while non-Latina white acquaintances were shopping nearby. Rose and her companion had their bags searched and weren’t allowed to be together in the changing rooms, she reported, while the white women were not similarly restricted.

“‘Isn’t this the greatest place to shop?’” she recalled one of the white women saying as they exited together.

“Yeah, that’s your reality,” she replied.

Similarly, whites may pass a police officer without feeling trepidation, based on neutral or positive experiences with police. An African-American man, however, seeing a police officer approaching, may feel apprehension at the prospect at being profiled, stopped and searched, or otherwise accused of a crime, as happens more often to people of color, Rose noted.

The same difference in life experiences plays out in America’s courtrooms, she said: “The racialized reality of white people is fast-tracked to the jury without any proof, while the racialized reality of people of color is filtered out” by courts’ evidence rules.


Rose emphasized that she was talking about real subtleties — not overt racial hatred but unconscious bias and longtime assumptions that white lawyers, juries and judges experience and then assume is the norm for everyone.

At one time, evidence rules were blatantly biased. In the 18th and 19th centuries, race-based rules of evidence prohibited people of color, including Latinos, Asians and Native Americans, from testifying against whites or in cases where whites were a party. For instance, in the 1850s case of People v. Hall, a white man was found guilty in the death of a Chinese miner in California, following testimony by other Chinese miners, the only witnesses. But on appeal, the Supreme Court of California decided that the state evidence rule, which prohibited blacks and Latinos from testifying against whites, should be broadened to include all people of color, and the white man’s conviction was overturned.

“These rules weren’t just discriminatory, they withdrew the protection of the law” from people of color, Rose said.

While those laws no longer exist, she said, “I feel like there are some very real similarities with our current system that need to be revealed. The courtrooms really should be a refuge from societal discrimination, and too often they are not.”

White norms have become authoritative facts when they are not, Rose said.

Whites may not even be aware of the collective benefit they derive from the way our legal system favors evidence that is proffered by whites and disfavors evidence from people of color, she said. For instance, the fact that someone fled upon seeing police can be offered as circumstantial proof of guilt: “The theory is that … only the guilty run,” Rose noted.

But is a defendant’s flight from police really proof of guilt? It may be a more common assumption among blacks than whites that a police encounter may end badly and should be avoided.

The idea that running from police is not a normal reaction to police — that innocent people don’t run — is thus an assumption “based on white beliefs and norms,” she said.

Rose cited studies that show whites are more likely than other racial groups to trust police; that whites are over-represented in police ranks; and that whites enjoy preferential treatment by police: they are less subject to force or arrest even if they are statistically more likely to commit certain crimes, such as smoking pot.

“Black and brown communities in many places have become de facto police states,” Rose said, where “heavy police presence is really invading day-to-day life,” and where activities that would not routinely result in arrests of whites, such as being in a park after dark, might lead to incarceration.

Residents of such poorer communities also have less ability to pay fines or miss work to attend court, resulting in more people of color with low-level warrants for arrest or prior convictions for minor offenses, another reason to avoid a police encounter that whites may not share.

African Americans and Latinos similarly are less likely to have state-sanctioned forms of identification, Rose added, recalling that she and her cousin both have been detained temporarily for citizenship checks, even though their family members have been U.S. citizens since the Treaty of Guadalupe ceded New Mexico and parts of other western states to the U.S. in 1848.


There are a few indications that the court system is starting to recognize racialized reality, she said. In Commonwealth v. Warren, a Massachusetts case concerning whether reasonable suspicion justifies police in stopping and searching people, the state’s Supreme Court ruled that fleeing from police is not necessarily proof of guilt.

However, substantial evidentiary barriers for introducing such evidence remain.

Rule 609 of the federal rules of evidence, for instance, states that the truthfulness of any witness can be impeached by the mention of prior convictions.

So the idea that “innocents don’t run,” promulgated by prosecutors and accepted by judges and juries, is actually “evidence of racialized reality,” she said.

“Flight is relevant to proving guilt only if it deviates from the norm,” she added. “If it is not abnormal, it is not relevant” to cite flight as proof of guilt. “Evidence that is not relevant is not admissible.

“Racial reality is different than cultural perspective,” Rose noted; whites aren’t more trusting or more law-abiding in general than people of color. Instead, racial reality “is a product of a privileged racial status that has been experienced.”

Thus, she argues, the idea that “only the guilty run” is a case of implicit judicial notice, when judges recognize and admit into evidence facts that are too well known and too authoritative to be disputed.

But how does a criminal defendant of color introduce evidence about racialized reality into court?

Non-experts can be barred from such testimony by federal rule 701 as unqualified, and expert witnesses often cost $300-400 an hour, a cost that is prohibitive for many.
So what can be done?

One solution, Rose says, would be continuing legal education courses on race-based reality for judges and lawyers. She also proposes using one federal evidence rule, No. 403, to better effect. Since it notes that evidence can be excluded if it shows “unfair prejudice” more than it proves a case, she proposes rule 403 be interpreted by judges to recognize conscious and unconscious racism in all its forms.

—Marty Levine 

Leave a Reply