Confronting Racist Prosecutorial Rhetoric at Trial.

AuthorBowman, Mary Nicol

CONTENTS INTRODUCTION I. HOW AND WHY IS RACIST PROSECUTORIAL RHETORIC SO PROBLEMATIC? A. Overview of Foundational Concepts for Understanding Racist Prosecutorial Rhetoric B. How Race Affects Juror Decision-Making 1. Ingroup versus Outgroup Bias 2. The Power of Stereotypes 3. Priming for Prejudice 4. Framing and Recency Bias 5. Neuroscience and Neurorhetoric 6. Group Decision-Making Can Help But Does Not Cure Individual Biases II. COURTS' CURRENT APPROACHES ARE INEFFECTIVE AT DEALING WITH RACIST PROSECUTORIAL RHETORIC AT TRIAL A. Prosecutors Use Racist Prosecutorial Rhetoric B. Appellate Courts Often Refuse to Recognize Improper Language C. Appellate Procedural Doctrines Prevent Meaningful Remedies III. FOCUS ON TRIAL COURTS FOR SOLUTIONS ABOUT CONTROLLING BIASES A. Trial Courts are Better Positioned than Appellate Courts to Spur Change B. Trial Courts Should Focus on Prosecutors C. Overview of Debiasing Strategies from Social Science Research IV. SPECIFIC PROPOSED SOLUTIONS A. Create an Effective Foundation 1. Use Voir Dire to Make Race Salient 2. Give Jury Instruction(s), including a Debiasing Instruction, Before Opening Statements B. Prevent Racist Prosecutorial Rhetoric 1. Use a Checklist to Clarify What Language is Potentially Racist a. Prohibit Use of Racial Slurs and Explicit References to Stereotypes b. Coded Language to Invoke Race or Stereotypes c. Balancing the Probative Value Against the Prejudicial Effect of Racial Language 2. Require a Motion in Limine by Prosecutors for Proposed References to Race on a Case-by-Case Basis C. Responses When Problems Arise at Trial 1. Act Sua Sponte When a Problem Occurs Rather Than Requiring an Objection 2. Admonish the Prosecutor in Front of the Jury for Appealing to Bias and Give a Specific Curative Instruction 3. Grant a Mistrial for Particularly Serious or Repeated Violations During the Same Trial D. Track Repeat Violators Across Trials CONCLUSION APPENDIX A: POSSIBLE CHECKLIST FOR COURTS TO USE IN PROHIBITING RACIST PROSECUTORIAL RHETORIC: INTRODUCTION

"Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice." (1)

"Theories and arguments based upon racial, ethnic and most other stereotypes are antithetical to and impermissible in a fair and impartial trial." (2)

We are in a moment of reckoning about the influence of racial bias on the criminal justice system. (3) To give only a few examples, increased scrutiny is being placed on racially-motivated police brutality and other misconduct, (4) and on the racial dimensions of mass incarceration. (5) The United States Supreme Court recently described racial bias as "a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice." (6) In the last few years, the Court has frankly acknowledged ways that individual actors' racial biases can affect the criminal justice system, including through jury selection (7) and race-based arguments during jury deliberation. (8) And earlier this year, the Court acknowledged the "clear" racist origins of a structural issue, the use by two states of nonunanimous jury verdicts in criminal cases. (9) An overlooked piece of this reckoning, however, is the racist rhetoric (10) that prosecutors sometimes use in arguing cases.

The United States Supreme Court has stated that "the Constitution prohibits racially biased prosecutorial arguments." (11) However, that statement was made in a footnote of a case that did not specifically address prosecutorial misconduct. (12) The Court has never squarely focused on racially biased prosecutorial arguments, so it has not clarified how courts should analyze this issue. (13) While Justice Sotomayor in 2013 rebuked a prosecutor for "tapp[ing] a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation," she did so in an order denying certiorari. (14) The Court's failure to take a case that squarely presents this issue has left lower federal courts, state courts, and commentators struggling to provide a useful framework for analyzing these issues, or even to identify what part of the Constitution they violate. (15)

My earlier article on prosecutorial misconduct, Mitigating Foul Blows, offered a framework to try to combat the "helpless piety" displayed by courts when they are quick both to condemn prosecutorial arguments as improper and to affirm resulting convictions based on procedural doctrines such as harmless error. (16) However, that article did not address whether racist prosecutorial rhetoric should be treated differently than other types of prosecutorial misconduct. This article concludes that it should. (17)

More specifically, this article relies on social science research to argue that courts should reevaluate their analysis of prosecutorial appeals to race, and this article focuses on trial courts for solutions. Specifically, Part I provides foundational information needed to understand racist prosecutorial rhetoric and summarizes social science research on how race affects decision-making. (18) Part II explains the inadequate state of current law. It describes modern case law demonstrating that prosecutors are using racist rhetoric, (19) explores the disconnect between the social science research and courts' treatment of that rhetoric, and describes the courts' procedural barriers to relief that actually incentivize rather than discourage racist prosecutorial rhetoric. (20)

Part III argues that trial courts, not appellate courts, should be the focus for solutions to racist prosecutorial rhetoric. It also explains why trial courts should focus specifically on prosecutors and provides an overview of debiasing strategies. Part IV builds on this foundation by offering specific solutions that trial courts should implement. That section recommends using voir dire and early jury instructions to prime jurors for egalitarianism rather than susceptibility to prejudice. Most significantly, it argues that trial courts should aim to prevent racist prosecutorial rhetoric through use of a checklist that would clarify what rhetoric is absolutely prohibited and what rhetoric requires a case-by-case determination of appropriateness. Prosecutors would then need to bring a motion in limine to facilitate those case-specific determinations. Part IV also contains strategies for trial courts responding to problems during trial and a method for tracking violators across multiple trials. The combination of these solutions would help prevent racist prosecutorial rhetoric and minimize harm when it occurs.


    Racial bias "in the jury process can change the course of individual lives, diminish confidence in the justice system, and have profound effects on society." (21) This section presents foundational information needed to understand how racial bias can infect the jury process through racist prosecutorial rhetoric. This section first provides an overview of foundational concepts necessary for understanding racist prosecutorial rhetoric. It then describes various ways in which racist rhetoric affects decision-making.

    1. Overview of Foundational Concepts for Understanding Racist Prosecutorial Rhetoric

      There can be no doubt at this point that racially-charged language affects decision-making in a variety of contexts, including criminal trials, although scholars debate how to conceptualize the way these effects occur. (22) Much of the legal scholarship over the last twenty or more years has focused on "implicit bias," sometimes called "unconscious racism." (23) Implicit biases "are composed of well-learned associations that reside below conscious awareness and can automatically drive behavior in a manner that is inconsistent with one's personal attitudes[,]" while "[e]xplicit biases are the beliefs that people consciously possess and intentionally express...," (24) Other scholars, however, argue that the current focus on implicit bias minimizes the importance of overt or explicit bias and suggest that focusing too heavily on implicit bias is part of the problematic but widespread view that America is now "postracial." (25) Still other scholars reject a "rigid dichotomy" between explicit and implicit biases, noting instead that "implicit bias measures might be revealing concealed [but conscious] beliefs rather than unconscious ones." (26)

      This article does not seek to resolve these broader debates. Instead, it takes the position that each of these approaches, as well as others discussed below, provide meaningful lenses through which to understand how and why racist prosecutorial rhetoric affects criminal trials. Despite the common tendency to rely on sweeping characterizations, "attitudes and beliefs about race have long been internally complex and have only become more so ...," (27) This article therefore discusses both the cognitive states of individual actors and the larger structural racism issues. (28)

      This article also focuses on strategies for controlling and minimizing the effects of bias, regardless of whether that bias is implicit or explicit. Some scholars critique implicit bias scholarship as wrongly suggesting that implicit bias is uncontrollable, when in fact social psychology research provides several effective strategies for controlling implicit bias. (29) Furthermore, research indicates that treating bias as unconscious makes it easier for people to avoid taking responsibility for controlling their biases. (30) Thus, this article uses the term "implicit bias" rather than "unconscious bias" to help create the foundation for concrete actions to mitigate these biases, and it draws on the extensive social science research that provides tools for doing so.

      Furthermore, in exploring these issues, the focus must be on racist rhetoric, not racist prosecutors--i.e., on the language used rather than on the moral culpability of the...

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