abstract. Since 2020, when mass protests against racism swept across the United States, scholars, lawyers, and the general public have become increasingly aware that racism permeates society and the criminal legal system, from overt racial animus to the nuanced effects of structural racism. Demonstrating the influence of racism is therefore vital to the practice of criminal defense, yet many attorneys do not know how to prove racism in court. We surveyed over seven hundred criminal-defense attorneys across the United States, and nearly half had never heard of expert witnesses testifying or submitting written reports on racism—what we call “antiracist expert evidence.” This finding would be unremarkable if such experts were unhelpful, but nearly ninety percent of surveyed attorneys expected that antiracist expert evidence would benefit their criminal-defense practices.

This Article is the first to provide an empirical, theoretical, and doctrinal examination of the use of expert testimony to prove racism. It first conceptualizes, categorizes, and instantiates six different expressions, manifestations, or mechanisms of racism relevant to criminal defense: (1) racist affiliations and views; (2) racist language, sounds, and imagery; (3) racial stereotypes; (4) racial disparities; (5) implicit racial bias; and (6) the impact of racism on health and behavior. It next presents and analyzes survey results showing criminal-defense attorneys’ levels of familiarity with antiracist expert evidence, their perceptions of its utility, and the barriers they anticipate to its introduction. This Article then examines these barriers and identifies means of overcoming them. By elevating the voices of criminal defenders and reviewing federal and state case law, we seek to spark the collective imagination about how antiracist expert evidence can help level the evidentiary playing field for criminal defendants.

authors. Jasmine B. Gonzales Rose is Professor of Law, Boston University School of Law. Asees Bhasin is Visiting Assistant Professor of Law and Donald Gaines Murray Fellow, University of Maryland Francis King Carey School of Law. Spencer Piston is Associate Professor of Political Science, Boston University. We would like to thank I. Bennett Capers, Edward K. Cheng, Erin R. Collins, Caitlin Glass, Neda Khoshkhoo, Anna Roberts, Christopher Robertson, and Jocelyn Simonson for their insightful comments and feedback on drafts of this Article. We are grateful to Kate Blankinship, Julian A. Burlando-Salazar, Gemma del Carmen, Leo Houts, and Crystal Hsu for their excellent research assistance, and Caty Taborda for initial survey-design feedback. Finally, we deeply appreciate the editors of the Yale Law Journal for their diligent and thoughtful work in editing and improving this Article.

Introduction

Evidence law has long imposed unequal evidentiary burdens on people of color by silencing proof of their experiences of racism. In the nineteenth century, many states had race-based witness-competency rules that prevented Black, Indigenous, Mexican, and Asian people from testifying at trial either entirely or against white parties.1 Similarly, enslaved people could not testify against white people.2 The evidence provisions of the Federal Fugitive Slave Act of 1850 prohibited alleged fugitive enslaved people from testifying in any trial or fugitive-slave hearing.3 Without the ability to testify, people of color were deprived of evidence to support their claims of and defenses against horrific racial wrongs like hate violence and enslavement. This deprivation meant that parties of color and those representing their interests had a significantly harder time meeting their evidentiary burden—the obligation to produce evidence to raise and prove issues at trial. While race-based witness-competency rules and the Fugitive Slave Act have long since been abolished, parties of color still experience an unequal evidentiary burden when they want to prove the existence, effect, or impact of racism.

One explanation for this unequal evidentiary burden is the role white normativity plays in law enforcement and criminal prosecution. Experiences or perspectives traditionally associated with being white are assumed to be the norm that applies to everyone.4 Evidence that accords with these experiences or perspectives receives implicit judicial notice or is accepted with less searching scrutiny, while evidence that does not must overcome rigorous and, at times, misapplied evidentiary standards.5

Here are six examples of white-normative assumptions, followed by a counter perspective that accounts for the pervasive experiences of Black, Brown, and Indigenous people in the United States.

Prosecutors might present each of these white-normative assumptions to a court or jury as commonsense conclusions without presenting evidence. One of us has argued that when judges automatically accept these racialized assumptions, they take “implicit judicial notice” of them.6 By contrast, when people of color want to prove the fact of their racialized realities—proof of their lived experiences of racism—they must secure and introduce evidence.7 This amounts to an unequal evidentiary burden regarding fundamental questions of fact.

Indeed, the assumptions provided above raised several factual questions:

• Did a defendant avoid police due to fear of racial profiling or violence?

• Who is a “reasonable person,” and how do they act in police encounters?

• Do certain symbols or language indicate racial bias?

• Do rap lyrics tend to prove criminal activity, or is the prosecution playing on racial stereotypes?

• Was a police search or interaction racially motivated or indicative of systemic bias?

• Are cross-racial witness identifications reliable?

• Has racism—whether individual or structural—impacted the underlying facts, policing, or prosecution in the case? (This is a fundamental question, implicit in the questions above.)

Each of these questions calls for evidence of racism to be presented and explained to the jury.

Evidence of racism can come in different forms. Judicial notice is appropriate when the fact of racism is so indisputable that the court can enter it into the record without any formal presentation of evidence.8 Courts have taken judicial notice of racism in some cases, such as a history of Black people’s exclusion from craft unions,9 the Ku Klux Klan’s history of violence and racial harassment,10 the “social consequences of ethnic humor,”11 the existence of racial hatred in a county,12 and a history of racial discrimination in voting.13 For facts that do not meet the bar for judicial notice, evidence of racism can be presented through fact witnesses, lay witnesses, and expert witnesses. Fact witnesses can testify about things they have observed or experienced, including racism. Lay witnesses can testify about opinions they have formed based on their perceptions, such as those formed through lived experiences of racism or within a community of color.14 And finally, expert-witness evidence is allowed when specialized knowledge would help the factfinder understand the evidence or determine a fact at issue.15 Each of these forms of evidence is important and—as a matter of constitutional due process and fairness—should be made available to criminal defendants where warranted.

This Article focuses on the use of expert evidence to prove racism because it is underexplored in scholarship, is underutilized by counsel, and in some cases may be needed to help juries understand racism. For instance, in the six situations detailed above, a Black, Latine, Indigenous, or similarly racially minoritized criminal defendant might need an expert witness to explain:

• studies that show how the prevalence of racial profiling and police violence in a community engender negative police-community relations, which might clarify the reasons for a defendant’s flight from a police officer;

• how racial trauma related to prior police encounters might influence a defendant’s behavior during a police interaction;

• how a police officer’s tattoo or social-media memes indicate affiliation with a white-supremacist group;

• how the genre of rap music utilizes metaphor, alter-ego personification, and exaggeration, which are unfairly mistaken as evidence of involvement in crime;

• statistics and policy analysis that demonstrate that a police department disproportionately targets people of color for stops and searches; or

• the potential unreliability of cross-racial eyewitness identification.

Experts from the social sciences, humanities, behavioral-health sciences, or other academic or practice areas could provide data, research, or an explanation of evidence that counters white-normative assumptions or that otherwise tends to prove the existence, effect, or impact of racism in a case.

Since the summer of 2020, when mass protests against racism reverberated across the country, scholars, lawyers, and the general public are increasingly aware that racism exists in the criminal legal system and broader society in a variety of individual and structural forms.16 Yet many attorneys do not know how to prove racism in court. Attorneys are particularly unfamiliar with using expert witnesses to prove racism—what we call “antiracist expert evidence.” This is cause for concern because racism too often impacts the context, underlying facts, investigation, policing, prosecution, and sentencing in criminal cases.

We surveyed over seven hundred criminal-defense attorneys across the United States, and aside from implicit-bias evidence, nearly half of the respondents had never heard of the types of antiracist expert evidence we asked them about.17 This would be unremarkable if such experts were not considered helpful, but most attorneys surveyed—approximately 90%18—stated that antiracist expert evidence would benefit their criminal-defense practice.

This Article is the first piece of scholarship to provide a theoretical, doctrinal, and empirical examination of the use of expert witnesses to prove racism. It presents and analyzes survey results exploring criminal-defense attorneys’ knowledge about antiracist expert evidence, their perceptions of its utility, and the barriers they anticipate to its introduction. This Article aims to spark the collective imagination about the potential uses of such evidence to bring about more racial equity in trial outcomes. To this end, the Article conceptualizes, categorizes, and instantiates antiracist expert evidence. It also identifies potential obstacles to the introduction of such evidence and provides suggestions that could make antiracist expert evidence more accessible.

Although the surveyed defense attorneys overwhelmingly believed that antiracist expert evidence could benefit their criminal-defense practices, they also recognized several potential barriers to its use. These obstacles included cost, availability, jurors’ resistance, judges’ attitudes, and overly narrow judicial interpretations of the rules and standards of admissibility for expert evidence, especially the relevance of evidence of racism. These voices from the trenches of criminal defense illustrate that evidence of racism—particularly in its more structural, unconscious, and covert forms—is difficult for criminal defendants to introduce at trial, despite its utility. This evidentiary imbalance reinforces racial disparities outside the courtroom and is disconcertingly evocative of historical evidentiary practices that silenced and prevented people of color from proving racism in court.

The Article proceeds in three Parts. In Part I, we provide a taxonomy of our subject. Antiracist expert evidence stands to prove at least six different expressions, manifestations, or mechanisms of racism: (1) racist affiliations and views; (2) racist language, sounds, and imagery; (3) racial stereotypes; (4) racial disparities; (5) implicit racial bias; and (6) the impact of racism on health and behavior. We outline how expert witnesses have already been used to introduce and explain these types of antiracist evidence in state and federal trials, and we highlight the relevance of this evidence to issues of fact in the cases where it was introduced. Then, in Part II, we lay out the findings of our national survey of criminal-defense attorneys. In addition to exploring attorneys’ familiarity with and perceptions of the utility of antiracist expert evidence, we use examples shared by the attorneys to highlight the scope and value of such evidence. Finally, in Part III, we examine barriers to the introduction of antiracist expert evidence, as illustrated through survey responses and case law. We offer recommendations to overcome these barriers and promote wider use of antiracist expert evidence.