In the Merritt & Simmons textbook, please read Chapters 25, 26, & 27. There are meaningful distinctions between the Third and Fourth editions. 

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Remember the defense motion in the Casey Anthony case, seeking to exclude evidence of Casey’s “Beautiful Life” tattoo? The portions you read before included arguments based on relevance and Rule 403.  This portion of that same motion makes an argument based on Rule 404(a) and 403. 

(I can't upload a pdf to this site, so the document is posted on Moodle under "Class 15.")

Please go to our Moodle course page, where you can answer Comprehension Questions #15.

In the Merritt & Simmons textbook, please read Chapters 28 & 29. There are no meaninful distinctions between the Third and Fourth editions.

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

INTRODUCTION

Federal Rule of Evidence 404 severely limits the government’s ability to offer evidence of a defendant’s character trait of violence to prove action in conformity with that trait on the occasion in question.¹ The Rule states that such character evidence is generally inadmissible when offered to *322 prove propensity.² The Rule also allows the government to offer evidence of an alleged victim’s character for peacefulness in homicide cases where the defendant asserts the self-defense privilege.³ Although criminal defendants may offer character evidence under limited circumstances, Rule 404 creates a significant disincentive for doing so. Where a defendant offers evidence of an alleged victim’s character trait to prove action in conformity therewith, this decision not only opens the door for the prosecution to offer positive character evidence on behalf of the victim but it also allows the prosecutor to offer bad character evidence against the defendant.⁴ Similarly, if the government offers evidence of a homicide victim’s character for nonviolence to rebut a claim of self-defense, doing so opens the door to the introduction of the victim’s bad character evidence.⁵

Now, consider the widely held stereotype or belief that African-Americans are inherently violent.⁶ Scholars sometimes deem beliefs or biases like this one to be “implicit” in that they often exist on a subconscious level.⁷ The individuals who harbor such biases may not even know they are doing so.⁸ The implicit belief that African-Americans are inherently violent can be used as both a sword and a shield in a trial concerning a violent criminal act. Rather than offering inadmissible evidence of a Black defendant’s character for violence, the government can instead offer evidence of the defendant’s stereotypical Blackness, thereby playing upon the jurors’ implicit biases to establish the guilt of the defendant. Likewise, a non-Black defendant need not offer evidence of a Black victim’s violent character to support a claim of self-defense. Rather, the victim’s stereotypical Blackness is sufficient character evidence. Because stereotypical Blackness implies a propensity for violence (among other character traits), a non-Black defendant can benefit from this character evidence without having to take the risk that his or her own violent past might be offered at trial. The State v. George Zimmerman⁹ trial is a recent example of this strategy.¹⁰

While most scholars acknowledge the existence of certain stereotypes and biases against African-Americans and even recognize that those biases may have an impact on our justice system, the covert and silent nature of implicit biases makes them more difficult to ferret out. How can a trial *323 judge successfully stop jurors from considering certain racial stereotypes when many of the jurors do not realize that they harbor those racial stereotypes? This Article will explore solutions that may serve to eliminate or rebut the unspoken evidence that is often at play when African-Americans navigate through our justice system. Part I of the Article will focus on the development of the Federal Rule of Evidence that prohibits the use of propensity evidence to prove action in conformity therewith. Part II of the Article will define the concepts of implicit bias and transparency phenomenon and explore how those concepts can come together to create evidence of stereotypical Blackness. Part III of the Article will discuss the use of Blackness as character evidence in the State v. George Zimmerman trial. Lastly, Part IV of the Article will analyze possible solutions that may eliminate jurors’ consideration of evidence of stereotypical Blackness or at least reduce its probative value.

I. FEDERAL RULE OF EVIDENCE 404(A) AND ITS RATIONALE

A. The Rule

Federal Rule of Evidence (F.R.E.) 404(a) states:

Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.¹¹

Subsection (1) of the Rule articulates the general prohibition against the use of propensity evidence to prove action in conformity with a given *324 character trait. For example, if Donald the Defendant were on trial for assault and battery against Victor the Victim, Rule 404(a)(1) would generally prohibit the prosecution from offering evidence, through either reputation or opinion testimony, that Donald is a violent person.¹² Subsection (2) states two exceptions to the general rule prohibiting the use of propensity evidence. In the context of criminal cases only, the defendant may offer evidence of any relevant character trait. For example, Donald may choose to offer reputation or opinion testimony that demonstrates his peaceful character; however, if he does so, he invites the prosecution to rebut his evidence of peacefulness with evidence of his violent character. The defendant may also offer evidence of the victim’s relevant character trait subject to Rule 412, the rape shield law.¹³ For example, Donald may offer evidence, through opinion and reputation testimony, that Victor is a violent person; however, if Donald offers this character evidence, then he “opens the door” or makes admissible any evidence demonstrating Victor’s character for peacefulness or Donald’s character for violence.¹⁴ Moreover, in a homicide case where the defendant has asserted the self-defense privilege, the prosecution may offer evidence of the alleged victim’s peaceful character to rebut the defendant’s claim that the victim was the first aggressor.¹⁵ Finally, subsection (3) provides that evidence of a witness’s character for truthfulness or untruthfulness may be admissible pursuant to Rules 607, 608, and 609.¹⁶

*325 1. The Rationale Supporting the Prohibition

Today, Rule 404(a) prohibits the use of propensity evidence to prove action in conformity therewith despite the fact that an individual’s prior behavior carries some probative value. F.R.E. 401 defines relevant evidence as evidence having “any tendency to make a fact more or less probable than it would be without the evidence.”¹⁷ Thus, if Donald, the defendant in our hypothetical assault and battery trial, has a general reputation in his community as a violent, aggressive, and confrontational person, his reputation would be relevant evidence in his current trial because it increases the likelihood that he committed the assault and battery with which he is charged. Despite the obvious relevance of the evidence, Rule 404(a) calls for its exclusion in an effort to preserve the presumption of innocence.¹⁸ The prohibition against the government’s use of propensity evidence is a corollary to the presumption of innocence in that no such presumption can exist if the defendant is proven guilty using evidence of his or her violent nature.¹⁹

Another justification for the prohibition against propensity evidence can be found in Rule 403, which calls for the exclusion of evidence where its probative value is substantially outweighed by the danger of unfair prejudice.²⁰ Rule 404(a)’s prohibition against propensity evidence likely reflects the drafters’ application of Rule 403’s balancing test. Thus, despite the probative value of propensity evidence, the danger of unfair prejudice associated with such evidence will always outweigh its probative value, at least when the evidence is offered by the government to establish that the defendant acted in conformity with his or her character trait on the occasion in question.

The unfair prejudice associated with propensity evidence is varied. Most obviously, there is a risk that the jury will conclude that the defendant *326 has a “proclivity for criminality” and thereby assume that the defendant acted in conformity with that character trait on the relevant occasion.²¹ Similarly, the jury may conclude that because the individual exhibited a particular character trait in the past, he or she must have also done so on the occasion in question. Essentially, the jury may conclude, “If she did it before, she’ll do it again.” Another risk is that the jury will convict in order to punish the defendant for his or her prior crimes, even where the government has failed to prove that the defendant committed the crime with which he or she is charged.²² In this instance, the evidence should be excluded due to the risk that the jury may use the evidence to make a decision based on emotion or passion.²³

2. The Exceptions to the Prohibition Against the Use of Propensity Evidence

Despite the risks discussed above, Rule 404(a)(2), called the “mercy rule” by some scholars,²⁴ allows for the admissibility of propensity evidence in criminal cases where: (1) the defendant offers evidence of his or her pertinent character trait; (2) the defendant offers evidence of an alleged victim’s pertinent character trait subject to the rape shield law; or (3) the government in a homicide case offers evidence of an alleged victim’s character trait of peacefulness to rebut a claim of self-defense.²⁵ In each of these scenarios, the party against whom the evidence is offered may rebut the evidence with additional propensity evidence.²⁶

The 404(a)(2) exceptions exist for several reasons. First, unlike negative propensity evidence that might be offered against a defendant by the government, positive propensity evidence, when offered by the accused, is not likely to result in unfair prejudice.²⁷ For example, if our defendant Donald offers evidence to establish his peaceful character to show that he *327 did not assault Victor on the occasion in question, there is very little risk that the jury will give too much weight to this evidence by acquitting Donald in spite of evidence that clearly establishes his guilt. If Rule 403’s balancing test is applied to a defendant’s positive character evidence, the probative value of the evidence would not be substantially outweighed by the danger of unfair prejudice. Similarly, evidence of an alleged victim’s peaceful character would not result in unfair prejudice to the defendant, especially when offered to rebut the defendant’s claim that the victim was the first aggressor.

Second, Rule 404(a)(2)’s exceptions are as much a part of the American legal tradition as the prohibition against propensity evidence itself.²⁸ The Federal Rules of Evidence Advisory Committee noted that Rule 404(a)(2)’s exceptions were “so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy of the evidence.”²⁹ The Committee’s decision to codify the 404(a)(2) exceptions decreases the risk that a defendant’s Sixth Amendment confrontation or due process rights might be violated.³⁰

Finally, the Rule 404(a)(2)(A) and (B) exceptions may exist simply to provide additional assistance to criminal defendants. The exceptions likely reflect the drafters’ decision “to allow the criminal defendant with so much at stake and so little available in the way of conventional proof to have special dispensation to tell the fact-finder just what sort of person he really is.”³¹

While Rule 404(a) limits the admissibility of character evidence offered against defendants or alleged victims, my hypothesis is that the application of implicit bias, transparency theory, and racial stereotypes creates an alternative method for offering propensity evidence that might otherwise be inadmissible or quite risky if offered pursuant to the Rule. With the overall framework and rationale supporting Rule 404(a) in mind, I will now explore the concepts of implicit bias and transparency theory and discuss the effect that these phenomena have in the criminal cases involving African-Americans.

*328 II. IMPLICIT BIAS, TRANSPARENCY THEORY AND RACIAL STEREOTYPES AGAINST AFRICAN-AMERICANS

In order to fully understand the manner in which common stereotypes of African-Americans take on the role of character evidence at trial, it is important to explore two concepts that, in my opinion, are at play whenever a criminal case involves an African-American defendant or victim--implicit bias and transparency theory.

A. Implicit Bias

A great deal of social science research and legal scholarship has focused on the concept of implicit bias. According to Judge Mark W. Bennett,³² who has researched the effect of implicit bias on jurors, implicit biases are “the plethora of fears, feelings, perceptions, and stereotypes that lie deep within our subconscious, without our conscious permission or acknowledgement.”³³ Unlike explicit biases, which are open, overt, and generally disavowed by society, implicit biases exist on a subconscious level. As a result, we often act based on our implicit biases without any awareness that we harbor them.³⁴ Social scientists believe that we develop implicit biases due to “repeated negative associations--such as the association of a particular race with crime--that establish neurological responses in the area of the brain responsible for detecting and quickly responding to danger.”³⁵ Thus, with regard to African-Americans, implicit biases are likely formed due to an institutionalized narrative in our society that Blacks are intellectually inferior to Whites, inherently violent, and more likely to commit crimes than Whites.³⁶

*329 1. The Implicit Association Test

The most well-known and highly regarded measure of implicit bias is the Harvard Implicit Association Test (“IAT”).³⁷ Developed by researchers from Harvard University and the University of Washington in the 1990s, the IAT attempts to measure various types of biases, including biases based on race, gender, age, disability, and religion.³⁸ The IAT’s methodology has been analyzed over the years, and the scientific community has generally found the test to be a valid measure of implicit bias.³⁹

Currently, fourteen IATs are available on the Internet, including a Race IAT.⁴⁰ The Race IAT seeks to measure whether participants hold an implicit bias against African-Americans.⁴¹ Data collected from the Race IAT indicate that approximately 88 percent of White Americans harbor some level of implicit bias against African-Americans.⁴² Interestingly, the data also indicate that 48 percent of African-Americans show a bias in *330 favor of White Americans.⁴³ While these statistics are startling, they should not be read to suggest that 88 percent of Whites and 48 percent of Blacks hold racist attitudes toward African-Americans; however, several scientific studies have found that IAT results are at least a moderate predictor of behavior.⁴⁴ Thus, in some instances, individuals who hold implicit biases against African-Americans may act upon those biases when engaging in decision-making, including decisions related to guilt or innocence.

2. Juror Bias

For many years, social scientists and legal scholars have asserted that White jurors are biased against African-Americans. Professor Sheri Lynn Johnson argues that the race of a witness has a direct impact on whether jurors will find the witness to be credible.⁴⁵ Johnson asserts that race influences jurors’ credibility assessments in large part due to the history of race relations in the United States.⁴⁶ According to Johnson, race may improperly influence credibility determinations even for White fact-finders “who do not seem to manifest any animosity, racial or otherwise, toward African American litigants.”⁴⁷ Similarly, legal scholars have argued that jurors are less likely to make accurate lie-detecting assessments of witnesses who are of a different race.⁴⁸ According to one scholar, White jurors’ inability to make accurate credibility judgments for African-American witnesses and defendants may explain the high number of wrongful convictions of African-American defendants.⁴⁹

Empirical evidence supports the existence of White juror bias against African-Americans.⁵⁰ A study conducted by Professors Samuel Sommers and Phoebe Ellsworth revealed that White jurors are more likely to be biased against African-American defendants and that this bias is more likely to be present in cases where race is not made salient, or openly discussed, at trial.⁵¹ In another study, Professor Justin Levinson found that implicit *331 racial bias affects jurors’ recall of relevant case facts.⁵² He noted that “participants who read about an African-American story character were significantly more likely to remember aggressive facts from the story than participants who read about a Caucasian story character. Other results indicated that these racial memory biases were not related to explicit racial preferences.”⁵³ This research provides further support for the notion that, in today’s “post-racial” society where Whites largely disavow explicit expressions of racial bias, juror bias against African-Americans likely exists on a subconscious level. 

B. Transparency Theory

While White jurors may be influenced by their implicit biases when acting as fact-finders in criminal cases involving African-Americans, they may be equally affected by a doctrine called “transparency theory.”⁵⁴ Coined by Professor Barbara Flagg, a Caucasian woman, the term “transparency theory” or “transparency phenomenon” is defined as “the tendency of whites not to think about whiteness, or about norms, behaviors, experiences, or perspectives that are white-specific.”⁵⁵ Flagg argues that Whites possess a significant societal privilege in that they do not often have to think of themselves in terms of their race.⁵⁶ Instead, Whites externalize race, only reflecting on their Whiteness when comparing themselves to people of color.⁵⁷ Flagg posits that Whites are usually unconscious of their Whiteness because it is the racial norm, while people of color are racially distinctive and therefore a departure from the norm.⁵⁸ Flagg states that, “[T]o be white is not think about it.”⁵⁹ For these reasons, Whiteness is “a transparent quality when whites interact with whites in the absence of people of color.”⁶⁰

At first glance, it would seem that Whites’ failure to recognize their Whiteness should be of no consequence to African-Americans; however, Flagg’s next proposition should create great concern for African-Americans involved in criminal trials. According to Flagg, because Whites are not conscious of their Whiteness in most circumstances, they are similarly not conscious of certain White-specific norms that they (and society as a *332 whole) impose upon non-Whites.⁶¹ Whites mistakenly believe these White-specific norms are racially neutral and will accordingly make decisions and judgments based on non-Whites’ ability or willingness to assimilate to these norms.⁶² When non-Whites fail to act in accordance with these White-specific norms, they may face discrimination at the hands of well-intentioned Whites.⁶³ Flagg notes that “[t]ransparency operates to require black assimilation even when pluralism is the articulated goal; it affords substantial advantages to whites over blacks even when decisionmakers intend to effect substantive racial justice.”⁶⁴ I believe that a Black person’s failure to assimilate to certain White-specific norms results in a conclusion by Whites that the African-American has a propensity for engaging in stereotypically Black behavior. Moreover, in the context of a criminal case, an African-American who fails to assimilate to White-specific norms will likely face affirmative evidence of stereotypical Blackness including evidence that he or she has a propensity for engaging in certain behavior.

[text omitted]

[S]ocial scientists have established that White individuals who are chosen as jurors typically have some level of implicit bias against African-Americans, regardless of whether the defendant or the alleged victim is Black.⁹⁰ We can also assume that the White jurors, like others, are unaware that they hold such biases. Additionally, if Flagg’s transparency phenomenon is accurate, we can assume that White jurors will apply some White-specific norms and expectations to the African-Americans involved in criminal cases and that they will do so under the mistaken belief that the White-specific norms are reasonable and race-neutral. Finally, we know that if the African-Americans involved in criminal cases fail to follow the White-specific norms imposed by White jurors, then the jurors will make judgments about the African-Americans that not only will reflect subconscious racial bias but also the application of certain traditionally-held stereotypes of African-Americans.

I believe that the concepts of implicit bias and transparency theory, when combined with the application of traditional racial stereotypes, come together to create affirmative character evidence that jurors will consider in *335 criminal cases involving African-Americans. While the evidence is not explicitly introduced at trial, it is admitted nonetheless, and it has a real effect on the outcome of criminal cases involving either an African-American defendant or alleged victim. This evidence of stereotypical Blackness is introduced to jurors outside the confines of Rule 404(a). Thus, courts are not required to engage in any analysis of whether the prejudice associated with the evidence, if any, might result in an unfair outcome. One recent example of the use of stereotypical Blackness is the State v. George Zimmerman trial, which concerned the death of 17-year-old Trayvon Martin.⁹¹ My hypothesis is that the doctrines of implicit bias and transparency theory, together with the application of certain racial stereotypes, constituted affirmative evidence of Martin’s Blackness and ultimately became a factor that favored the acquittal of George Zimmerman. In the next section, I will discuss some of the evidence of stereotypical Blackness that was admitted during the trial through the testimony of Rachel Jeantel and describe how that evidence likely affected the jury.

III. EVIDENCE OF STEREOTYPICAL BLACKNESS OFFERED DURING THE STATE V. ZIMMERMAN TRIAL

On February 26, 2012, a 17-year-old African-American male named Trayvon Martin and a 28-year-old Hispanic male named George Zimmerman, who were strangers to each other, became involved in a physical altercation that resulted in the shooting death of Martin.⁹² The altercation took place inside a gated community in Sanford, Florida.⁹³ Zimmerman was a resident of the neighborhood, and Martin was in the area to visit his father, whose girlfriend lived in the neighborhood.⁹⁴ Zimmerman claimed that he shot Martin in self-defense, and, for the first six weeks following Martin’s death, the Sanford Police Department chose not to charge Zimmerman with a crime.⁹⁵ However, following protests throughout the country and significant media coverage, special prosecutor Angela Corey announced that the State of Florida would charge Zimmerman with second-degree murder.⁹⁶

*336 The trial of George Zimmerman took place in late June and early July 2013.⁹⁷ Many believed that the jury’s verdict would be a litmus test for whether African-Americans could obtain fair outcomes in the American criminal justice system.⁹⁸ Would the six-person jury find Zimmerman’s use of deadly force against an unarmed Black teenager unlawful?

Despite the widespread belief that the Zimmerman trial would serve as some sort of commentary on race relations in America, the three-week trial included very few overt references to race. During pre-trial motions in limine, Zimmerman’s defense team convinced Judge Debra Nelson that prosecutors should not be able to argue that Zimmerman racially profiled Martin.⁹⁹ Instead, prosecutors could only argue that Zimmerman “profiled” Martin.¹⁰⁰ During the presentation of the evidence, jurors heard various 911 calls from Zimmerman wherein he described suspicious individuals as African-Americans but he did not do so pejoratively.¹⁰¹ Also, during the cross-examination of prosecution witness Rachel Jeantel, Zimmerman’s attorney questioned her on her and Martin’s use of the term “cracker” to describe Caucasians.¹⁰² Finally, during the prosecution’s closing argument rebuttal, prosecutor John Guy stated that the case was not about race and asked the jury to consider what the outcome of the trial would be if Martin had shot and killed Zimmerman.¹⁰³ Other than these isolated references to race, the trial did not explicitly focus on whether *337 Martin’s race played any role in Zimmerman’s decision to use deadly force against him. 

A. Rachel Jeantel as an Example of Stereotypical Blackness

While the trial included very few explicit references to race, evidence was offered at trial that would allow the jury to make certain inferences about Martin’s character. This evidence of stereotypical Blackness was offered through the direct and cross examinations of prosecution witness Rachel Jeantel. Jeantel’s testimony resulted in the admission of evidence of stereotypical Blackness that likely harmed the prosecution’s case.

Jeantel was Martin’s friend and the last person to speak with him before his death.¹⁰⁴ Thus, Jeantel was a key prosecution witness because she could provide insight into Martin’s state of mind immediately prior to his physical altercation with Zimmerman. Jeantel was 19-years-old at the time she testified and had just completed the eleventh grade.¹⁰⁵ Described as “a young woman, dark-skinned and overweight, her eyes signaling exasperation,”¹⁰⁶ Jeantel was almost immediately attacked on social media for her appearance, speech, and perceived level of intelligence.¹⁰⁷ Twitter users compared Jeantel to Precious, the title character in a 2009 feature film detailing the life of a severely overweight, sexually abused, and illiterate African-American girl portrayed by actress Gabourey Sidibe.¹⁰⁸ Others, including biracial Olympian Lolo Jones, compared Jeantel to the fictional character Madea, an overweight, rambunctious, and stereotypically Black woman portrayed by director, screenwriter, and actor Tyler Perry.¹⁰⁹ Some Twitter users were downright cruel in their criticisms of Jeantel, calling her dumb, stupid, uneducated, hideous, nasty, and stating that she looked like a man.¹¹⁰ African-Americans tweeted that Jeantel was an embarrassment to the race and nothing more than a stereotypical Black  *338 woman.¹¹¹ Indeed, one Twitter user described Jeantel as “the realest thug walking.”¹¹²

The criticism of Jeantel by the “Twittersphere”¹¹³ is troubling not only because the insults were so harsh but also because the tweets likely provide some insight into the manner in which the Zimmerman jurors viewed Jeantel and possibly Martin. The jurors, five White women and one Puerto Rican woman, were properly charged with judging the veracity of Jeantel’s testimony, but, as Martin’s friend and the last person to speak with him prior to his death, Jeantel became Martin’s proxy. She was the only person who could describe the night’s events from Martin’s perspective. Jurors likely assumed that Martin and Jeantel were of similar character since they were friends. To the extent the jurors made assessments of Jeantel’s character, they may have also believed that Martin possessed some of the same character traits. Thus, the evidence of stereotypical Blackness offered through Jeantel became evidence of Martin’s character.

Jeantel was an overweight Black woman who appeared to have had some irregularity in her education based on her entering twelfth grade at the age of 19. The jurors may have assumed that she had been held back in school and probably perceived her as uneducated or unintelligent. Also, they probably found her demeanor in response to direct and cross examination questioning to be hostile and uncooperative.¹¹⁴ Jeantel also struggled to read the transcript of her deposition testimony, which defense counsel provided to her during cross-examination, and she later admitted that she had some literacy difficulties.¹¹⁵ Additionally, she testified that she and Martin sometimes referred to White people as “crackers”¹¹⁶ and that Martin referred to Zimmerman as a “creepy-ass cracker” on the night of the shooting.¹¹⁷ Social media was set ablaze with criticism of Jeantel for being stereotypically Black--uneducated, hostile, inarticulate, angry toward Whites, lazy, and a thug--and it is possible that the jurors made similar assessments about Martin’s character.

*339 If it is true that Jeantel’s stereotypical Blackness took on the role of character evidence against Martin, then the prosecution’s case as presented was unwinnable. The prosecution failed to offer any evidence that might humanize Martin in the eyes of the jury. While the prosecution played multiple audio and video recordings of Zimmerman, including his 911 calls and interviews with investigators following the shooting of Martin, they were unable to offer any evidence of Martin’s recorded voice.¹¹⁸ Not only were prosecutors unable to show Martin as a complex human being who may have had a legitimate fear that his life was in danger, but they did little to prevent the jury from inferring that Jeantel’s stereotypical Blackness was also probative of Martin’s character. If the jury believed that Martin was uneducated, hostile, inarticulate, angry toward Whites, lazy, and a thug (characteristics that are consistent with many traditional stereotypes of African-Americans), then they could quite easily determine that Martin acted in conformity with his stereotypical Blackness on the night in question. 

B. The Jurors’ Reactions to Jeantel

We need not speculate regarding the impact that Jeantel had on the jurors’ perceptions of Martin. An interview with the juror known only as B-37 reveals that Jeantel’s failure to present herself in accordance with White-specific norms very likely influenced Juror B-37’s assessment of the characters of both Jeantel and Martin.¹¹⁹

1. Juror B-37’s Background

Before we explore Juror B-37’s post-trial interview, it is helpful to review her responses to the attorneys’ voir dire questions. Juror B-37 was a White, middle-aged mother of two who resided in Seminole County, Florida, at the time of the trial.¹²⁰ During voir dire questioning, Juror B-37 stated that she was aware that riots had occurred following the death of Martin, when, in reality, no riots had occurred.¹²¹ She also stated that, other than the Today show, she does not watch the news and finds the *340 media to be worthless.¹²² When asked by Zimmerman’s attorneys to describe Martin, she stated that “[h]e was a boy of color” and, when referring to Martin’s death, she called it “an unfortunate incident that happened.”¹²³

Juror B-37’s statements support my opinion that she entered the jury box with certain implicit biases against African-Americans. She mistakenly believed that the individuals protesting the Sanford Police Department’s failure to arrest Zimmerman had engaged in riots and likely believed that African-Americans had carried out those riots.¹²⁴ Juror B-37 also chose to describe Martin by his sex and color when she could have used many other words to describe him. Martin’s sex and color were his most salient characteristics in the eyes of Juror B-37, but I suspect that she would not have mentioned Zimmerman’s race if asked to describe him.¹²⁵ Juror B-37’s description of Martin is a clear example of Flagg’s transparency theory.¹²⁶ While Juror B-37’s voir dire responses should have raised some red flags for the prosecution, they did not use one of their peremptory strikes to remove her from the jury.

2. Juror B-37’s Anderson Cooper Interview

Just two days after the announcement of Zimmerman’s acquittal, Juror B-37 sat for an interview with Anderson Cooper.¹²⁷ Juror B-37 concealed her identity during the interview to avoid bringing attention to her family.¹²⁸ During the interview, Cooper asked Juror B-37 a series of questions about Jeantel:

COOPER: I want to ask you a bunch of the--I want to ask you about some of the different witnesses. Rachel Jeantel, the woman who was on the phone with Trayvon Martin at the start of the incident. What did you make of her testimony?

JUROR: I didn’t think it was very credible, but I felt very sorry for her. She didn’t ask to be in this place. She didn’t ask-- she wanted to go. She wanted to leave. She didn’t want to be any part of this jury. I think she felt inadequate toward everyone *341 because of her education and her communication skills. I just felt sadness for her.

COOPER: You felt like, what, she was in over her head?

JUROR: Well, not over her head, she just didn’t want to be there, and she was embarrassed by being there, because of her education and her communication skills, that she just wasn’t a good witness.¹²⁹ 

Juror B-37’s description of Jeantel is extremely telling. First, she stated that Jeantel was not a credible witness but did not immediately explain her reasons for this conclusion. Instead, she discussed Jeantel’s “inadequate” education and communication skills and stated, in a paternalistic fashion, that she felt pity for Jeantel.¹³⁰ Juror B-37 perceived that Jeantel was embarrassed because her inadequacies were exposed for the world to see.¹³¹ Juror B-37 also concluded that Jeantel’s lack of education and poor communication skills made her a bad witness for the prosecution.¹³²

Juror B-37’s perception of Jeantel was obviously affected by certain widely held racial stereotypes of African-Americans. First, Juror B-37 concluded that Jeantel’s education and communication skills were inadequate without considering Jeantel’s testimony that she was born in Haiti and had the ability to speak two other languages in addition to English.¹³³ While Jeantel also revealed her struggle with literacy during her testimony, Juror B-37 did not conclude that those struggles might be due to the fact that English was not the primary language spoken in Jeantel’s home.¹³⁴ Juror B-37’s assumption that Jeantel’s speech and reading skills were the result of poor education or a lack of intelligence demonstrate the application of White-specific and American-specific expectations that all people living in the United States must be able to speak and read English, unless they are too unintelligent to do so.

Juror B-37’s interview with Cooper also revealed that she had trouble relating to both Jeantel and Martin, providing a clue that her assessment of Jeantel’s character also became her assessment of Martin’s character:

COOPER: Did you find it hard at times to understand what [Jeantel] was saying?

JUROR: A lot of the times because a lot of the time she was using phrases I have never heard before, and what they meant.

*342 COOPER: When she used the phrase, “creepy ass cracker,” what did you think of that?

JUROR: I thought it was probably the truth. I think Trayvon probably said that.

COOPER: And did you see that as a negative statement or a racial statement as the defense suggested?

JUROR: I don’t think it’s really racial. I think it’s just everyday life, the type of life that they live, and how they’re living, in the environment that they’re living in.¹³⁵

Juror B-37 did not find Jeantel to be a credible witness in general, but had no trouble believing her testimony that Martin called Zimmerman a “creepy-ass cracker.”¹³⁶ Juror B-37 indicated that she had a hard time understanding Jeantel’s vernacular but concluded that the everyday lives of Martin and Jeantel involved them using pejorative terms to describe Whites. She made judgments and assumptions about the environment in which Martin and Jeantel lived, even though no witnesses offered testimony on this topic. Juror B-37’s statements reveal a divide between the suburban lives of Juror B-37 and Zimmerman on the one hand, and the “ghetto” inner-city lives of Jeantel and Martin on the other. Importantly, Juror B-37’s statements also reveal that she made certain judgments about Martin’s character based on her assessment of his proxy Jeantel.

Compare Juror B-37’s failure to identify with Jeantel and Martin with her glowing and very personal description of Zimmerman. Juror B-37 stated that Zimmerman’s “heart was in the right place” but that his good intentions got displaced because of the crime occurring in his neighborhood.¹³⁷ In that regard, the defense offered evidence that African-American men were responsible for a lot of the crime that had occurred in Zimmerman’s neighborhood.¹³⁸ In his closing argument, Zimmerman’s defense attorney, Mark O’Mara, argued that Zimmerman had reason to be suspicious of Martin because he fit the description of the individuals who had committed crimes in Zimmerman’s neighborhood in the past.¹³⁹ Juror B-37 also stated that, despite some inconsistencies in the statements Zimmerman made to investigators, she believed his account of what happened on the night he shot Martin.¹⁴⁰ Juror B-37 concluded that Martin “got mad and attacked” Zimmerman, and she described Martin as the “aggressor.” *343 ¹⁴¹ She also stated that she believed Martin may have reached for Zimmerman’s gun even though the defense offered no DNA evidence to support this belief.¹⁴² Finally, Juror B-37 stated that she would feel comfortable having Zimmerman patrol her neighborhood and that she believed he would be very responsible with his gun.¹⁴³

Juror B-37 was just one of the six individuals who voted to acquit Zimmerman, and four of the remaining five jurors have disavowed her comments, stating that they do not share the opinions she expressed during her Anderson Cooper interview.¹⁴⁴ Even if the other jurors (four White females and one Puerto Rican female) did not harbor biases similar to those demonstrated by Juror B-37, it is fair to say that, as to Juror B-37, the concepts of implicit bias and transparency theory as well as the application of certain racial stereotypes took on the role of character evidence and provided Juror B-37 with enough information to make assessments about Martin that resulted in her decision to vote for Zimmerman’s acquittal.

I believe that this evidence of stereotypical Blackness is admitted in most criminal cases involving African-American defendants or victims, but it does not receive the same scrutiny that overt, explicit propensity evidence would receive before being presented to the jury. For this reason, judges in criminal trials must make an effort to limit the impact of evidence of stereotypical Blackness.

IV. REDUCING OR ELIMINATING THE IMPACT OF EVIDENCE OF STEREOTYPICAL BLACKNESS

This section will explore various options for lessening the impact of evidence of stereotypical Blackness. Because this evidence can find its origins in the concepts of implicit bias and transparency theory, one might believe that it is nearly impossible to reduce or eliminate its impact because it exists on a subconscious level; however, social science research suggests that certain strategies can result in a reduction in implicit bias.¹⁴⁵ When these strategies are considered along with traditional evidentiary tools for limiting the impact of unfairly prejudicial evidence, a set of potential solutions emerges. 

A. Jury Selection

During the jury selection process, it is common for the attorneys or the court to ask jurors if they believe they can be fair and unbiased in their *344 assessment of the evidence. This inquiry is completely ineffective in determining whether a given juror can set aside his or her implicit biases since the jurors are likely not even aware that they harbor certain implicit biases.¹⁴⁶ Similarly, White jurors are not likely to acknowledge the tendency of Whites to apply White-specific norms to people of color because those norms usually appear to be race-neutral. The point here is that the normal voir dire examination process is not sufficient to ferret out jurors who are likely to make decisions based on evidence of stereotypical Blackness.

On the other hand, research shows that racial diversity can significantly reduce the likelihood that implicit bias will affect jury verdicts.¹⁴⁷ Professors Jolls and Sunstein have summarized several social science studies which “support[ ] the conclusion that the presence of population diversity in an environment tends to reduce the level of implicit bias.”¹⁴⁸ They note one study wherein White IAT test-takers who were paired with African-American partners exhibited less implicit bias than White test-takers paired with White partners.¹⁴⁹

While racial diversity among jurors may reduce bias, the racial make-up of the voter rolls in counties like Seminole County, Florida, may not allow for racially diverse juries. Thus, judges must employ other strategies to eliminate the effect of stereotype evidence.

B. Instruction from the Court

One method for reducing the effect of implicit bias, transparency theory, and racial stereotypes may be to simply talk about these concepts with the jury and encourage them to resist the urge to allow these phenomena to affect their assessment of the evidence. Rather than ignoring the 10,000-pound pink elephant in the courtroom that is race in the American criminal justice system, it may be quite effective to educate jurors on the existence of implicit bias and transparency theory and caution them against allowing racial stereotypes to influence their decisions in any way. Judge Bennett argues that courts should instruct jurors that most people hold certain biases and urge jurors to control their biases while serving on the jury.¹⁵⁰ To support this view, Bennett cites to research studies of police officers showing a statistically significant decrease in implicit bias *345 following training.¹⁵¹ Judge Bennett is an innovator in the area of juror education on the topic of bias. In both civil and criminal trials, he instructs jurors on implicit bias just prior to opening statements. He also requires jurors in his criminal cases to sign a certificate of nondiscrimination.¹⁵² Because the premise of this paper is that stereotypical Blackness takes on the role of propensity evidence in criminal cases involving African-Americans, it would also be appropriate and necessary for the court to provide a limiting instruction to the jurors cautioning them to avoid using such evidence to make inferences about the character traits of the defendant or alleged victim.¹⁵³

In the Zimmerman case, the court limited the discussion of race during the trial;¹⁵⁴ however, according to Sommers and Ellsworth, the court would have reduced juror bias by allowing some discussion of race during the trial.¹⁵⁵ They argue that allowing the discussion of race at trial will remind White jurors of their egalitarian ideals and desire to appear non-prejudiced, thereby ensuring a non-biased verdict.¹⁵⁶ One might argue that race was salient at the Zimmerman trial because the national media coverage focused on the trial as a microcosm of race relations in America, but I believe the jury failed to consider or openly discuss race during jury deliberations because the court and attorneys made clear that the case was not about race. Because the trial was whitewashed in this way, jurors likely believed they would be breaking the rules if they had engaged an open discussion about race. 

C. Rebuttal Evidence

The most effective way to combat traditional character evidence, short of excluding it altogether, is to rebut the evidence. If Jeantel’s testimony in the Zimmerman case resulted in a portrayal of Trayvon Martin as an uneducated, hostile, inarticulate, lazy thug who disliked Whites,¹⁵⁷ then the prosecution should have been able to rebut this evidence.

*346 Florida’s rule of the admissibility of character evidence is very similar to Federal Rule of Evidence 404.¹⁵⁸ It provides that a criminal defendant may offer evidence of a pertinent character trait of the alleged victim and that the prosecution may rebut such evidence.¹⁵⁹ In the Zimmerman trial, the defense did not offer explicit evidence of Martin’s character for violence. Doing so would have been quite risky for Zimmerman, who had been arrested and charged with felony battery and resisting arrest and who was accused of domestic violence in 2005.¹⁶⁰ Had Zimmerman introduced explicit evidence of Martin’s character for violence, he likely would have opened the door for the prosecution to offer reputation testimony regarding Zimmerman’s character for violence.¹⁶¹ Rather than offering explicit character evidence, Zimmerman’s defense team was able to bring out evidence of Jeantel’s character traits, many of which were not pertinent to Jeantel’s credibility, and link those traits to Martin. This approach insulated Zimmerman from the risk that his reputation for violence might be admitted in rebuttal.

The more appropriate rule would be to allow rebuttal evidence where the jury hears evidence of an individual’s stereotypical Blackness. In the Zimmerman trial, that rebuttal evidence would not have focused on attacking Zimmerman’s character but instead on humanizing Martin. Under the current version of Florida’s Rule 404, the prosecution could have offered evidence of Martin’s character for peacefulness, but it made a strategic decision not to do so to avoid opening the door to evidence suggesting that Martin had engaged in violence in the past.¹⁶² Thus, rather than focusing on Martin’s propensity for violence, the evidence rebutting the stereotype evidence would focus on Martin’s general demeanor, lifestyle, and attitude toward Whites. For example, had the prosecution been able to introduce video evidence of Martin speaking or interacting with his family or friends, then he would have been on equal footing with Zimmerman, who spoke to the jury through several video and audio recordings. Also, to combat the notion that Martin did not like Whites and exhibited hostility toward them, the prosecution would offer evidence that Martin was friendly with people of all races and may have had very close *347 friends who were White. Evidence of Martin’s plan to attend college or efforts to find employment would combat the notion that he was a thug. Finally, evidence of Martin’s good performance in school would combat the stereotype that he was unintelligent and lazy.

Each of these suggestions assumes that Martin exhibited these traits. If Martin displayed at least some of these characteristics during his short lifetime, it is unfortunate that the jury never had an opportunity to get to know him. Although many different factors resulted in the acquittal of George Zimmerman, I believe that this rebuttal evidence would have given the jury a more well-rounded picture of the voiceless Trayvon Martin.

Empirical research supports this approach to attacking stereotype evidence.¹⁶³ Melinda Jones has found that providing information to the jury that contradicts racial stereotypes is very effective in preventing the application of the stereotype.¹⁶⁴ Jones found that “counterstereotypical information that was highly relevant to the judgment (for example, describing a Hispanic defendant accused of an aggressive crime as nonaggressive via character testimony) was effective in eliminating stereotypic biases.”¹⁶⁵ Thus, in the Zimmerman case, prosecutors could have reduced the possibility that jurors would rely upon stereotyped biases of Martin by offering counterstereotypical character evidence to the extent they could do so within the confines of the Florida Rules of Evidence. 

V. CONCLUSION

The Zimmerman trial is just one example of a phenomenon that likely happens quite frequently, often without the benefit of a public trial. We will never know the extent to which evidence of stereotypical Blackness affected the grand juries investigating the deaths of Michael Brown,¹⁶⁶ Eric Garner,¹⁶⁷ and John Crawford.¹⁶⁸ What we do know is that following George Zimmerman’s acquittal, he has been involved in several incidents *348 that call into question Juror B-37’s assessment of him as a peaceful, responsible gun owner whose “heart was in the right place.”¹⁶⁹

African-Americans must frequently confront biases and stereotypes. These biases and prejudices certainly exist outside the context of criminal cases, but evidence of stereotypical Blackness takes on greater significance when an African-American is either a silent victim or a defendant exercising his or her constitutional right to remain silent. The strategies outlined above, which include empaneling more diverse juries, educating and instructing jurors on the risk of bias, and offering explicit evidence to rebut unspoken but pervasive racial stereotypes, may move us toward verdicts that are a better reflection of the evidence presented rather than a product of our implicit prejudices and misconceptions about people who are different from us. It is the writer’s hope that these practices will move us toward a more perfect criminal justice system that will treat all Americans equally regardless of their skin color.

Please go to our Moodle course page, where you can answer Comprehension Questions #16.

[omitted]

Rule 5-404(a):

Rule 5-404(a) states that “evidence of a person's character or character trait is not admissible to prove that the person acted in accordance with the character or trait on a particular occasion.”192

The Problems

Though Rule 5-404 does not explicitly allow admission of race as evidence of an individual’s character or identity, where character evidence is admissible under Rule 5-404, Rule 5-405 permits parties to prove a person’s character through opinion testimony.193 In practice, this allows negative traits historically associated with Blackness to escape the limitations posed by Rule 5-404, empowering witnesses to describe a person’s character based on racial stereotypes.

Blackness as a character trait is not a novel concept; crime is highly racialized in the United States, and Blackness has long been an indicator of who is perceived as criminal. While this stems from the era of slavery and Jim Crow, it carried through, and was perhaps amplified during, the War on Drugs, when Ronald Reagan and his administration publicized the spread of crack cocaine as a “crisis in poor [B]lack neighborhoods.”194 Capitalizing on that imagery, “the media was saturated with images of [B]lack ‘crack whores,’ ‘crack dealers,’ and ‘crack babies’—images that seemed to confirm the worst negative racial stereotypes about impoverished inner-city residents.”195 The “presumptive identify of [B]lack men as ‘slaves’ evolved into the presumptive identity of ‘criminal.’”196 This pervasive racial discrimination suffered by Black individuals creates a “[B]lack tax.”197 Like the “state [that] stands behind the collection of the general taxes, Black people often have good cause to view state representatives such as police and judicial officers as IRS agents for the Black tax.”198

Accordingly, this tax carries its way into trial, where witnesses can testify against Black defendants with their opinions of character, colored by society’s persistent and racist perception of Black criminality.

Even if not explicit, individuals can use coded language that implies negative character traits traditionally associated with Blackness. For example, a witness may say a Black defendant was “acting suspiciously” or “up to no good,” or did not “look like he belonged there.”199 We saw this coded language used as an attempt to justify the murder of Trayvon Martin when George Zimmerman told police dispatchers he was observing a “real suspicious guy” who looked “like he was up to no good or on drugs or something.”200 Similarly, multiple survey participants explained that this rule is used in practice to admit characteristics associated with gang members.201 One participant stated that “an officer might describe the defendant[] as wearing clothing associated with gang activity, despite gang activity having nothing to do with the case and despite it[s] inherent prejudicial nature.”202 Other participants explained that they have seen characteristics associated with Blackness admitted in the form of “belligerence, speech patter[n]s, and rap music,” or descriptions of “bad neighborhood[s],” “projects,” or “certain parts of town.”203

Recommendations

It is impossible to eliminate implicit biases entirely. Thus, scholars have recommended that where a jury hears implicit evidence of an individual’s stereotypical Blackness, at a minimum, the court should allow the defendant to provide racially cognizant rebuttal evidence.204 For example, if evidence is introduced that implicitly suggests that the defendant lived a lifestyle typically associated with gang members, the court should allow the defense to introduce evidence of the defendant’s demeanor, lifestyle, and attitude towards gangs. Research suggests that providing the jury evidence that rebuts racial stereotypes is effective in preventing application of the stereotype.205

Footnotes:

• 192 MD. R. EVID. 5-404(a).
• 193 MD. R. EVID. 5-405 (“In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.”).
• 194 Id.
• 195 MICHELLE ALEXANDER, THE NEW JIM CROW 6 (10th ed. 2020).
• 196 BRYAN STEVENSON, POLICING THE BLACK MAN 12 (Angela J. Davis ed. 2017).
• 197 JODY ARMOUR, NEGROPHOBIA AND REASONABLE RACISM: THE HIDDEN COSTS OF BEING BLACK IN AMERICA 13 (1997); see also Montre D. Carodine, “The Mis-Characterization of the Negro”: A Race Critique of the Prior Conviction Impeachment Rule, 84 IND. L.J. 521, 533 (2000).
• 198 ARMOUR, supra note 197.
• 199 Chris Goodman, The Color of Our Character: Confronting the Racial Character of Rule 404(b) Evidence, 25 L. & INEQ. 1, 22 (2007).
• 200 Byron Tau, Obama: ‘If I had a son, he’d look like Trayvon’, POLITICO (Mar. 23, 2012), https://www.politico.com/blogs/politico44/2012/03/obama-if-i-had-a-son-hed-look-like-trayvon118439.
• 201 See App. at 10, 20, 124, 131, 331.
• 202 Id. at 131.
• 203 Id. at 288.
• 204 Mikah K. Thompson, Blackness as Character Evidence, 20 MICH. J. RACE & L. 321, 345 (2015). 2
• 05 Melinda Jones, Preventing the Application of Stereotypic Biases in the Courtroom: The Role of Detailed Testimony, 20 J. APPLIED SOC. PSYCH. 1767, 1768–69 (1997).

In the Merritt & Simmons textbook, please read Chapter 30 and part of Chapter 34. Specifically, read from the start of Chapter 34 to the end of section C(1)(b). That section ends on page 435 of the Fourth Edition and the is right before thse section on "Factual determinations under Rule 412."

f you are using the Third Edition, on page 367, add the following text to the paragrpah before "Section 12: Limiting Instructions:" 

In addition, advocates have noted that evidence offered under Rule 404(b) can be particularly prejudicial when it activates racial, ethnic, or other stereotypes.14 Rule 403 offers an avenue for counsel to raise those concerns. Counsel in all cases must pay careful attention to the intersection of Rules 403 and 404(b).

Fn 14:Chris Chambers Goodman, The Color of Our Character: Confronting the Racial Character of Rule 404(b) Evidence, 25 Law & Ineq. 1 (2007).

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

The prior version of Rule 404(b):

On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

The new version of Rule 404(b)

In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

Advisory Committee Note to Rule 104(b):

Subdivision (b). In some situations, the relevancy of an item of evidence, in the large sense, depends upon the existence of a particular preliminary fact. Thus when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. Or if a letter purporting to be from Y is relied upon to establish an admission by him, it has no probative value unless Y wrote or authorized it. Relevance in this sense has been labelled “conditional relevancy.” Morgan, Basic Problems of Evidence 45–46 (1962). Problems arising in connection with it are to be distinguished from problems of logical relevancy, e.g. evidence in a murder case that accused on the day before purchased a weapon of the kind used in the killing, treated in Rule 401.

If preliminary questions of conditional relevancy were determined solely by the judge, as provided in subdivision (a), the functioning of the jury as a trier of fact would be greatly restricted and in some cases virtually destroyed. These are appropriate questions for juries. Accepted treatment, as provided in the rule, is consistent with that given fact questions generally. The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration. Morgan, supra; California Evidence Code §403; New Jersey Rule 8(2). See also Uniform Rules 19 and 67.

. . . 

.. . 

Attorneys and Law Firms

Lisa Cartier–Giroux, Phillip N. Smith, Jr., United States Attorney’s Office, Las Vegas, NV, for Plaintiff.

William H. Gamage, Gamage & Gamage, Las Vegas, NV, for Defendant. 

Order Granting Motion in Limine to Exclude Extrinsic Evidence of 2014 Robberies,

Jennifer A. Dorsey, United States District Judge

*1 Defendant Brian Keith Wright is charged with various crimes related to two armed jewelry-store robberies in 2017. Wright moves to preclude evidence of prior charged-but-dismissed robberies as inadmissible character evidence under FRE 404. Because the government has failed to show that this evidence is admissible under FRE 404(b), I grant Wright’s motion.

Background

Wright and co-defendants Deandre Brown and Aquail Harris are charged with the armed robberies of two Las Vegas jewelry stores: a Jared the Galleria of Jewelry store on January 3, 2017, and an MJ Christensen Jewelers store ten days later. The government theorizes that Wright masterminded these robberies, directed his co-conspirators how to carry them out, and supplied the firearms and bags for the Jared’s heist.² In each robbery, the government alleges, “the robber(s) entered the stores armed with guns, pointed them at the employees, and demanded that the jewelry be placed in the bags. In each case, as part of the plan, getaway drivers were used. In each case, Defendant Wright waited in the vicinity until the robbery was completed.”

To prove this modus operandi and Wright’s identity as the mastermind of the 2017 robberies, the government plans to introduce evidence that Wright masterminded the robberies of these very same jewelry stores nearly three years earlier in the Spring of 2014. Wright was charged with these crimes in this district in case No. 2:14–cr–357–APG–VCF, but those charges were dropped “pursuant to negotiation.” Wright moves to preclude the government from introducing this prior-bad-acts evidence. The government opposes that motion, arguing that the 2014 robberies are admissible under Rule 404(b) because they show “Wright’s identity, motive, intent, preparation, knowledge, and plan to commit the crime[s] charged.”

Discussion

A. Prior Bad Acts Evidence Under Rule 404(b)

Under FRE 404(b), “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”⁸ But “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”⁹ In the Ninth Circuit, evidence is admissible under FRE 404(b) if the government can show that: (1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged.¹⁰ To satisfy the first prong’s materiality requirement, the government “must articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from the other acts evidence.”¹¹

B. The government has failed to show that extrinsic evidence of the 2014 robberies is admissible under Rule 404(b).

*2 The government sweepingly states that the two prior robberies are admissible for nearly all the reasons listed under 404(b)(1): “to show identity, motive, intent, preparation, knowledge, plan to commit the crime charged, and modus operandi.” Its analysis, however, focuses on arguing that the 2014 robberies “prove Defendant Wright’s identity through a distinctive manner of operation, or modus operandi.” But when prior bad acts evidence is introduced for this purpose, the “act must be ‘sufficiently distinctive to warrant an inference that the person who committed the act also committed the offense at issue.’ ”¹⁴

As the Ninth Circuit explained in United States v. Luna, “if the characteristics of both the prior offense and the charged offense are not in any way distinctive, but are similar to numerous other crimes committed by persons other than the defendant, no inference of identity can arise.”¹⁵ The Luna court considered these robbery details and found them too “generic” to justify the admission of uncharged robberies under Rule 404(b):¹⁶

The robberies were conducted takeover style, i.e., rather than robbing individual tellers and attempting to hide that fact from the rest of the bank, the robbers announced their presence to one[,] and all and took control of the bank. The robberies all occurred between 10:30 and 11:30 a.m., and the robbers entered the banks noisily. In each case, the robbers wore sweatpants, sweatshirts, some kind of mask, and gloves. The robbers were armed. At least one robber jumped over the counter. The robbers swore at the tellers and pushed, tossed, or struck one or more bank employees. They took money out of one or more of the tellers’ drawers and put it into bags. They used a getaway car in all of the robberies, and in both of the uncharged crimes and one of the charged crimes, they abandoned the car with its motor running.¹⁷

The panel reasoned that characteristics like the timing of a robbery, the use of a gun, the act of furnishing of a bag “for carrying off the proceeds,” or wearing gloves or nylon-stocking masks are just “common component[s] of armed bank robbery” and mean “virtually nothing.”¹⁸

Similarly generic crime details led the Ninth Circuit to conclude in United States v. Perkins that “the modus operandi of” previously dismissed robbery charges was “not sufficiently similar to the charged” robbery “to support an inference of identity and warrant admission under Rule 404(b).”¹⁹ All of the robberies “involved a man supposedly wearing various disguises ..., approaching the teller with something to carry away money, and warning the teller not to push any buttons.”²⁰ These “points of similarity,” the panel opined, “are so common to most bank robberies as to be entirely unhelpful,” so “the requirements of Rule 404(b) were not met....”²¹

The similarities that the government contends justify the admission of the 2014 robberies in this case are equally generic. Here’s how the government describes the 2014 robberies:

• On April 29, 2014, “the same MJ Christensen Jewelers” store “was robbed at gunpoint by an individual name[d] Philbert Cole,” who “gave the jewelry store employee several backpacks and told her to put jewelry from the display case in the bags. The employee complied,” and Cole fled.

*3 • Ten days later, Cole then robbed the same Jared’s store described in the instant indictment. “Just like Defendant Aquail Harris in the Jared’s robbery charged” in this case, Cole “disarmed the Jared’s security guard and stole his handgun. Mr. Cole ordered his backpacks to be filled with jewelry, and then fled the store.”

• “In each case, a getaway driver was used.”

• After his arrest, Cole confessed that Wright masterminded the robberies, provided him with the guns, and “received most of the proceeds from them.”

The government suggests that these 2014 details prove Wright’s identity as the mastermind of the 2017 robberies of these same stores “through a distinctive manner of operation, or modus operandi.” It offers these details of the 2017 robberies to illustrate this “distinctive manner”:

• In these robberies of the same two stores hit in 2014, similarly conducted ten days apart, “Wright ... advised his co-conspirators which jewelry store cases in the store should be targeted,” he “provided firearms for the Jared’s robbery as well as the bags in which the jewelry should be placed,” and he “told his co-conspirators that the guard should be disarmed at the commencement of the robbery.”

• And in both robberies, “the robber(s) entered the stores armed with guns, pointed them at the employees, and demanded that the jewelry be placed in the bags. In each case, as part of the plan, getaway drivers were used. In each case, Defendant Wright waited in the vicinity until the robbery was completed.”

I find that the overlapping characteristics identified by the government—waiting 10 days before the second robbery, using a gun, demanding the employees place the jewelry in provided bags, and using getaway drivers—are not signature details that are distinctive enough to show that these 2014 and 2017 robberies are sufficiently similar. Like the characteristics in Luna and Perkins, the details of these robberies are similar to numerous other robberies, making them unhelpful for any evidentiary purpose. And these generic similarities take on even less significance because the person who entered the stores and carried out the 2014 robberies (Cole) is not the same person who entered the stores and carried out the 2017 robberies (Harris). In sum, I find that these 2014 robberies do not satisfy the materiality or similarity prongs of the Rule 404(b) admissibility test. When I consider that the Ninth Circuit has repeatedly “emphasized that extrinsic[-]acts evidence ‘is not looked upon with favor’ ” and cautioned that the use of prior bad acts “must be narrowly circumscribed and limited,”²⁸ I conclude that the government has not shown that extrinsic evidence of these 2014 robberies should be admitted under Rule 404(b).²⁹

Conclusion

*4 Because the government has failed to show that the 2014 robberies are admissible under 404(b), I grant Wright’s motion to preclude the government from introducing extrinsic evidence of those robberies at trial. Accordingly, IT IS HEREBY ORDERED that Wright’s Motion in Limine to Preclude Reference to Prior Bad Acts [ECF 130] is GRANTED.

[omitted]

Rule 5-404(b):

Rule 5-404(b) bans parties from admitting evidence of a crime, wrong, or other act to prove a person’s character “in order to show action in the conformity therewith.”206 However, evidence of a crime, wrong, or other act may be used to prove “motive, opportunity, intent, preparation, plan, common scheme or plan, knowledge, identity, or absence of mistake or accident.”207

The Problems

There are several problems with this Rule including its disparate impact on Black and Brown people; the impossibility of separating dual purposes, or proof of propensity from proof of an offered purpose (e.g., motive, intent, etc.); and its disregard of fundamental constitutional rights.

First, the admission of prior uncharged conduct for non-character purposes disparately impacts people of color simply because Black people are five times more likely to be stopped without just cause than white people. 208

Second, “we expect jurors to determine that [conduct is not accidental] because a particular individual has been involved in several prior instances of uncharged conduct.”209 The potential for jurors to hear, and improperly consider such evidence as proof of propensity, is up to five times higher for Black individuals who, by no fault of their own, have more run-ins with the law.210 Anecdotal evidence supports this conclusion, with one survey participant explaining that “prosecutors look to find ways to offer up evidence regarding prior encounters with law enforcement, even those not resulting in conviction, because it aids the jury in viewing the client as a ‘bad man.’”211 This is even an issue where the prior uncharged conduct is unrelated to the crime at issue, with another participant stating that “judges routinely allow in evidence of dubious connection to the crime at issue, but which shows other crimes or bad acts and is highly prejudicial.”212 Thus, regardless of whether or not a court provides a jury instruction explaining the scope of the evidence under Rule 5-105,213 it is nearly impossible for a jury to separate evidence admitted for one purpose from the propensity the evidence also suggests.214 . . . 

Third, there exists an additional risk to admitting uncharged conduct not contemplated by the rules. That is, jurors may also “use their impressions of the defendant and evaluations of noncharacter evidence to generate a set of alternative stories that explain the event(s) in question.”222 The alternative stories created by jurors are likely to implicitly disfavor people of color as “white subjects tend to assume less favorable characteristics about [B]lack defendants than white defendants and [] such assumptions contribute to these subjects’ greater tendency to find [B]lack defendants guilty.”223 The characteristics intrinsically derived from dual purpose evidence rest on stereotypes, raising the same issues described when discussing an individual’s character for Blackness.

Fourth, these concerns are further amplified by the low standard of proof that governs Rule 5-404(b). If a prior crime is introduced under Rule 5-404(b), it is frequently uncharged or acquitted conduct.224 The conduct, if it was criminal, does not need to be proven beyond a reasonable doubt as it would have to be if it were tried independently. Instead, a jury may consider a prior crime so long as it “is established by clear and convincing” evidence.225 Use of a clear and convincing standard for this purpose undermines a core protection afforded criminal defendants. This erosion of a fundamental right is especially detrimental to Black defendants, who, as previously explained, are much more likely to have documented contacts with the criminal legal system.226 By admitting such evidence, courts are doing for the State what the State has not done–or cannot do–for itself: prove its case beyond a reasonable doubt.

Recommendations

 In light of the fact that (1) individuals are unable to separate dual purpose evidence, (2) Black individuals are significantly more likely to come into contact with the criminal legal system, and (3) people associate bad behavior with Blackness, prior uncharged conduct should not be admitted under any circumstances. Alternatively, the Rules Committee should explain this context in Rule 5-404’s notes, and judges should be required to, if defendants want, give an instruction educating jurors on the fact that people have negative perceptions about Black and Brown people, and as a result they are more likely to have criminal contacts with the legal system because of racialized policing and prosecution.

Footnotes:

• 206 MD. R. EVID. 5-404(b).
• 207 Id.
• 208 Criminal Justice Fact Sheet, supra note 25.
• 209 Goodman, supra note 199, at 10.
• 210 Criminal Justice Fact Sheet, supra note 25.
• 211 See App. at 131.
• 212 Id. at 97; see also United States v. Cunningham, 103 F.3d 553, 556–57 (7th Cir. 1996) (“The greater the overlap between propensity and motive, the more careful the district judge must be about admitting under the rubric of motive evidence that the jury is likely to use instead as a basis for inferring the defendant’s propensity, his habitual criminality, even if instructed not to.”).
• 213 MD. R. EVID. 5-105 (“When evidence is admitted that is admissible as to one party or for one purpose but not admissible as to another party or for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”).
• 214 See Jennifer S. Hunt & Thomas Lee Budesheim, How Jurors Use and Mis-use Character Evidence, 89 J. APPLIED SOC. PSYCH. 347, 350 (2004).
• . . . 
• 222 Hunt & Budesheim, supra note 214, at 350.
• 223 Josephine Ross, “He Looks Guilty”: Reforming Good Character Evidence to Undercut the Presumption of Guilt, 65 U. PITT. L. REV. 227, 262 (2004).
• 224 Ted Sampsell-Jones, Implicit Stereotyping as Unfair Prejudice in Evidence Law, U. CHI. L. REV. 835, 837 (2016).
• 225 Jackson, 230 Md. App. at 459.
• 226 See Criminal Justice Fact Sheet, supra note 25.

Please go to our Moodle course page, where you can answer Comprehension Questions #17.

Government’s Brief in Gilbert:

. . .

[T]he similarities between the VAMC poisonings and the Glenn Gilbert poisoning compel “an inference of a pattern” that proves that the defendant more likely than not was the perpetrator of the VAMC incidents. The similarities consist of:

1. The defendant chose poisoning, a rare manner of committing murder;

2. The defendant selected a syringe and needle as the way to administer the poisons, a rare means of poisoning;

3. The defendant used the VAMC as the identical source for the syringes and needles due to easy access and lack of accountability;

4. The defendant also picked the VAMC as the identical source for the poisons due to their easy access and lack of accountability;

5. The defendant utilized her position and employment as a nurse at the VAMC to administer the poisons under the guise of an innocuous, routine nursing procedure, i.e., a normal saline flush or the routine administration of insulin, thus creating a false sense of trust that afforded the defendant the necessary access;

 6. The defendant chose clear, odorless drugs - epinephrine and potassium - as poisons because their appearances were consistent with the stated purpose of her ruse to allow the necessary access;

 7. The defendant chose cardiac drugs as the poisons - epinephrine and potassium - because they induced immediate cardiac arrest when administered in excessive amounts;

 8. The defendant selected epinephrine and potassium in particular because these cardiac drugs, when injected in lethal amounts, produced symptoms in the victims consistent with their underlying clinical problems, e.g. drug overdose and heart disease in the VAMC victims, and a potassium abnormality in the case of Glenn Gilbert, thus masking the poisonings and making natural, sudden cardiac death appear plausible;

 9. The defendant also preferred poisons produced naturally by the human body whose presence at heightened levels in a deceased person - epinephrine and insulin in the case of the VAMC victims, and potassium in the case of Glenn Gilbert - would be virtually undetectable, and, if detected at autopsy or upon toxicological screening, plausibly explained by the victim's underlying clinical course, including resuscitation efforts;

10. The defendant poisoned the VAMC victims and Glenn Gilbert in part to promote her relationship with Perrault;

11. The defendant poisoned Glenn Gilbert just three months after her first VAMC victim and only four weeks before her next VAMC victim;

 12. The defendant poisoned the VAMC victims and Glenn Gilbert in the same city, Northampton.

 These similarities . . .  demonstrate . . . [a] fully-established correspondence between the charged and uncharged events.

. . .

Defense Brief in Gilbert:

. . .

Here, no such straightforward comparison can be made, because it is unclear whether either tile charged offense or the extrinsic offense was a poisoning.

. . .

The district judge was properly unmoved by the Government's elaborate attempt to create a laundry list of “similarities” between the alleged attempted poisoning of the defendant's husband and the crimes for which she is charged. This list, which is reproduced at page 24-25 of the Government's brief, is best characterized as an attempt to make something out of next to nothing, as when all is said and done, there is no “inference of pattern” or “signature” as the caselaw requires. For example, the Government devotes four of its twelve points to an effort to demonstrate the similarity between the defendant's alleged choice of epinephrine and potassium chloride.[FN5] It cannot escape the overriding fact however, that different drugs were used that produced different results. The district judge was correct when he concluded after considering virtually the same list of similarities that the Government brings to this Court that “... aside from the fact that the defendant is alleged to have made an attempt on the life of her husband by use of an injection, almost no other points of similarity exist.” Renewed Memorandum, at p. 8. The dissimilarities that can be mustered are as great or greater in number as the similarities, even using the Government's inflated list, and are of much more substance. Virtually all of the primary journalistic facts are different.

 FN5. As argued at other points in this brief. the contention that Mr. Gilbert received potassium chloride is nothing more than speculation. Even accepting it as a fact however, the defendant suggests that the two drugs are not in any sense pharmacologically similar. The Government also glosses over in this comparison. its contention that one of the VAMC victims was allegedly poisoned with insulin and another allegedly received ketamine as well as epinephrine.

 • The victims were different. Glen Gilbert was her husband and father of their two children, and therefore had an intimate relationship with the defendant. The VAMC victims were strangers to her outside of her professional relationship to them.[FN6]

 FN6. Compare Trenkler, where both victims were enemies of the defendant's friends.

 • Mr. Gilbert was young and in good health at the time of the alleged attempt on his life. The VAMC patients were either very sick and/or old.

 • The method of administering the drug was different. It is assumed by the Government that the VAMC patients were injected through existing intravenous lines. Mr. Gilbert was allegedly injected directly into his vein.

 • Mr. Gilbert was reportedly injected with one of two syringes taken from a canvas bag, while the other was kept nearby. There is no such report of two syringes or a canvas bag used to store them in with respect to the VAMC deaths.

 • The VAMC patients were injected in a public place, sometimes with other people in the room or nearby. Mr. Gilbert was allegedly summoned to the privacy of his bathroom of his own home in order to be injected.

 • The drugs used were different. The Government hypothesizes that the defendant used potassium chloride on her husband. It hypothesizes that she used epinephrine and/or insulin on tile VAMC patients.

 • All of the VAMC patients suffered a cardiac incident. Although Mr. Gilbert claims to have fainted, he apparently did not suffer any cardiac disturbance since the symptoms he describes are inconsistent with those reportedly experienced by the VAMC patients.

 • The alleged motives are different. The motivation for attempting to kill her husband was presumably to remove him as an obstacle to her romantic interests. The motive with respect to the VAMC patients has been stated by the Government to be to draw attention to herself and her skill at handling medical emergencies.[FN7]

 FN7. To be sure the Government has stated that the defendant acted with many motives. The defendant again notes that the Government cannot even ascribe a consistent motive for all of the murders and attempted murders at the VAMC alone for the alleged attempt on Mr. Gilbert. Neither do all of the supposed similarities match even within the universe of VAMC deaths.

 These significant dissimilarities overwhelm the similarities and undercut any notion that the person who did whatever it is that was done to Glen Gilbert is the same person that killed the VAMC patients, assuming that anyone was killed. As this Court has noted, “[A]t some point a past crime is too dissimilar to be probative of any issue except to show a bent to commit a crime.” United States v. Gonzalez-Sanchez, 825 F.2d 572, 582 (1987).

This comment proposes adding a mandatory racial impact statement to Rule 404(b)(3)’s notice requirement. More specifically, we propose that where prosecutors want to introduce evidence related to drug offenses or “quality of life crimes” for non-propensity purposes under 404(b)(2), they must submit a racial impact report for the relevant offense. We propose the reports detail all available demographic data within 5 years of the specific charge or conviction the government seeks to introduce for a non-propensity purpose. Such statements would help judges assess the true probative value of the past act in Rule 403 balancing tests, and would assist in constructing better, fairer limiting instructions for jurors. 

We Propose Rule 404(b)(3) Take the Following Form. All Edits In Bold type.

(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice; and

(D) include a racial impact report summarizing demographic data for any evidence the prosecutor intends to offer at trial related to drug offenses, vagrancy, loitering, turnstile-jumping, or other relevant poverty crimes.

Please go to our Moodle course page, where you can answer Comprehension Questions #18.

This Rap Song Helped Sentence a 17-Year-Old to Prison for Life

By Jaeah Lee (March 30, 2022)

Ms. Lee is a contributing writer at The New York Times Magazine and a 2021-22 Knight-Wallace reporting fellow.

Tommy Munsdwell Canady was in middle school when he wrote his first rap lyrics. He started out freestyling for friends and family, and after two of his cousins were fatally shot, he found solace in making music. “Before I knew it, my pain started influencing all my songs,” he told me in a letter. By his 15th birthday, Mr. Canady was recording and sharing his music online. His tracks had a homemade sound: a pulsing beat mixed with vocals, the words hard to make out through ambient static. That summer, in 2014, Mr. Canady released a song on SoundCloud, “I’m Out Here,” that would change his life.

In Racine, Wis., where Mr. Canady lived, the police had been searching for suspects in three recent shootings. One of the victims, Sémar McClain, 19, had been found dead in an alley with a bullet in his temple, his pocket turned out, a cross in one hand and a gold necklace with a pendant of Jesus’ face by his side. The crime scene investigation turned up no fingerprints, weapons or eyewitnesses. Then, in early August, Mr. McClain’s stepfather contacted the police about a song he’d heard on SoundCloud that he believed mentioned Mr. McClain’s name and referred to his murder.

On Aug. 6, 2014, about a week after Mr. Canady r­­eleased “I’m Out Here,” a SWAT team stormed his home with a “no knock” search warrant. Lennie Farrington, Mr. Canady’s great-grandmother and legal guardian, was up early washing her clothes in the kitchen sink when the police broke through her front door. Mr. Canady was asleep. “They rushed in my room with assault rifles telling me to put my hands up,” he recalled. “I was in the mind state of This is a big misunderstanding.” He was charged with first-degree intentional homicide and armed robbery.

Prosecutors offered Mr. Canady a plea deal, but he refused, insisting he was innocent. “Honestly, I’m not accepting that,” he told the judge. He decided to go to trial.

I have been reporting on the use of rap lyrics in criminal investigations and trials for more than two years, building a database of cases like Mr. Canady’s in partnership with the University of Georgia and Type Investigations. We have found that over the past three decades, rap — in the form of lyrics, music videos and album images — has been introduced as evidence by prosecutors in hundreds of cases, from homicide to drug possession to gang charges. Rap songs are sometimes used to argue that defendants are guilty even when there’s little other evidence linking them to the crime. What these cases reveal is a serious if lesser-known problem in the courts: how the rules of evidence contribute to racial disparities in the criminal justice system.

Federal and state courts have rules requiring that all evidence — every crime scene photo, DNA sample, witness testimony — be deemed reliable and relevant to the crime at hand before it is shown to a jury. The strength of these rules, however, ultimately rests on the discretion of judges, prosecutors and defense attorneys. Each side makes its case as to how the rules should apply to a particular piece of evidence; the judge makes the final call. Cases like Mr. Canady’s can hinge on interpretation — whether a police officer, prosecutor, judge or jury sees the lyrics as creative expression or proof of a criminal act.

Courts typically treat music and literature as artistic works protected under the First Amendment, even when they contain profane or gruesome material. The small number of non-rap examples that I found — only four since 1950 — involved defendants whose fiction writing or lyrics were considered to be evidence of assault or violent threats. Three of those cases were thrown out; one ended in a conviction that was overturned.

Research has shown that rap is far more likely to be presented in court and interpreted literally than other genres of music. A 2016 study by criminologists at the University of California, Irvine, asked two groups of participants to read the same set of violent lyrics. One group was told the lyrics came from a country song, while the other was told they came from rap. Participants rated whether they found the lyrics offensive and whether they thought the lyrics were fictional or based on the writer’s experience. They judged the lyrics to be more offensive and true to life when told they were rap.

“The findings suggest,” the authors wrote, “that judges might underappreciate the extent to which the label of lyrics — and not the substantive lyrics themselves — impact jurors’ decisions.” Simply describing music as rap, they concluded, is enough to “induce negative evaluations.”

The Irvine findings mirrored those of a study conducted by Stuart Fischoff, a psychology professor at California State University, Los Angeles, almost 20 years earlier. Dr. Fischoff presented 134 students with one of four scenarios about a young man and asked them to rate their impressions of him across nine personality traits, including “caring-uncaring,” “gentle-rough” and “capable of murder-not capable of murder.”

The first scenario described “an 18-year-old African American male high school senior,” a track “champion” with “a good academic record” who made “extra money by singing at local parties.” The second scenario described the same person but added one detail: “He is on trial accused of murdering a former girlfriend who was still in love with him, but has repeatedly declared that he is innocent of the charges.” The third scenario did not mention the murder but instead asked the participant to read a set of rap lyrics by the young man. The fourth mentioned both the murder and the lyrics.

Dr. Fischoff found that the participants who read only about the lyrics reacted more negatively to the young man than the group who had read only about the alleged murder. “Clearly,” he wrote, “participants were more put off by the rap lyrics than by the murder charges.”

At Mr. Canady’s trial in 2016, prosecutors presented evidence that was largely circumstantial. A firearms examiner testified that one of two guns the police found in Ms. Farrington’s apartment, an unloaded .38-caliber revolver, matched the type that the police believed killed Mr. McClain, but conceded there was no way to be certain it was the same gun. Mr. McClain’s cousin testified that he had seen the victim carrying a gun he described as a “black .380,” which prosecutors proposed was similar to the other gun — a loaded pistol — found in Mr. Canady’s home. The government’s theory was that Mr. Canady had killed Mr. McClain and stolen his gun.

But no witness or physical evidence placed Mr. Canady at the crime scene. Mr. McClain’s cousin said that he saw the victim argue with a young man on the day of the murder. He noted that Mr. Canady was one of several people present but not part of the argument. (Mr. Canady told me that he knew Mr. McClain from the neighborhood and that they had friends in common.) A witness who had told the police that he heard Mr. McClain and Mr. Canady discussing guns denied it on the stand.

That’s where the lyrics came in. On the final day of testimony, prosecutors played “I’m Out Here” twice for the jury, first at full speed and then slowed down. A police investigator, Chad Stillman, testified that he heard Mr. Canady say “catch Semar slipping” and other lyrics that he believed alluded to the murder, including references to an alley and bullets hitting a head. Mr. Stillman also read aloud four excerpts from lyrics that Mr. Canady wrote while in jail awaiting trial — a cellmate had turned them over to officers — and interpreted their connections to the crime. “It’s consistently about shooting people,” he said. The lines “blood on my sneaks that’s from his head leaking” and “his last day i took that, im riding around with 2 straps,” Mr. Stillman asserted, referred to Mr. McClain’s head wound and the two guns found in Mr. Canady’s home.

Mr. Canady tried to tell his attorney that the investigators had misheard his song, that an isolated vocal track on his computer would prove he did not name the victim. Where investigators heard “catch Semar slipping,” he said, the actual lyrics were “catch a mawg slippin’,” a slang reference to “someone on the opposite side” and a phrase that he had used in at least one other song.

During cross-examination, the defense attorney pointed out that several of the lyrics Mr. Stillman mentioned did not match the facts of the murder, including the reference to blood on sneakers, “a big Glock with 50 in it,” and an “opp car” — meaning a car belonging to a rival. (The court would later acknowledge that there were, in each of the four exhibits, “other lyrics that do not bear a resemblance to this crime.” One excerpt even ended with a critique of gun violence, in which Mr. Canady condemns all the “killing for no reason” that surrounded him.)

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Prosecutors argued that lyrics Mr. Canady wrote were highly relevant to the case.Credit...The New York Times

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Chad Stillman, a police investigator, interpreted the lyrics during his testimony.Credit...The New York Times

Asked whether he was familiar with rap composition — that boasting and violent imagery are conventions of the genre — Mr. Stillman replied, “Vaguely,” and admitted that he wasn’t sure whether rappers told the truth in their lyrics or not. “I don’t know those artists, you know, what they’ve been through,” he testified. “I know a lot of rappers come from really shady pasts where they’ve committed a large amount of crimes, and they like to brag about those crimes through their lyrics.” (Mr. Stillman, who no longer works for the department, did not reply to a request for an interview.)

Prosecutors relied heavily on the songs in their closing argument. “I think it’s best described as really a tale of two Tommy Canadys,” an assistant district attorney told the jury. “The defendant described it best in his own words,” he added, when Mr. Canady said, “‘I’m handsome and wealthy, with a monster in me.’”

During their deliberation, jurors asked to listen to “I’m Out Here” two more times. After an hour and a half, they found Mr. Canady guilty on both counts. In March 2017, just before his 18th birthday, Mr. Canady was sentenced to life in prison, with the possibility of parole after 50 years.

The rules of evidence are supposed to prohibit the presentation of “character evidence” — information that simply impugns a defendant or reveals past wrongs — to avoid biasing jurors. The use of rap lyrics in Mr. Canady’s case was an example of what legal scholars sometimes call racialized character evidence: details or personal traits prosecutors can use in an insidious way, playing up racial stereotypes to imply guilt. The resulting message, as a Boston University law professor, Jasmine Gonzales Rose, told me, is that the defendant is “that type of Black person.”

“There’s always this bias,” said Andrea Dennis, a University of Georgia law professor who has been studying the use of rap in criminal cases since the early 2000s, “that this young Black man, if they’re rapping, they must only be saying what’s autobiographical and true, because they can’t possibly be creative.” In 2016, Professor Dennis teamed up with Erik Nielson, a University of Richmond professor who studies African American literature, to compile a list of trials in which rap lyrics had been used as evidence. They found roughly 500 defendants, whose cases they discuss in their 2019 book, “Rap on Trial: Race, Lyrics, and Guilt in America.”

I worked with Professor Dennis to track down court documents for more than 200 of those defendants, including their race, how lyrics were used against them and the outcomes of their cases. We found more trials involving rap lyrics in the past decade than during the heyday of the war on crime in the 1990s, which suggests that the practice has become more prevalent despite a broader awareness of racial disparities in the courts and the need for reform. We identified about 50 defendants who were prosecuted using rap between 1990 and 2005, but we found more than double that number in the 15 years that followed.

It’s difficult to pinpoint a single driving force behind this trend. As some scholars have pointed out, the rise of social media, online music platforms and the popularity of rap means that the police and prosecutors have easier access to lyrics and videos. Over the years, courts that have weighed in on the matter of rap evidence have overwhelmingly ruled in favor of admitting and interpreting them literally. Of the cases where court or correctional documents specified the defendant’s race and gender, roughly three-quarters of the defendants were African American men. (Professors Dennis and Nielson note that in some states, such as California, the defendants they identified are predominantly Latino.)

While rap was rarely the only evidence presented in a case, it often played a key role in a prosecutor’s line of argument. Some used snippets of written lyrics or a recording to indicate a confession or articulate a motive. One prosecutor in California argued that lyrics from a notebook found during a search of the defendant’s home showed his intent to murder: Three round bursting real military weaponry / Leaving cold cases for eternity. Others used music videos to show that a defendant had access to a weapon similar to one found at a crime scene or that multiple defendants were in a gang. We found that courts often acknowledged that rap lyrics were prejudicial but still admitted them, concluding that their probative value was greater.

That’s what happened in Mr. Canady’s case. Before his trial, Judge Emily Mueller held a hearing to decide whether to admit several sets of lyrics Mr. Canady wrote while awaiting trial. Judge Mueller acknowledged that introducing rap lyrics to a jury unfamiliar with the genre might cause them to “think this must be some bad guy.” She considered each line in turn. Ambulance come and pick him up aint no face on em / Police come and pick me up aint got shit on me. “It does refer to the face, which I think can refer to a head shot,” she said. “The ambulance coming to pick up the person, and then police coming to pick up the writer. ‘Aint got shit on me,’ which I assume means they don’t have any evidence.” She decided to allow the lyrics because they constituted a sufficient “nexus” to the crime — an idea that’s appeared in numerous rap cases and has been criticized by some for being a meaningless standard. “While I am cognizant of the prejudice,” Judge Mueller concluded, “I don’t believe that it is undue prejudice here.” (Judge Mueller declined a request for an interview.)

Deborah Gonzalez, the district attorney who covers Athens-Clarke County in Georgia, said rap lyrics present a conundrum for prosecutors whose job is to prove guilt. She cautions those in her office against relying on rap lyrics without context or other convincing evidence, but she also sees how they could be valuable. “We’re in this Catch-22,” she said, describing trying to decide whether something was a threat or creative expression. “That’s where it sometimes gets a little iffy out there, when you can’t say that it’s 100 percent one or the other.”

Prosecutors also used rap to justify harsher sentences. In sentencing hearings, information that is off-limits during a trial, like character evidence or prior crimes, is fair game. Of the cases we reviewed, a majority of defendants went on to serve sentences of 10 years or longer; roughly a quarter received life sentences, and at least 17 people received death sentences, including Nathaniel Woods, a Black man in Alabama who was convicted of serving as an accomplice to the murder of three police officers. Mr. Woods maintained his innocence; another man, Kerry Spencer, confessed to the murder and was convicted in a separate trial. When Mr. Woods appealed his verdict, however, prosecutors countered by presenting evidence that included lyrics he was alleged to have written while in jail awaiting trial: Seven execution-style murders / I have no remorse because I’m the fucking murderer. / Haven’t you ever heard of a killa / I drop pigs like Kerry Spencer. Mr. Woods was executed in 2020. He had adapted the lyrics from a Dr. Dre song.

Evidence rules not only fail to curtail racial bias in the courts; they also enable it to thrive in plain sight. That’s why a growing number of scholars, lawyers and legislators are calling for rethinking the rules themselves. Take Federal Rule 403, which gives judges the power to exclude relevant evidence if it has a much higher risk of creating unfair prejudice or confusion, or misleading a jury. What if that rule required judges to first assess whether the burden of proof could be met without evidence like rap lyrics? Prosecutors are already asking this question in Athens-Clarke County, Ga., where Ms. Gonzalez, the district attorney, has studied Professors Dennis and Nielson’s work.

Or what if the rules simply barred rap lyrics in the first place? That’s what two New York state senators, Brad Hoylman and Jamaal Bailey, hope to achieve in a bill they introduced last fall. If passed, it would be the first to prohibit prosecutors from using rap lyrics or other creative expression as criminal evidence “without clear and convincing proof that there is a literal, factual nexus.” The bill, which has garnered support from musicians including Jay-Z, Meek Mill and Kelly Rowland, was approved in committee in January and awaits a full vote.

In 2019, two years into his sentence at the Columbia Correctional Institution in Portage, Wis., Mr. Canady asked the court to grant him a new trial. His lawyer, Jefren Olsen, argued in a brief that Mr. Canady’s trial attorney had demonstrated ineffective counsel by failing to obtain the original recordings of “I’m Out Here” and that the judge should not have admitted the written rap lyrics in the first place.

“The parties argued a great deal” about “whether Canady’s lyrics as a whole constitute posturing and braggadocio or a representation of who he is and what he does,” Mr. Olsen wrote. The overall effect was to convince the jury of “Canady’s general bad character” without necessarily proving “his specific conduct in this case.” In July 2020, Mr. Canady finally obtained the original song mix and the isolated vocal track that he believed would give him the chance to prove his innocence.

Lyrics that Mr. Canady wrote while in jail awaiting trial.Credit...The New York Times

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Mr. Canady’s cellmate turned the lyrics over to officers.Credit...The New York Times

Getting a new trial, however, requires clearing a high bar. Defendants must typically prove that the original lawyers or judge committed a serious error, and they must make a convincing case that without the error, the jury would have been likely to reach a different verdict. Arguments having to do with the interpretation of evidence do not often meet that threshold. Only Mr. Canady knows whether he is innocent. But the rest of us must ask ourselves what we’re asking jurors to judge, what we’re ultimately putting on trial, when the evidence is rap.

In May 2021, the judge who presided over Mr. Canady’s trial denied his request for a new one. (In Wisconsin, the circuit court oversees both the trial phase and the first appeal following a conviction.) Mr. Canady has since challenged the decision in the Wisconsin Court of Appeals. In a new brief, his attorney, Mr. Olsen, argues for a stricter relevance standard to be applied when the evidence in question is rap lyrics. If the appeal is successful, it could set a new precedent in the state.

Meanwhile, Mr. Canady continues to write in prison. “Music is the only way I know how to vent,” he told me. “I pour my heart out, and let my soul do the singing.”

Jaeah Lee is a contributing writer at The New York Times Magazine and a 2021-22 Knight-Wallace reporting fellow. This story was reported in partnership with the nonprofit newsroom Type Investigations and student researchers from the University of Georgia School of Law.

A version of this article appears in print on April 3, 2022, Section SR, Page 4 of the New York edition with the headline: The Lyrics And the Sentence. Order Reprints | Today’s Paper | Subscribe