Race, Reasonableness, and the Rule of Law – Note by Aaron Goldstein

From Volume 76, Number 5 (July 2003)

In recognition of the fearsome powers faced by defendants, the criminal justice system has built into it a multitude of counterbalancing defendants’ rights. There exists, however, a special breed of criminal trial involving a third and even weaker voice, a voice that may not even be heard during the trial. Criminal defendants who claim they committed acts of violence only in self-defense place their victims on trial – sometimes rightfully, sometimes to avoid well-deserved guilt. The wealth of protections afforded to criminal defendants give them wide latitude to attack victims who do not enjoy such robust protections.

While a rich dialogue regarding victims’ rights in general already exists, this Note focuses on a particular type of victim and a particular type of attack. This Note deals with the play of the race card by criminal defendants to justify their decision to maim or kill, and argues that appeals to racial stereotypes ought to be excluded under the Rules of Evidence. Not only would this serve to protect the rights of the victim to a fair assessment of the victim’s actions at trial, but it would also have positive reverberations among law enforcement and private citizens outside the court. Such evidentiary rules would put everyone on notice that race is no basis for taking a life.

Part I of this Note discusses particular instances where racial stereotypes have played a part in a claim of self-defense. Part II provides a normative argument for why evidence regarding a victim’s race ought to be excluded. This Part also differentiates claims of self-defense that involve appeals to race from claims that do not rely on socially constructed generalizations regarding race, gender, and so on. Part III provides a legal basis and a formal proposal for a rule excluding evidence of the victim’s race as well as suggestions for how such exclusions might be implemented.



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