Race and Evidence

Abstract

This chapter evaluates the role of race in evidence law. It explores ways in which attorneys use race and racism as de facto evidence, judges give White experience preferential admissibility treatment, and courts allow racial injustice to take on evidentiary value at trial. The chapter also considers how racial character evidence is at play in multiple ways in police killings of Black people. The use of racial character evidence is problematic from an anti-discrimination perspective and in light of core concepts of evidence law. With respect to the former, racial character evidence undermines the anti-discrimination principle that people should not be judged on the basis of their race. With respect to the latter, racial character evidence violates crucial commitments in evidence law. Nevertheless, racial character evidence often figures in litigation, unchecked and below the radar.