Confronting Racist Rhetoric

The vast majority of prosecutors are highly ethical. But how should a judge deal with arguments that go over the line. Mary Bowman (Seattle University School of Law) has posted Confronting Racist Prosecutorial Rhetoric at Trial (Case Western Reserve Law Review, Forthcoming) on SSRN.

Here is the abstract: Racist prosecutorial rhetoric is an oft-overlooked component of structural racism within the criminal justice system. Social psychology and neuroscience research explain how racist rhetoric affects decision-making, as well as how to avoid biased decision-making. But current law tolerates and even encourages prosecutors to use racist rhetoric to ensure convictions. This article educates judges, prosecutors, and other scholars about how to recognize racist prosecutorial rhetoric, how to prevent it in most cases, and how to effectively deal with it when it occurs.

Specifically, it focuses on trial courts for solutions, providing them with a checklist of how to draw lines between proper and improper argument. It recommends prohibiting many common rhetorical choices prosecutors use, such as animal imagery and us/them arguments. It also recommends requiring prosecutors to file a motion in limine to justify proposed references to race in individual cases; courts should only allow these references when their probative value significantly outweighs the potential prejudicial effect. The article also contains strategies for effectively preventing biased decision-making when prosecutors use racist rhetoric and a method for tracking repeat violators for more systemic solutions. These solutions would help ensure fair trials and contribute to the racial reckoning in the criminal justice system.

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