Hartman Hotz Lecture - Race-Based Defenses: The Insights of Traditional Analysis

Abstract:     
This article assesses Professor Anthony Alfieri's proposal that ethical sanctions be imposed on defense attorneys who raise claims, such as the "rotten social background" and "black rage" defenses, that could cause racial harm by pathologizing African-Americans or otherwise creating a negative image of the black community. The first part of the article concludes that requiring attorneys to reject non-frivolous arguments based on their potential for racial harm misconstrues the role of the defense attorney, not just in an adversarial system, which Alfieri clearly disdains, but in any rational system of dispute resolution. The trial judge, not the defense attorney, must be the ultimate arbiter of which arguments are permissible. That conclusion leads to the second part of the article, which explores the application of the rules of evidence to race-based defenses. It turns out that the concerns of responsibility theorists (who focus on the scope of criminal defenses), empiricists (who question the reliability of novel defenses), critical legal scholars (who want courts to recognize and understand outsider groups), and feminists (who, like Alfieri, worry about the effect race-based defenses have on outsider groups) can all be accommodated under traditional evidentiary analysis (i.e., the materiality, probative value, helpfulness and prejudice inquiries, respectively). The determination of whether racialized defenses should be permitted depends upon all of these factors. Professor Alfieri is right to emphasize race-consciousness as an important variable, but wrong to give it dispositive impact.

Number of Pages in PDF File: 38

Keywords: Race, ethics, defense attorneys, evidence, prejudice, materiality, Daubert, adversary system, black rage

Accepted Paper Series