Confronting Racist Prosecutorial Rhetoric at Trial

68 Pages Posted: 13 Oct 2020

See all articles by Mary Bowman

Mary Bowman

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: September 14, 2020

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.

Keywords: rhetoric, prosecutorial misconduct, racism, social psychology, neuroscience, decision-making, trial court, bias, prosecutors, systemic racism, structural racism, criminal justice

Suggested Citation

Bowman, Mary, Confronting Racist Prosecutorial Rhetoric at Trial (September 14, 2020). Case Western Reserve Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3692780 or http://dx.doi.org/10.2139/ssrn.3692780

Mary Bowman (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Phoenix, AZ
United States
4809653501 (Phone)
85044-4467 (Fax)

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