Antiracist Expert Evidence

Since 2020, when mass protests against racism swept across the United States, scholars, lawyers, and the general public have become increasingly aware that racism permeates society and the criminal legal system, from overt racial animus to the nuanced effects of structural racism. Demonstrating the influence of racism is therefore vital to the practice of criminal defense, yet many attorneys do not know how to prove racism in court. We surveyed over seven hundred criminal-defense attorneys across the United States, and nearly half had never heard of expert witnesses testifying or submitting written reports on racism—what we call “antiracist expert evidence.” This finding would be unremarkable if such experts were unhelpful, but nearly ninety percent of surveyed attorneys expected that antiracist expert evidence would benefit their criminal defense practices. This Article is the first to provide an empirical, theoretical, and doctrinal examination of the use of expert testimony to prove racism. It first conceptualizes, categorizes, and instantiates six different expressions, manifestations, or mechanisms of racism relevant to criminal defense: (1) racist affiliations and views; (2) racist language, sounds, and imagery; (3) racial stereotypes; (4) racial disparities; (5) implicit racial bias; and (6) the impact of racism on health and behavior. It next presents and analyzes survey results showing criminal-defense attorneys’ levels of familiarity with antiracist expert evidence, their perceptions of its utility, and the barriers they anticipate to its introduction. This Article then examines these barriers and identifies means of overcoming them. By elevating the voices of criminal defenders and reviewing federal and state case law, we seek to spark the collective imagination about how antiracist expert evidence can help level the evidentiary playing field for criminal defendants.