Blackness as Character Evidence

Federal Rule of Evidence 404 severely limits the government's ability to offer evidence of a defendant's character trait of violence to prove action in conformity with that trait on the occasion in question. The Rule states that such character evidence is generally inadmissible when offered to prove propensity. The Rule also allows the government to offer evidence of an alleged victim's character for peacefulness in homicide cases where the defendant asserts the self-defense privilege. Although criminal defendants may offer character evidence under limited circumstances, Rule 404 creates a significant disincentive for doing so. Where a defendant offers evidence of an alleged victim's character trait to prove action in conformity therewith, this decision not only opens the door for the prosecution to offer positive character evidence on behalf of the victim but it also allows the prosecutor to offer bad character evidence against the defendant. Similarly, if the government offers evidence of a homicide victim's character for nonviolence to rebut a claim of self-defense, doing so opens the door to the introduction of the victim's bad character evidence. Now, consider the widely held stereotype or belief that African-Americans are inherently violent. Scholars sometimes deem beliefs or biases like this one to be "implicit" in that they often exist on a subconscious level. The individuals who harbor such biases may not even know they are doing so. The implicit belief that African-Americans are inherently violent can be used as both a sword and a shield in a trial concerning a violent criminal act. Rather than offering inadmissible evidence of a Black defendant's character for violence, the government can instead offer evidence of the defendant's stereotypical Blackness, thereby playing upon the jurors' implicit biases to establish the guilt of the defendant. Likewise, a non-Black defendant need not offer evidence of a Black victim's violent character to support a claim of self-defense. Rather, the victim's stereotypical Blackness is sufficient character evidence. Because stereotypical Blackness implies a propensity for violence (among other character traits), a non-Black defendant can benefit from this character evidence without having to take the risk that his or her own violent past might be offered at trial. The State v. George Zimmerman trial is a recent example of this strategy. While most scholars acknowledge the existence of certain stereotypes and biases against African-Americans and even recognize that those biases may have an impact on our justice system, the covert and silent nature of implicit biases makes them more difficult to ferret out. How can a trial judge successfully stop jurors from considering certain racial stereotypes when many of the jurors do not realize that they harbor those racial stereotypes? This Article will explore solutions that may serve to eliminate or rebut the unspoken evidence that is often at play when African-Americans navigate through our justice system. Part I of the Article will focus on the development of the Federal Rule of Evidence that prohibits the use of propensity evidence to prove action in conformity therewith. Part II of the Article will define the concepts of implicit bias and transparency phenomenon and explore how those concepts can come together to create evidence of stereotypical Blackness. Part III of the Article will discuss the use of Blackness as character evidence in the State v. George Zimmerman trial. Lastly, Part IV of the Article will analyze possible solutions that may eliminate jurors' consideration of evidence of stereotypical Blackness or at least reduce its probative value.