In the criminal courtroom, race can often feel like the elephant in the room. Yet, for a criminal defense attorney, the inability to discuss how race may have impacted a defendant’s case can result in missed opportunities to advocate effectively on behalf of the client.
Discussions of race can be limited in the courtroom for a number of reasons, but it is important to acknowledge that some restrictions have been placed by the court itself. The U.S. Supreme Court diminished the legal relevance of discussions of race in the Fourth Amendment context. Through its decisions, the Court steered the relevant analysis away from the thorny issue of a police officer’s racial motivations and instead focused on whether objective grounds can be provided for police searches and seizures. In Terry v. Ohio, 392 U.S. 1, 21–22 (1968), the Court established this “objective standard” of review for police investigatory stops requiring police officers “to point to specific and articulable facts which, taken together with rational inferences from those facts,” justify an intrusion. Later, in Whren v. United States, 517 U.S. 806, 813 (1996), the Court explicitly stated that police officers’ subjective intentions have no place in Fourth Amendment analysis. The Court expressly allowed even pretextual police stops to be deemed lawful so long as an objective justification could be provided.
Contrary to what the Supreme Court suggested in Whren, courts cannot always engage in meaningful review of police stops without considering the influence of racial bias. An obvious criticism of the Whren decision is that it fails to prohibit intentional racial profiling. But the Court’s decision also fails to consider the unconscious influences of implicit racial bias on a police officer’s evaluation of a defendant’s behavior—an evaluation at the cornerstone of reasonable suspicion analysis.
While current legal standards for Fourth Amendment analysis suggest that police officers can make wholly objective assessments of citizens’ behaviors, a growing body of research suggests otherwise. Social scientists have engaged in many studies confirming the impact of implicit racial bias on people’s judgments and decision making. These studies have demonstrated that negative stereotypes associating black men with criminality can be triggered automatically and play an unconscious role in an individual’s thinking. Moreover, implicit racial bias can have an impact at a fundamental level—shaping even the perception of events. Police officers are not immune from the influence of implicit bias; in fact, given the nature of their work, they may even be more susceptible to its influence.
Thus, in Fourth Amendment analysis, it is important to consider how advocates can effectively raise the argument that implicit racial bias may have influenced a police officer’s judgment of suspicion. Despite increased awareness of the profound impact of implicit racial bias, however, many questions remain as to how best to address racial bias in the courtroom. Indeed, while studies have confirmed that implicit racial bias can affect one individual’s interpretation of another’s ambiguous behavior, this knowledge does not translate easily into legal strategy in the courtroom.
However, even where it may not be possible to determine whether implicit racial bias has actually influenced a police officer’s judgment at a specific point in a given case, identifying the opportunity for this to occur may nonetheless benefit the client. Through advocacy, defense counsel can focus the court’s attention on the critical points in a police officer’s decision making where his or her judgment is most vulnerable to biased thinking. Such advocacy would seem to be most beneficial in cases where there is a lack of clear evidence of criminality.
Be prepared to explain why implicit racial bias is relevant given the legal standard. In Whren, the court held that a police officer’s subjective intentions are not relevant to ordinary Fourth Amendment analysis. This holding, however, should not preclude an advocate from making the argument that unconscious racial bias may be influencing a police officer’s perceptions and judgments about a defendant’s behavior. Advocates may need to clarify that they are not arguing that the officer was motivated by race, but rather urging the court to consider critically whether the defendant’s race might be influencing how the officer interpreted what he observed.
To justify a Terry stop, the relevant circumstances must provide a reasonable basis for police to suspect that a particular individual is engaged in wrongdoing. Consideration of whether a police officer has based his or her suspicion on generalizations about the behavior of members of a specific group, rather than objective facts specific to the individual defendant, would seem relevant to the court’s reasonable suspicion analysis. Thus, advocates should have an opportunity to question whether a police officer’s assertions about a defendant are truly based on a defendant’s actions, rather than assumptions about the defendant that may be based on race.
Encourage the court not to rely unduly on a police officer’s experience and expertise. In reasonable suspicion analysis, courts are to credit the practical experiences of police officers. Such deference, however, fails to consider that police officers may be influenced by implicit racial bias. While courts are to defer to police officers’ experience and expertise, this should not compromise the court’s efforts to engage in meaningful review. Advocates may need to explain that while courts are to give deference to police officers, they can nonetheless question why the officer’s experience and expertise led him or her to give a particular meaning to an asserted fact.
Distinguish truly objective facts from the police officer’s interpretations of the defendant’s behavior. To begin to identify the potential influence of bias in police officer decision making, it is important for advocates to have an opportunity to separate observable facts from the police officer’s interpretation. Thus, as a starting point, it may be necessary for advocates to point out the subjective aspects of asserted facts. This may be done by asking what the officer actually observed. This should set the groundwork for questioning the officer about what he or she observed the defendant doing that led the officer to judge the defendant’s behavior to be suspicious.
Once the truly objective facts are identified, question why particular behaviors are deemed suspicious. Advocates should challenge a police officer’s explanation of why, based on his or her expertise, the officer found a particular behavior to be suspicious. By doing so, advocates can identify key moments where police officers engage in logical leaps without adequate explanation.
Encourage the court to consider alternative narratives drawn from observable facts. In reasonable suspicion analysis, courts are to consider the totality of the circumstances. In finding that objective facts when taken together warrant reasonable suspicion, courts often place the facts into a narrative context. The government’s narrative predictably tends to be one of criminality—supporting the legal standard, but also aligning with prevalent negative racial stereotypes. As these narratives may have an inherent appeal, it is important that advocates present alternative narratives: An individual traveling on I-95 may be a drug courier transporting drugs, but he or she also might be a retiree traveling to see relatives.
An advocate may begin to move the court away from the status quo by demonstrating how observable facts put forth to support a finding of suspicion can also support an alternative narrative of innocence. Even more, an advocate may expose the potential influence of implicit racial bias by suggesting that the court imagine that the defendant is of a different race while considering the government’s asserted narrative.
ABA Criminal Justice Section
This article is an abridged and edited version of one that originally appeared on page 35 of Criminal Justice, Summer 2017 (32:2).
For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
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