Excerpted From: Mary Nicol Bowman, Seeking Justice: Prosecution Strategies for Avoiding Racially Biased Convictions, 32 Southern California Interdisciplinary Law Journal 515 (Spring, 2023) (195 Footnotes) (Full Document)


MaryNicolBowmanProsecutors have a well-known duty to seek justice, not only convictions. The ABA Standards on Prosecutorial Function makes this clear: “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.” This ABA Standard echoes the language from a 1936 United States Supreme Court case, Berger v. United States, that prosecutors “may strike hard blows [but are] not at liberty to strike foul ones. It is as much [their] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Yet Berger and its progeny have failed to provide meaningful guidance to prosecutors on the line between “hard blows” and “foul ones.” Thus, many prosecutors who are drawn to the job because of its justice-seeking mission face challenges in determining how to best seek justice.

This Article focuses on one specific challenge prosecutors face: identifying rhetoric that, while not explicitly racist, nevertheless reflects or appeals to implicit racial biases. Prosecutors, like other actors in the criminal justice system, are subject to implicit racial biases, which can lead them to use language that plays to juror biases through use of stereotypes. Stereotypes are well-connected associations between groups and traits without a rational evaluation of those associations. Numerous studies show that language can trigger stereotypes, even if the speaker does not intend that result. Prosecutors who are unfamiliar with this research and its application to common prosecutorial arguments may therefore use racially biased rhetoric, that is, language that invokes racial stereotypes, without intending to do so.

Language that triggers stereotypes is racially biased because of its effects, which includes shaping how people remember facts, interpret ambiguous facts, and evaluate witness credibility. Studies show this language has effects on listeners even when those listeners consciously reject the associated stereotypes, particularly when language is coded rather than explicitly racist. Thus, even prosecutors can use language that triggers jurors' stereotypes, even when both prosecutors and jurors consciously reject biased beliefs.

Given these well-documented effects, prosecutors should consider the obligation to “seek justice” to include avoiding racially biased rhetoric. This obligation has become increasingly urgent in light of California's new Racial Justice Act (the “CRJA”), which provides that “[t]he state shall not seek or obtain a criminal conviction ... on the basis of race, ethnicity, or national origin.” One way defendants can prove a violation of the CRJA is by showing that the prosecutor used racially biased language, whether or not use of that language was purposeful. While the CRJA obviously applies only in California, California is often seen “as a trend-setter in the criminal justice arena.” It is also consistent with the “progressive prosecutors” movement seeking to reform the criminal justice system from within to rid it of racial biases and other problems.

Yet the CRJA, like the ABA Rules and case law following Berger, fails to provide prosecutors with effective line-drawing guidance for avoiding racially biased rhetoric. This Article attempts to fill that gap, empowering prosecutors to avoid racially biased rhetoric while still effectively prosecuting cases. It also empowers prosecutors to help protect against racial biases of witnesses and jurors.

Part II discusses in more detail the sources of prosecutorial obligations to seek justice and to avoid racially biased rhetoric, including the systemic challenges for prosecutors who seek to do so. Part III synthesizes the social science research on racially biased rhetoric and how it can affect decision-making. That research provides the foundation for Part IV, which offers several concrete strategies that prosecutors can use in avoiding racially biased language when arguing cases at trial. It also includes strategies prosecutors can use to prevent other participants in the trial from using racially biased language and to minimize the effect of such language when they do so. These strategies collectively will help prosecutors seek justice rather than convictions tainted by racially biased rhetoric.

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In recent decades, prosecutors have played an important role in leading movements for changes within the criminal justice system. These prosecutorial changes have included, but are not limited to, evolving approaches to domestic violence and child abuse issues, as well as creation of drug and veterans' courts to shift the focus from incarceration to treatment and services. This Article urges prosecutors to act in that tradition of reform by changing their rhetoric used in arguing cases and their approach to racially biased language used by other participants at trial.

Specifically, the Article aims to give prosecutors strategies for framing prosecutions to avoid tainting prosecutions with racial bias. Many common prosecutorial arguments and rhetorical choices are likely to trigger jurors' implicit biases, even when prosecutors do not intend that result. And prosecutors' own implicit biases may obscure the racial dimensions of these rhetorical choices. This Article seeks to unpack the underlying social science research showing the racial biases embedded in this rhetoric, and it provides prosecutors with concrete strategies to use in reforming their rhetorical choices while still effectively prosecuting cases. It also provides strategies for prosecutors trying to prevent racially biased rhetoric by other participants in trials and to respond more effectively when others use this language.

California's new Racial Justice Act may require use of these strategies, and prosecutors in other jurisdictions should see them as best practices for implementing their ethical duty to seek justice in a way that prevents racial bias from tainting prosecutions. These strategies can be used by both prosecution offices broadly, and individual line prosecutors more specifically, to seek justice rather than obtain convictions tainted by racially biased rhetoric.

Clinical Professor of Law, Sandra Day O'Connor College of Law at Arizona State University.