The role of ‘unregulated evidence’ should concern us all, leading law professor says

A witness in a criminal case can make themself seem more credible by wearing a uniform or donning glasses. A sexual assault victim can appear more believable by dressing modestly. And of course, the color of one’s skin can make a juror associate that person with either criminality or innocence.

But as Professor Bennett Capers noted in a recent discussion with staff at the King County Department of Public Defense, dress, race, demeanor, and other non-verbal cues are “rarely subjected to the gatekeeping role of the Rules of Evidence.”

Professor Bennett Capers addresses DPD staff about the role of “unregulated evidence” in trials.

In a lively and at times provocative discussion with about 90 members of DPD’s staff, Capers, a law professor and the director of the Center on Race, Law and Justice at Fordham Law School, said we should all be deeply concerned about a system that fails to take into account what he calls “unregulated evidence.” Capers wrote a paper about this issue, called Evidence Without Rules, published in 2019 in the Notre Dame Law Review.

“Intuitively, all of you know that dress is communicative,” he said, and yet all too often it goes “unchallenged and unchecked.”

The issue is even more troubling when one considers race. In trial after trial, race may not be mentioned, even though “race is going to be present,” profoundly influencing the perception of jurors, he said. “We all have the tendency to implicitly associate dark skin with criminality.”

Research bears this out. A study by Professor Justin Levinson of the University of Hawaii School of Law looked at how jurors viewed ambiguous evidence – surveillance camera photos that showed a masked gunman with his forearm and hand visible. Even though race was never mentioned, mock jurors were more likely to view the person as guilty if the photo showed dark skin and less likely to do so if they saw white skin.

Other studies show that people remember stories differently when the race of the actors is changed – for instance, they’ll “recall” aggressive behavior by Black actors even if that behavior was absent from the story, Capers said.

Such biases are linked to our country’s long history of tying race, particularly Blackness, to criminality, Capers said. After the Civil War, for instance, legislators, judges, and others made a deliberate effort to depict Black people as criminals “because it made it easier for the South to recreate slavery by a different name,” he said. Before the Civil War, slave codes made it legal for people to own humans or even rape them to increase their property, while Black people could not move about freely, gather in groups, even wear certain kinds of clothes that would make them appear above their station, he said. That history is part of the DNA of our modern legal system.

All of this matters during a criminal trial, as well as in plea negotiations, Capers said, “since lawyers are bargaining in the shadow of … this unregulated evidence.” He recalled his days as a federal prosecutor when he used the “coded language” of dress all the time. Lawyers coach some clients to wear glasses to make them seem serious and thus not violent – what he calls the “nerd defense.” Others, accused of white-collar crimes, are encouraged to not wear glasses to make them seem more relatable.

“We should be troubled by a system of justice where guilt or innocence turns on whether a defendant can afford a proper suit or whether the law enforcement officer wears a uniform when testifying or whether the defendant wears glasses,” he said.

In a discussion following his talk, some public defenders related incidents where they knew a prosecutor was using unregulated evidence to try to make a client seem more culpable. Devon Gibbs talked about a case where prosecutors insisted on adding “mister” in front of her young client’s name, making him seem older and thus more culpable, she said.

Another attorney, David Montes, talked about a prosecutor who sarcastically noted the expensive cars the defendant drove, saying, “Everyone knows what these cars mean.” “It was not even a dog whistle,” he said.

Capers encouraged public defenders to call out this behavior in an effort to get the judge to shut down the prosecutor or to request jury instructions. “That’s one way to neutralize unregulated evidence. … Instructions are not perfect, but they can make a difference.” He noted that jury instructions that happen in the moment, rather than as a litany at the end of a trial, have been shown to be more effective.

In his paper, Evidence Without Rules, Capers wrote that some courts use pattern instructions that explicitly address these issues. The Tenth Circuit, for instance, tells jurors that the only evidence they can consider is what the witnesses said under oath and what was admitted as evidence. “Nothing else is evidence.”

A more far-reaching approach, he wrote, is to rethink the Rules of Evidence altogether, reshaping these rules to include not only formal evidence but “what functions as evidence in the minds of jurors.” Imagine the sea change that would occur if the rules included a definition of evidence such as this, he writes: “Evidence includes anything that may come to a juror’s attention and factor into a juror’s deliberation.”

Brandon Rain, an attorney at DPD, said he found Capers’ talk helpful because he underscored the reality that trial work includes “some level of performance and multi-dimensional persuasion.” He added: “You can’t try a case by the numbers. A trial attorney is doing his client a big disservice by forgetting the aspects of human nature that come into play.”

Zac Franz, another attorney, also said Capers’ talk stressed the importance of things he often thinks about – how a client dresses, for instance, or whether the client’s family is in the courtroom. But he said he doesn’t think the issue should cut both ways. The Rules of Evidence should be used to protect the rights of the defendants in the face of prosecutorial powers that can be far-reaching, he said.

“It’s not about the State’s right to a fair trial. It’s about protecting the client’s right to a fair trial,” Franz said.

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