Implicit Stereotyping as Unfair Prejudice in Evidence Law

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83 University of Chicago Review Online 835 (2016)


In her excellent new article, Professor Anna Roberts attacks
existing doctrine regarding the application of Rule 609, which
governs admissibility of prior convictions for impeachment. She
argues that Rule 609, at least as it has been interpreted by courts,
has turned into a disaster of evidence law. Resting on fictional
assumptions, courts let far too many prior convictions in, espe-
cially against criminal defendants. Doing so seriously distorts the
accuracy of the fact-finding process, in part by discouraging de-
fendants from testifying. In order to remedy this problem, she
proposes that courts should recognize implicit racial bias as a type
of unfair prejudice under Rule 609 and therefore exclude more

Along with the existing literature on Rule 609, Roberts has
demonstrated beyond peradventure that the case law is indeed a
disaster. She has also added the important new insight that part
of the problem with Rule 609 is the implicit racial bias that many
jurors bring with them to the courtroom.

Nonetheless, I am not convinced that her proposed remedy-
recognizing implicit bias as a source of unfair prejudice-is sound
as a matter of evidence law. That remedy, if accepted, cannot be
easily cabined to Rule 609. Roberts's arguments, if taken to their
logical conclusion, threaten to disrupt other rules as well. They
also threaten to undermine some of the rough compromises that,
on the whole, benefit criminal defendants of all races. In short,
her arguments may prove too much.

As I describe below, Rule 609 is not a stand-alone provision
of evidence law. It inherently works together with other provi-
sions, including Rule 403 and Rule 404. In part as a result,
Roberts's arguments cannot be easily limited to the context of
prior convictions admitted against criminal defendants who tes-
tify. First, recognizing implicit stereotyping as a type of unfair
prejudice would affect Rule 609 in other ways, potentially leading
to greater admissibility of convictions in some circumstances. Se-
cond, recognizing implicit stereotyping as a type of unfair preju-
dice would also necessarily affect Rule 403 applications. Third,
and most broadly, Roberts's focus on individuation threatens to
undermine the character evidence rule itself.