This paper is a version of an invited lecture given under the auspices of the University of Arkansas School of Law and the Hartman Hotz Fund. Richard Delgado, Making Pets: Social Workers, "Problem Groups," and the Role of the SPCA - Getting a Little More Precise on Racialized Narratives, 77 TEX. These rules require an analysis of the relevance, reliability and prejudicial effect of any piece of evidence.
2002] RACE-BASED DEFENSES 743 arguments cause significant harm to black individuals and black communities by undermining their self-esteem and reinforcing the biases of the dominant white society. With apologies to Professor Alfieri, here is my miniature sketch of the three principles. Alfieri's account of the racial component of the defense's case (which resulted in an acquittal in state, though not federal) prosecutions focuses primarily on two aspects of the case: defense attorneys' scathing attack on.
Thus, these words may be his summary of the defense argument rather than statements from the lawyers themselves. These rules derive from the assumption that the client's autonomy and dignity are the main values and that the lawyer is the client's agent. 43. 48 At a loss for words, Alfieri seems to be saying that neither clients nor lawyers can be trusted to do the right thing.
Alfieri, Defending Racial Violence, supra note 6, at 1334 (rejecting the . . . "[e]levation of the value of protecting the client body from state interference over the value of honoring client subjectivity" by avoiding deviance narratives). Cohn, Offensive Use of the Insanity Defense: Imposing the Insanity Defense Over the Defendant's Objection, 15 HASTINGS CONST. McCollum,67, the Court extended this rule to defensive use of peremptories, essentially considering that the equal protection rights of black jurors and the black community outweighed the interest of the defendant in assembling his own jury.
RACE-BASED ARGUMENTS UNDER THE RULES OF EVIDENCE
argue, based on a review of case law and ethical standards, that "asking a jury to ignore the law and acquit a defendant who would otherwise be found guilty based on the facts and law of the case is not a proper request to make a lawyer," and arguing that judges should play an active role in preventing attorneys' nullification arguments). Likewise, a rotten social background defense, such as that advanced in Nelson's case, is difficult to fit into a traditional doctrine of criminal liability. Psychiatric hospitals are not designed for these types of people; prisons.") (citations omitted); see also LAFAVE, supra note 106, at 332 (noting that, even though the definition of mental illness or defect is broad, "psychopathic personality[] ... seems clearly excluded by the requirement that the suspect has suffered from a mental illness").
Until 1955, the authors of the Model Penal Code asserted that "no American case [had] excluded evidence or refused to charge the defense of insanity simply because the evidence in support of the defense related to neurosis or psychopathic personality or other mental disturbance rather than a psychosis." MODEL PENAL CODE § 4.01 app. In short, many of the racialized defenses Alfieri describes would not get past first base under standard criminal law doctrines because "colorblind" rules declare them immaterial. Nevertheless, the expert felt able to state that "at the height of the infectious feeling.
Rule 702, reflecting the influence of Kumho Tire, was recently amended to state that an opinion is admissible only "if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of sound principles and methods, and ( 3) the witness reliably applied the principles and methods according to the facts of the case." FED. Second, Alfieri is probably wrong about the negative impact of the typical racial defense on the black community. For an account of Colin Ferguson's case, see David van Biema, A Fool for a Client, TIME, Feb.
See Joshua Dressier, Justifications and Excuses: A Brief Review of the Concepts and the Literature, 33 WAYNE L. This is an excellent article that touches on many of the issues Alfieri and I discuss. However, these alternative explanations of the harmful nature of racial defenses, if accepted, do not dictate their admission as evidence.
Again, under the traditional analysis, all four components of evidence must be considered - materiality, probative value, helpfulness and potential prejudicial effect. 2002] RACE-BASED DEFENSES 773 vant research,155 seems relevant and useful enough to merit consideration by a jury, especially in light of the negative image created in the absence of such a defense. It also helpfully explains the defendant's motivations and portrays them as so anomalous as to be unlikely to taint the rest of the black community.
That kind of third-party prejudice against innocent actors is, at first glance, much more tangible than all the negative effects Alfieri mentions. That result makes sense because the “syndrome” was essentially the lawyer's creation (and therefore had little probative value) and fueled rather than contradicted prejudices against inner-city blacks.
CONCLUSION
