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101 Minn. L. Rev. 2243 (2016-2017)
Toward a Critical Race Theory of Evidence

handle is hein.journals/mnlr101 and id is 2311 raw text is: Article Toward a Critical Race Theory of Evidence Jasmine B. Gonzales Roset INTRODUCTION It's not what you know, it's what you can prove in court!' This oft-used movie line shows how even Hollywood recog- nizes the importance of evidence law. At trial, the facts are not determined through an independent investigation of the truth2 but by how the rules of evidence are employed to admit or ex- clude evidence. Attorneys use evidence rules to establish the story that the finder of fact, be it a judge or jury, considers in rendering its findings or verdicts. It is often taken for granted that evidence law applies equally to all persons and provides everyone an equal voice in the courtroom, irrespective of race. This Article challenges these assumptions and reveals how evi- dence law and practice structurally disadvantages people of color. In courtrooms across the United States, certain evidence receives racially disparate admissibility treatment. Evidence of t Assistant Professor of Law, University of Pittsburgh School of Law. I am grateful to the University of Pittsburgh School of Law's Derrick A. Bell Fund for Excellence Award and its Bell Fellow, Alexandra Farone, for provid- ing research assistance and support for this project. I am also indebted to Jes- sie Allen, Megan Block, I. Bennett Capers, Montr6 Carodine, Richard Delgado, Andrea Freeman, Jules Lobel, Benjamin Minegar, Anna Roberts, and Lu-in Wang for insightful feedback. Copyright @ 2017 by Jasmine B. Gonzales Rose. 1. LAW ABIDING CITIZEN (The Film Department 2009); see also TRAINING DAY (Village Roadshow Pictures 2001) (omitting but implying in court). 2. Our adversarial common law system is party-controlled, where facts are developed on the parties' initiative, as compared to inquisitorial civil law systems where the judge has broad discretion to guide the discovery process and evaluate the evidence. See Francesco Parisi, Rent-Seeking Through Litiga- tion: Adversarial and Inquisitorial Systems Compared, 22 INT'L REV. L. & ECON. 193, 195-96 (2002). 2243

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