Document Category: Race

This motion argues that police reliance on a “high-crime area” designation should carry little or no weight in the reasonable suspicion analysis because the label is vague, non-particularized, and often untethered to actual crime data. Drawing on recent case law and empirical research, it contends that such designations are inconsistently applied, racially biased, and frequently used to justify stops lacking individualized suspicion.

This amicus brief argues that Washington’s lifetime felony firearm disarmament statutes violate the Second Amendment as applied to a person convicted of vehicular homicide, because the State cannot identify a relevant historical analogue as required by Heller, Bruen, and Rahimi. The brief explains that the Supreme Court’s text and history test has been applied selectively, allowing courts to uphold felon disarmament through generalized dicta rather than rigorous historical analysis. It traces how felony-based firearm prohibitions operate as racially exclusionary policy shortcuts, given the racial disproportionality of felony convictions. Defenders can use this brief to challenge lifetime firearm bans as applied, particularly where the underlying offense is nonviolent and the State relies on broad assertions about “longstanding” felon prohibitions rather than specific historical evidence.

This brief argues that funding for and admission of an antiracism expert witness is necessary to ensure due process and fairness under both the U.S. and Massachusetts Constitutions, as well as Mass. Gen. Laws ch. 261, § 27C. An antiracism expert’s testimony would assist the factfinder in understanding how structural and interpersonal racism shape perceptions, witness credibility, and evidentiary interpretation—areas outside common experience. Citing Professor Jasmine Gonzalez Rose’s work on “implicit judicial notice,” the brief explains that judges and jurors often unconsciously apply white-normative standards to assess evidence, producing an unequal evidentiary burden for defendants of color. Expert testimony mitigates this bias by contextualizing how race influences policing, charging, and factfinding. The brief grounds admissibility in Mass. G. Evid. § 702 and related case law. It further relies on due process cases to establish that indigent people have a constitutional right to necessary expert assistance. Defenders can use this brief to support motions seeking appointment and funding of experts on race, bias, cross-racial identification, etc. in Massachusetts and other jurisdictions.

Because each stage of Facial Recognition (FR) carries a risk of error, due process and Brady require disclosure concerning every step (pp. 6–7). The five steps are: (1) the probe photo used, (2) the database selected, (3) any photo editing performed, (4) the algorithmic search, and (5) human review (pp. 6, 9–13). The brief explains that FR has particularly high error rates when applied to people of color, women, elders, and children (p. 8). Low-quality or edited probe photos increase error (pp. 10–11), and many FR databases are skewed by overrepresentation of minorities (pp. 12–13). Algorithms operate as “black boxes” with differing reliability (p. 13), while human review is subject to the same biases as eyewitness identification (p. 13). Because the risk of error varies at each stage and may be exculpatory, defense counsel is entitled to full discovery of the FR process, including the algorithm and analyst, both of whom function as impeachable “witnesses” (pp. 26–27). Defenders can use this brief to argue for comprehensive discovery of FR methods and to frame challenges to the admissibility or reliability of FR-based identifications.

Relying on empirical studies from New York City, Chicago, Houston, and Dayton, Ohio, this motion explains that ShotSpotter alerts are unreliable because they rarely lead to discovery of gun-related crime or weapon use. It further argues that ShotSpotter alerts are unparticularized because they improperly equate assessments about a place with assessments about individuals in that place. Finally,  it contends that police should not be permitted to combine a ShotSpotter alert with other vague and unparticularized hunches—like the high-crime-area label—to establish reasonable suspicion, particularly given cited research about how ShotSpotter sensors are predominantly placed in communities of color and police are more likely to describe these same communities as high-crime areas regardless of actual crime rates.

This motion argues that, in cases where the government must prove a prior conviction as an element of the offense, the trial should be bifurcated into two phases. In the first phase, the jury should hear evidence about the non-prior-conviction elements. Only if the jury returns a guilty verdict on these elements should the government be allowed to present evidence on the prior-conviction element. The motion relies on social science research demonstrating that (a) juries make propensity-based inferences when they learn about a defendant’s prior conviction; (b) these propensity-based conclusions are stronger in cases involving Black defendants due to implicit biases; and (c) limiting instructions do not effectively stop jurors from engaging in improper propensity-based reasoning. Because the prior conviction has no probative value with respect to the non-prior-conviction elements and bifurcation provides an easy way to remove the danger of unfair prejudice without compromising the prosecution’s need for the evidence on the prior-conviction element, the motion asks the court to join others around the country and split the guilt-phase of the trial into two different segments.

This draft motion argues that courts should discount officer observations of “blading” when conducting reasonable suspicion analyses, because research shows that blading is a conclusory term that describes amorphous, innocuous, and contradictory behavior. This is particularly true when the term is applied to Black and brown community members who are trained to fear and avoid police. The motion asks the court to join others across the county in holding that “blading” is a generic label based on police hunches and is insufficient to establish reasonable suspicion of criminal activity.  These same arguments could be applied to reliance on “blading” as indicative of criminal activity for probable cause analyses.

This draft motion relies on social science about the effectiveness of mental imagery techniques at combatting implicit biases to argue for a proposed criminal jury instruction that employs a “cloaking” or “perspective-switching” exercise in which jurors are asked to consider if their impressions of the defendant (or a witness) would change if they were a different race. The draft motion collects research showing how pervasive implicit racial bias is, how voir dire alone is ineffective at ensuring defendants get fair trials, and how effective mental imagery exercises can be.  It also explains how other jurisdictions already have mental imagery instructions.

This motion argues for the exclusion of opinion testimony by medical examiners on the manner of death in a homicide trial under both the rules of evidence and the Sixth Amendment jury trial right. It explains that medical examiners speculate as to the “manner” of death based on extraneous information provided to them, notes that these determinations are not based on science, and emphasizes that there is “no standardized or validated system” for making these judgments (pages 18-23). The motion also cites cognitive science in support of the claim that biases, including racial biases, can shape these “manner of death” determinations (pages 23-24). Attached to the motion are (1) transcripts of interviews with two medical examiners, exposing the problems with manner of death determinations; (2) an expert report and law review article detailing the cognitive science problems with these determinations; (3) the non-scientific manual used to instruct medical examiners on how to make these determinations; and (4) a letter signed by 86 forensic pathologists and death investigators about judicial misuse of manner of death determinations.

This draft section of a motion to suppress involuntary statements should be used when the government argues an offensive police interrogation tactic did not “cause” a Black male client’s confession because the client either did not appear outwardly affected/emotional when the tactic was used or responded with aggressive or callous behavior. To support the argument that such causation analyses are improper, it cites social science explaining that Black men are socialized to present as indifferent or even overly-aggressive when they are afraid and also explains that non-Black system actors are typically unable to correctly interpret Black people’s reactions.

This ten-page sample motion argues that judges should not consider a client’s record of prior police contacts, including arrests, that did not result in criminal convictions for purposes of sentencing because such records are (1) inherently unreliable/ambiguous and (2) likely to exacerbate existing racial disparities in the criminal legal system. The motion draws on national data and jurisdiction-specific case studies to show that people of color, particularly Black Americans, are stopped, searched, arrested, and charged at disproportionately high rates, not because of higher rates of crime commission but because of implicit bias in law enforcement. This sample motion also uses local data from Washtenaw County, Michigan, that defenders should replace with their own jurisdiction’s data when available, to demonstrate that these national trends are reflected in the defendant’s jurisdiction as well.  Data from this motion could also be useful to defenders drafting 4th Amendment suppression motions or making evidentiary arguments at trial to exclude evidence of prior police contacts.  To the extent that the court or the prosecutor bring up prior police contacts at pre-trial release hearings, this data could also be useful to argue for exclusion of prior contacts during bail/pretrial release assessments.

In this amicus brief, the ACLU of Iowa relies on social science to point out that juries are likely to (a) form negative impressions of criminal defendants who are associated with rap music, (b) view rap lyrics are more truthful and literal than lyrics from other musical genres; and (c) associate those who write or perform rap lyrics with criminality and bad character.  Pages 16-32 discuss why singing along to rap music is not typically probative in a criminal case, because fictional violent imagery is prevalent throughout popular culture and media, including in hip hop and rap music, but it is a form of artistic expression rather than journalism or autobiography.  Pages 35-37 collect social science research showing the danger of unfair prejudice by noting that jurors are more likely to form negative impressions of defendants as involved in general criminal activity when defendants are associated with rap music. And pages 26-27 discuss the problematic racial justice implications of such findings given that hip hop and rap are associated with Black people and Black culture.

This document summarizes specific findings from a 2023 Cornell study showing that prosecutors tend to lead Black venire members to preferred answers (p. 2); use different parts of speech, syntactic complexity, and sentiment when questioning Black venire members (pp. 3-5); and are more likely to ask Black and female venire members questions about graphic or gruesome topics (such as the death penalty) (p. 5-6). The document also discusses specific intersectional findings about Black female potential jurors (p. 6). In each section, the document gives guidance to defense attorneys on how to use these findings to strengthen Batson/JEB arguments when prosecutors attempt to remove Black and/or female venire members after using these racially-motivated tactics.

This brief challenges Washington Evidence Rule 609 under the Washington State Constitution and objects to the introduction of a prior robbery conviction for impeachment purposes. The brief cites research showing that the admission of prior convictions against criminal defendants has minimal, if any, probative value on the defendant’s truthfulness as a witness, and instead lowers the prosecutor’s burden because of high risk of prejudice (p. 3-7). The brief explains that the categorization of robbery as a crime of dishonesty comes from antiquated honor norms rather than social science (p. 7-9). The brief also discusses the disproportionate impact of impeachment with prior convictions on defendants of color (p. 13-16).

This motion relies on social science demonstrating the unreliability of witness attempts to identify people from surveillance videos/photographs and argues that due process and the evidence rules (Rules 602, 701, and 403) require exclusion of a police officer’s attempt to identify the defendant from a surveillance video.

Pages 2-4:  Discuss studies showing that humans are bad at matching people to images in photos/videos

Pages 4 –9:  Discuss studies showing that image quality (resolution, distance from subject, and moving versus still images), camera angle and viewpoint, lighting conditions at the time of the video or image capture, the presence or absence of obstructions to the camera’s view, and the size of the image captured all affect reliability

Pages 9 – 13: Discuss how situational factors including a lack of prior familiarity, cross-racial identification problems, and time delays between a prior exposure and the viewing of a surveillance photo/video all contribute to mistaken non-eyewitness identifications

Pages 15-16 – Discuss how these studies could also be used to (a) limit or prevent the prosecution from asking the judge/jury to compare a surveillance video/photo to the defendant, (b) obtain favorable expert testimony about the problems of non-eyewitness identification; (c) get the court to take judicial notice of these problems; (d) obtain favorable jury instructions about the problems with non-eyewitness identification testimony; (e) cross-examine non-eyewitnesses more effectively.

This motion argues that, because the routine imposition of marijuana testing as a condition of release is at odds with the current legal, social, and scientific understanding about the risks posed by marijuana use, courts should exercise discretion and not impose a marijuana testing requirement as a pretrial condition of release unless there are specific reasons, beyond mere past or potential use of marijuana, that such use would be dangerous or lead to a failure to return to court.

Pgs. 2-7: discussing changes in federal marijuana enforcement to argue that the federal government no longer views marijuana use/possession as inherently dangerous

Pgs. 9-10: describing racial disparities in marijuana possession enforcement and documenting how Black people are disproportionately arrested for possession while white business owners profit from the marijuana sales industry

Pgs. 11-12: arguing that general marijuana testing requirements are inefficient and divert scarce resources from efforts that actually impact public safety

Pages 17-24 and 32-33 collect research and argue that descriptive statistics – statistical analyses that do not control for other factors – can establish the possibility of racial bias and trigger an evidentiary hearing under the California Racial Justice Act and that regression analyses that account for potential confounding variables provide strong evidence of racial bias under the Act without the need to interrogate individual motives or impacts.

This motion incorporates studies of implicit bias and racially discriminatory policing in San Diego. Studies referenced describe disparities in how police speak to drivers of different races as well as disparities in post-stop outcomes.

p. 13-59 overview studies of Shotspotter accuracy and racially biased implementation

Cites studies demonstrating racial disparities in incidents of police violence, being stopped by police, and resulting perception of police

Based on six years of data of police stops in Philadelphia based on the smell of marijuana, this brief overviews how its use as a justification for a search has vastly increased the number of searches conducted, but less than 20% of the searches relying on the presence of marijuana actually discovered contraband. The brief argues that such discretionary opinions perpetuate implicit bias and result in racially biased outcomes.

This document was filed in support of a motion to compel discovery of the underlying source code, parameters, error rates, input data, results, reports, analyst, and confidence scores of the Facial Recognition program used in a criminal case. The expert explains the steps involved in a facial recognition search and areas where subjective human decisions — and cognitive bias — are likely to impact the outcome of the search.

p. 30 – 37 discuss studies of implicit bias and the ways that racial cues – like a prosecutor characterizing a Black man as ‘angry’ –  can “automatically affect a broad range of decisions and behaviors” within juries.

Civil rights complaint about problems with facial recognition technology – pgs. 9-12 collect research about errors with when images are of low quality, angles are different, resolution is bad; pgs. 12-15 collect research showing facial recognition algorithms are racially biased; pgs. 15-16 collect data about jurisdictions that have banned use of facial recognition technology because of its flaws

Incorporating statistical evidence of racial disparities in police stops and police violence, this brief argues that “what constitutes “suspicious” or “abnormal” behavior for Fourth Amendment purposes must take into account the realities of racism and police violence experienced by communities of color” and that any totality of the circumstances analysis must consider “the fraught, frightening, and sometimes fatal treatment some communities receive from police.”

This expert report collects and describes cutting edge social science describing the problems with eyewitness identifications including: the effects of poor lighting and distance (p. 5); the effects of a quick exposure and the problem of witnesses’ overestimating the length of exposure (p. 5-6); problems with cross-racial identifications (p. 6); problem if witness previously viewed the person in another context (unconscious transference) (p. 7); problem of memory loss over time (p. 7); suggestive instructions & failure to warn that culprit may not be in line up (p. 8); problems with nonblind lineup administration (pp. 8-9); problems with biased lineup composition (bad fillers) (p. 9); what can be learned from how long it takes witness to make ID (p. 10); problems with in court identifications (commitment effect and inherent suggestiveness) (pp. 10-11); problems with witnesses being overconfident about IDs (pp. 11-12)

Incorporates studies on implicit bias generally, as well as specifically within jury panels

Advocates that showing prospective jurors a video about implicit bias will help ensure a fair and impartial jury.

This NAACP amicus brief argues that Missouri’s parole procedures are unconstitutional as applied to juveniles,  because they do not provide juveniles with a meaningful opportunity to obtain release (leading to de facto life without parole sentences). Pages 10-13 rely on statistics to show that  race affects sentencing and that Black men and boys are punished with more severe penalties than their white counterparts. Pages 13-14 document research showing how racial stereotypes of Black men and boys as violent affect peoples’ behaviors and attitudes toward them. Pages 14-15 discuss research showing that judges are not immune to implicit racial biases. The studies discussed in this amicus brief could be useful to defenders who want to highlight the problems of racial bias (explicit and implicit) in sentencing in order to prevent such biases from infecting sentencing decisions.

p. 9-18 overview studies on unreliability of cross-racial identifications and juror tendency to overestimate eyewitness accuracy. Brief also details why expert testimony and cross-examination do not eliminate the need for a jury instruction.