Prior Racist Acts and the Character Evidence Ban in Hate Crime Prosecutions

The killing of unarmed African-American Ahmaud Arbery and others ignited a wave of public outrage and re-focused attention on race and the criminal justice system. During the recent federal hate crimes proceedings for Arbery’s death, the prosecution introduced evidence relating to the alleged past racist acts of the defendants. This type of evidence may be seen as highly probative and desperately needed to do justice in hate crimes cases. On its face, however, such type of evidence appears to be inadmissible owing to the well-known—but little understood— evidentiary ban on character evidence prescribed in Federal Rule of Evidence 404(b) and its state and common law analogues. The present article suggests there may be an escape from this conclusion that the evidence is inadmissible under the rule. Rule 404(b) is one of the most confused and controversial of the evidence rules. The clarifications we provide herein are sorely needed, particularly as respects evidence of racism. Attorneys and courts are increasingly being called upon to deal with the admissibility of a criminal defendant’s prior racist acts because of intensifying public scrutiny of race cases and FBI statistics revealing there were more than eight thousand hate crime incidents in 2020. This Article addresses whether, when, and how past acts exhibiting racism—what we will call “racist character evidence”—may be admissible in hate crimes cases consistently with 404(b). We examine seven gateways through which such evidence may be offered, at least some of which provide in our view a permissible path to admissibility. We hope to generate a robust academic debate on admissibility of racist character evidence and to supply guidance to courts and attorneys involved in these and related cases