109 Iowa L. Rev. 189 (2023)



Evidence law is about information disclosure: what should we tell the jury, and what should we hide from it? Under the narrow, traditional vision of evidence law, judges consider whether providing the jury a given piece of information would “unfairly prejudice” a party, preventing a “just determination” of the case at hand. But this narrow vision of evidence law overlooks two important things: first, the effects of failing to provide the jury information, including the possibility that jurors’ biases will fill in the gaps; and second, it overlooks injustices that extend beyond the parties in the case at hand. These are evidence law’s blind spots: biased gap-filling and systemic injustice. This Article’s first contribution is to identify them.

The Article’s second contribution is to demonstrate them empirically. To do so, the Article reports the first empirical study of the relationship between defendant race and prior conviction evidence.In a set of preregistered experimental survey studies (n = 1131), mock jurors read about the trial of either a Black defendant or a white defendant. The trial, based on the Supreme Court’s iconic decision in Old Chief v. United States, featured a dispute over the information jurors would receive about the defendant’s prior conviction. The results reveal a troubling racial disparity: when mock jurors lacked information about the nature of the defendant’s prior conviction, they rated the Black defendant more likely to be guilty than the white defendant. Interestingly, though, when the prosecutor introduced more information about the prior offense, the racial disparity disappeared. In other words, when mock jurors lacked the information that the Old Chief Court famously required be withheld from them, they engaged in the sort of biased gap-filling that compounds systemic injustice, all outside traditional evidence law’s narrow sightlines.

Finally, the Article discusses two normative implications that flow from these findings. First, the results supply a new impetus for reforming the rules governing prior conviction evidence, and they imply that these reforms should take a somewhat different form than some scholars, courts, and legislators suggest. Second, and more fundamentally, the results may help illustrate the need for a new, broader vision of evidence law. This Article begins to sketch out that broader vision and argues that it finds support in the text, history, and purpose of the Federal Rules of Evidence, as well as an emerging body of case law.

Thursday, November 16, 2023