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Race and the Assessment of Credibility Michigan Journal of Race and Law Volume 1 1996 The Color of Truth: Race and the Assessment of Credibility Sheri Lynn Johnson Cornell Law School Follow this and additional works at: https://repository.law.umich.edu/mjrl Part of the Law and Psychology Commons, Law and Race Commons, and the Law and Society Commons Recommended Citation Sheri L. Johnson, The Color of Truth: Race and the Assessment of Credibility, 1 MICH. J. RACE & L. 261 (1996). Available at: https://repository.law.umich.edu/mjrl/vol1/iss2/1 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Race and Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THE COLOR OF TRUTH: RACE AND THE ASSESSMENT OF CREDIBILITY Sheri Lynn Johnson* IN TRO D U CTIO N ...................................................................................263 I. UNDERSTANDING THE EFFECT OF RACE ON CREDIBILITY D ETERM IN ATIONS ..................................................................................266 A. A Brief and Selective History of Race and Credibility in the Courts ............................................................................................. 267 B. Modem Race and Credibility Cases ...............................................276 1. Two High Profile Cases ..........................................................276 a. W illiam Jackson ......................................................................276 b. C larence Brandley ..................................................................277 2. Barry Lee Fairchild .................................................................280 a. The Facts................................................................................. 280 b. The Legal Claim .....................................................................285 3. Leroy Joseph "Ricky" Drayton ..............................................292 a. T he Facts................................................................................. 292 b. The Legal C laim .....................................................................298 4. Other Modem Examples ........................................................304 a. ProsecutorialMisconduct Cases ............................................305 b .JurorA ccounts .......................................................................308 c. Supreme Court References...................................................... 309 C. The Psychological Dynamics of Race and Credibility A ssessmen ts ....................................................................................312 II. CONTROLS ON RACIALLY INFLUENCED CREDIBILITY D ETERM IN ATIONS ................................................................................317 A. Legal Devices for Reviewing Race-Based Credibility Screening by A dvocates ..................................................................................318 1. D efense A ttorneys ...................................................................318 2. Prosecutors ...............................................................................319 * Professor, Cornell Law School. B.A. 1975, University of Minnesota; J.D. 1979, Yale Law School. This article owes its existence to my clients, Barry Lee Fairchild, who was executed by the State of Arkansas on August 31, 1995, and Ricky Drayton, now on death row in South Carolina. I am grateful to Stephen Garvey, Steven Clymer, John Siliciano, Nancy Cooke, and Winnie Taylor for their comments. 261 Michigan Journalof Race & Law [VOL. 1:2 B. Legal Devices for Regulating Racially Influenced Assessments of Credibilityat the Guilt Adjudication Stage ................................ 320 1. V oir D ire ................................................................................... 320 2. Inflammatory Arguments ...................................................... 321 3. Juror Misconduct ..................................................................... 322 4. Proof of Guilt Beyond a Reasonable Doubt ........................ 324 C. Legal Devices for Controlling the Influence of Race on CredibilityAssessments in the Post-Conviction Process .............. 325 1. State Post-Conviction Proceedings ....................................... 325 2. Federal Habeas Corpus .......................................................... 326 M. PREVENTING RACIALLY BIASED CREDIBILITY DETERMINATIONS .... 327 A. Substantive Restrictions on the CredibilityInferences That May Be Drawnfrom Race .............................................................. 327 1. Inferences from Race to Truthfulness .................................. 328 a. Witness-Specific Racial Motivations...................................... 329 b. Racial Characteristics............................................................. 330 c. Racial Propensity.................................................................... 330 d. IntraracialAlibis or Other Exonerating Testimony .............. 331 e. IntraracialAccusations or Other Inculpatory Testimony ...... 332 f. InterracialAlibis or Other Exculpatory Testimony ................ 333 g. InterracialAccusations or Other Inculpatory Testimony ...... 335 2. Inferences from Race to Accuracy ........................................ 336 a. Witness-Specific Abilities ....................................................... 336 b. Racial Characteristics............................................................. 337 c. IntraracialIdentifications ....................................................... 338 d. InterracialIdentifications ....................................................... 338 e. Interpretive Competence......................................................... 339 B. Mechanismsfor Enforcing ProhibitedRace and Credibility Inferences ........................................................................................ 339 1. Incorporating Constraints on Race and Credibility Inferences into Existing Legal Mechanisms ........................ 339 a. Ineffective Assistance of Counsel............................................ 340 b. Inflammatory Questions and Arguments .............................. 341 c. JurorMisconduct Allegations ................................................ 341 d. Habeas Corpus Review of State Factual Findings................. 342 2. Creating a Mechanism for Constraining Unconstitutional Credibility Determinations ..................... 342 CO NC LU SIO N ........................................................................................ 345 SUMMER 19961 Race & Credibility Then you will know the truth, and the truth will set you free.1 The truth will make us free. The truth will make us free, The truth will make us free someday. Oh deep in my heart, I do believe, We shall overcome someday.2 INTRODUCTION Everything we want to believe about truth and justice is that there is one truth, a color-blind truth, which, in the end, will lead to justice. On the other hand, anyone familiar with the American his- tory must admit that the truth has not always set people free in this country. Are race-based assessments of credibility a thing of the past? "White lies" still refer to harmless, socially useful fibs, and "black lies" mean evil, irredeemable falsehoods. Are these idioms meaningless anachronisms? Just what color is the truth that will make us free today? The verdict in the first Rodney King beating trial was a seminal event for many Americans. For some, the trial underlined the fla- grancy of racial injustice; for others, it reopened racial justice issues they had thought-or had wished to think-were closed. I start with the Rodney King verdict not because it is a prototypic example of the problem I want to address, but because it is still such a promi- nent racial justice icon that a shorthand, so convenient for introductions, is possible. It was difficult for most of us to watch the videotape of police officers beating Rodney King, listen to their tes- timony, and understand how the first jury could have found Officers Powell, Koon, and Briseno credible. Were they believed because they were white, as was most of the jury? The Latina juror in the state case reported that she had been mocked for her desire to re- view the videotape, saying that "it's like they wanted to see what they wanted to see.' There are at least two responses that believers in color-blind truth can make. First, they might explain that the problem was that Rodney King did not take the stand to provide a human version of the videotape's truth. That Powell and Koon were later convicted in the federal trial, in which King did testify, lends some support to 1. John 8:32. 2. WE SHALL OVERCOME, traditional folk song. 3. Joseph Kelner & Robert S. Kelner, The Rodney King Verdict and Voir Dire, 207 N.Y.L.J. 1003, 1006 (1992). Michigan Journal of Race & Law [VOL. 1:2 this theory. If correct, however, this theory simply moves the credibility issue one step back in time, for it leads to the question of why the state prosecutors chose to keep King off the stand. A second swing from the color-blind comer might be that this case was not about credibility at all, but about a warped notion of just deserts: the jurors did not believe the police officers but acquit- ted them anyway. This response suggests that if there is a problem, I have focused on the wrong one; the real problem is actually one of animosity
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