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Vanderbilt Law Review

First Page

1855

Abstract

Although it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence-what is deemed relevant, what is deemed trustworthy-to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.

One area that has escaped racialized scrutiny-at least of the type I am interested in-is that of expert testimony. Even in my own work on race and evidence, I have avoided discussion of expert testimony. In this brief Essay, I hope to rectify this omission. In a sense, my goal is twofold. I first seek to bring attention to the way expert testimony rules seem to play favorites along lines of race and thus entrench a kind of epistemic inequity. I then hope to reimagine expert testimony rules so that they are fairer-and even anti-racist.

To situate my argument, I begin by zooming out to look at the Rules as a whole. Part I provides a brief overview of the many ways evidence has always been raced, from what is deemed relevant and why, to who is deemed credible and who is not. Part II narrows the focus to expert testimony, providing a racial reading of Frye v. United States, Daubert v. Merrell Dow Pharmaceuticals, Inc., and Rule 702. This sets the stage for Part III, in which I imagine a better, different Rule 702 through a critical race theory ("CRT") lens. Finally, in the Conclusion, I gesture toward a critique of evidence law in general and call attention to a different kind of gatekeeping that has for too long impoverished evidence scholarship.

As I have observed in prior work, one of the pleasures "of contributing to symposia-especially symposia where each contribution is brief-is the ability to engage in new explorations, test new ideas, and offer new provocations." Allow me to add another benefit: symposium essays have the potential to be uniquely generative, to be "conversation starters," and to lay the groundwork for longer projects. I certainly hope that will be the case here for this Symposium, Reimagining the Rules of Evidence at 50.

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