Race, Gatekeeping, Magical Words, and the Rules of Evidence

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. In this brief Essay written for the Vanderbilt Law Review Symposium, Reimagining the Rules of Evidence at 50, I bring attention to the ways expert testimony rules seem to play favorites along lines of race and thus entrench a kind of epistemic inequity. And I reimagine expert testimony rules so that they are fairer—and even anti-racist.