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The relationship between African-Americans and the police has traditionally been focused on authority, control, and the enforcement of laws we now acknowledge were racially discriminatory. This historical relationship, when combined with a modern-day narrative that the police disproportionately stop, arrest, and utilize deadly force against African-Americans, has resulted in pervasive, inter-generational fear and distrust of the police. Most African-Americans view police officers not as the heroic protectors they can call upon when in need of help or the hard-hitting investigators they would trust to look into a family member’s murder. Instead, many African-Americans believe police officers have bought into the stereotype of black criminality, and, as a result, will not hesitate to make an arrest without probable cause or kill an unarmed black person. Indeed, I believe feelings of distrust and fear of the police are so prevalent in the African-American community that they have become cultural norms passed down from generation to generation.

Now, consider the impact on law and policy if we accept the premise that distrust and fear of the police are cultural norms in the African-American community. If it is true that the law should mirror norms and expectations regarding behavior, then the law should recognize that most African-Americans fear and do not trust law enforcement. Enter Federal Rule of Evidence 801(d)(2)(B), which allows for the admissibility of “adoptive admissions” against a party-opponent. The rule states that a statement is not hearsay if “[t]he statement is offered against an opposing party and . . . is one the party manifested that it adopted or believed to be true.” In essence, the adoptive admissions rule allows the statements of others to be admitted against a party-opponent if the party-opponent has in some way adopted the statement as his or her own. The adoptive admissions rule is often used to admit evidence of a criminal defendant’s silence in response to an accusation by law enforcement. The theory is that the defendant’s failure to deny the accusation has some probative value in establishing the truth of the allegation. Additionally, courts have admitted evidence of silence to impeach a defendant-witness on the theory that the defendant-witness’ failure to respond to accusations by law enforcement calls into question any explanatory statements offered by the defendant at trial. While I have argued that silence in response to an accusation by law enforcement generally lacks any probative value regardless of whether the silence happens prior to or after the reading of Miranda rights, such silence is particularly irrelevant when the defendant is African-American. Indeed, if it is true that distrust and fear of law enforcement are cultural norms in the African-American community, a group disproportionately involved in the criminal justice system in the United States, then an African-American’s decision to remain silent may reflect these cultural norms rather than consciousness of guilt or dishonesty.

This Article will explore whether common perceptions of law enforcement have risen to the level of cultural norms in the African-American community and consider the effect the existence of such norms should have on the admissibility of silence. Part I of this Article will examine the traditional evidentiary uses of silence as well as commentary concerning the probative value of silence. Part II will define the transparency phenomenon, a term coined by Professor Barbara Flagg. Flagg theorizes that many facially neutral norms and expectations are actually White-specific and the application of those White-specific norms to people of color often results in racial discrimination. Part III will make the case that fear and distrust of the police are African-American cultural norms while trust and reliance upon the police are White-specific cultural norms. Part III will describe the history of police interactions with African-Americans, from slavery to the present day. Stories of negative interactions between the police and African-Americans, which are often passed down from generation to generation, are the genesis of the distrust and fear that African-Americans hold today. Part III will also highlight modern-day events that reinforce African-Americans’ historical perceptions of law enforcement and explore polling data and research establishing the prevalence of fear and distrust of the police in the Black community and trust and reliance upon the police in the White community. Part IV will review research showing that silence, which is a useful tool for those who are fearful and distrustful, has taken on special significance for African-Americans who find themselves interacting with the police in any manner. Part V will conclude by advocating for the exclusion of evidence of African-American criminal defendants’ silence in response to accusations by law enforcement.

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University of Missouri Kansas City Law Review