Are There Stories Prosecutors Shouldn't Tell?" The Duty to Avoid Racialized Trial Narratives

Abstract

The purportedly race-neutral actions of courts and prosecutors protect and perpetuate the myth of colorblindness and the legacy of white supremacy that define the American criminal system. This insulates the criminal system’s racially disparate outcomes from scrutiny, thereby precluding reform. Yet prosecutors remain accountable to the electorate. In recent years, activists and community organizers have mobilized communities to support and elect prosecutors who have pledged to address the racial inequities of the criminal system. After a summer of pro-tests for racial justice and growing acceptance for the demands of the Movement for Black Lives, we find ourselves in a moment that demands and necessitates transformative proposals that call on prosecutors to reject the myth of colorblindness and adopt a race-conscious approach to criminal prosecution. This creates an opportunity—and need—to generate and articulate specific and innovative frameworks to change the culture of prosecution. This Article seeks to provide one such framework by examining the ethical duties of American prosecutors in the underexplored area of prosecutorial storytelling. This Article focuses on trial narratives as a lens through which to view the ethical duties of the prosecutor writ large, arguing that trial narratives that advance or invoke a racialized stereotype or stock story violate the prosecutor’s duty to justice. A race-neutral or “colorblind” approach to prosecution ignores the ethical violations inherent in racialized prosecutorial storytelling. By contrast, a color-conscious approach offers prosecutors a path to address the systemic racism that pervades every aspect of the American criminal system—including the stories that prosecutors tell.