Applying Critical Legal Theory to the Law of Evidence (Essay Sample)
research project applying critical legal theory (including Critical Race Theory, Critical Feminist Theory, Critical Queer Theory, and Class Crit Theory) to the law of evidence. The article explores the disparate impact of Rules of Evidence (and evidence doctrine) on traditionally marginalized groups (including: people of color, women, LGBT persons, and limited English proficient individuals). A few examples are: the application of spousal privilege to same sex partners; evidence of flight from authorities by people of color or women in areas plagued by racial or sexual violence; minority culturally appropriate silence interpreted as an adoptive admission; the connection between witness impeachment by prior conviction and historical prohibitions against racial minorities testifying in court; the prosecution’s use of expert witnesses and demonstrative evidence such as sophisticated CGI crime scene reconstruction which most criminal defendants cannot afford to counter; women and apology as evidence of guilt or liability; and the exclusion of so called “cultural evidence” in prosecutions of minority groups (especially indigenous Americans and Hmong immigrants). The paper theorizes how the Rules of Evidence might be different if traditionally marginalized populations had been fully considered in the formation and application of the Rules. This inquiry attempts to reveal how seemingly race/gender/sexual orientation neutral evidentiary rules and doctrines are ladened with cultural assumptions and values held by majority groups and are employed in the legal system in ways that replicate structural subordination found in society. This will be one of only a few works to apply critical legal theory to Evidence law. for assistance in identifying additional examples (which can come from cases, scholarly works, or be hypothetical situations of your own) of how the evidence rules have a disparate impact on minorities. write in the form of a memo.
source..Student:
Professor:
Course title:
Date:
MEMORANDUM
From: Joy Adamson
To: Harriet Hamilton
Date: 6/12/2014
Subject: Applying Critical Legal Theory to the Law of Evidence
Dear Madam,
This memorandum applies critical legal theory, the critical race theory in particular, to the law of evidence. It explores the disparate impact of Rules of Evidence and evidence doctrine on groups that have traditionally been marginalized. How the Rules of Evidence might be different if traditionally marginalized populations had been fully considered in the formation as well as application of the Rules is theorized.
Disparate impact is the negative effect of a standard or a practice that is non-discriminatory and neutral in its intention but, even so, it disproportionately affects people who belong to a given group because of their sex, race, age or ethnicity (UCLA School of Public Affairs 12). The Critical Race Theory (CRT) provides an important analysis of racism and race from a legal perspective. This theory recognizes that racism is entrenched in the system and fabric of the American society. The individual racist does not really have to exist to understand that racism is pervasive within the prevailing culture. CRT uses this analytical lens to examine the existing power structures. The Critical Race Theory specifies that these power structures are based upon white supremacy and white privilege that serves to perpetuate the marginalization of persons of color (Ford 4). Rules of Evidence are rules of law whereby alleged matters of fact that are submitted for investigation at a judicial trial are disproved or established.
Flight from authorities by people of color in areas plagued by racial violence
In areas that have racial violence, people of color have the tendency of avoiding the authorities and law enforcement officers. Fontes (21) pointed out that in America, incidences of law enforcement officers harassing Latino and Black boys, beating up men, and discriminating women draw up more public attention compared to the more frequent situations in which the law enforcement officers have quietly performed their duties to help people. This adds to the perception amongst many people of color that the authorities and law enforcement officers are actually a menace that has to be avoided whenever possible. The police and authorities are seen as a threat. They also try to avoid the authorities and the police also because they are seen as trouble and they do not trust the authorities (Fontes 22).
In essence, since racism is embedded in the system and fabric of the American society, people of color – Blacks and Latinos – have a higher chance of being arrested than whites. Moreover, the moment they are arrested, they have a higher chance of being convicted, and after being convicted, they have a higher likelihood of facing stiff sentences (Kerby 5). This demonstrates that the United States is breaching the International Covenant on Civil...
Other Topics:
- Ontario Coalition Against PovertyDescription: Ontario Coalition Against Poverty Law Essay...7 pages/≈1925 words| MLA | Law | Essay |
- Seperation of Church and StateDescription: Seperation of Church and State Law Essay...2 pages/≈550 words| MLA | Law | Essay |
- The Use of Capital Punishment in the Current World SettingDescription: From the 1980’s, the number of countries undertaking the acts of capital punishment has been gradually declining (Dieter). In fact, at some point in the 1990’s the number of countries that were practicing the law was less than the countries that had abolished the law. A number if reasons can be credited ...3 pages/≈825 words| MLA | Law | Essay |
