Objective Tests and Subjective Bias: Some Problems of Discriminatory Intent In The Criminal Law

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This article explores the relationship between the Supreme Court's efforts to combat racial discrimination in the criminal justice system and it's sometimes-conflicting goal of streamlining the pretrial and trial process. The Supreme Court has frequently stated its commitment to eliminating racial bias from the system, and in fact has made significant strides in that direction. Nevertheless, the article observes an interesting anomaly: on the one hand the Supreme Court continues to insist that defendants prove discriminatory intent to establish improperly race-based governmental action; on the other, the Court increasingly insists that objective rules govern the pre-trial and trial processes. The article offers by way of examples the recent Supreme Court holding that the subjective motive of a police officer is irrelevant to determining the reasonableness of his actions for Fourth Amendment purposes, as well as the long-standing rule preventing the use of juror testimony to impeach the deliberations of a jury. The article tries to explain precisely how such rules, though advancing judicial economy, make it more difficult to detect impermissible race-based decisionmaking, and notes that contrary rules in a variety of areas could either facilitate or obviate the difficult proof of purposeful discrimination. Given these limitations, the author proposes and evaluates some alternative solutions including improved collection of data and class action civil rights suits.
Original languageEnglish (US)
Article number6
Pages (from-to)559-604
Number of pages46
JournalChicago-Kent Law Review
Issue number2
StatePublished - 1998


  • criminal
  • bias
  • Intent


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