I got to thinking….

Have you seen this amazing video from the Onion?  It is good on many levels.  At the risk of sounding like Carrie Bradshaw, after watching this, I got to thinking, could this ever really happen???? I am going to address the reverse of this… i.e. could a black man ask to get treated like a white man in court. because that is a very interesting idea. 

Had to remove the embed because it kept going on autoplay. check it out here.

So, let’s say, hypothetically (of course) You are representing a black man accused of a crime.  and let’s say that that crime isnt the best crime to be accused of if you are a black man.  in this hypothetical identity is not the issue. e.g. your client readily admits he is the person who did the conduct, but he has a defense.

For example, now, this may be a little retro, so forgive me (I believe it is not that retro because these stereotypes are totally still at play in today’s criminal courts) you are an older black man and you are accused of raping a younger (but still an adult) white woman.  The defense is consent.  Could you make a motion to request that you are allowed to have a hired actor who is a white male (is also specially trained on how to look innocent during a trial) sit in the place of your client? 

Sure the DA probably has the right to an in person identification of the defendant in court (see e.g. People v. Green (1979) 95 Cal.App.3d 991, 1003 [affirming trial court’s order that codefendants could not voluntarily absent themselves from the preliminary hearing to avoid an uuber suggestive in court identification situation because  “The People had a right to adduce evidence pertaining to the identity of the perpetrators of the crimes in the form of the in-court identification testimony of the eyewitness-victim in order to meet their evidentiary burden in the proceeding.”] Insert analogy to the right at trial here because I’m too lazy to see if there is law on that but let’s face it if the issue ever came up, given that they have the right at px, i’m sure they have the right at trial.)

So let’s say in this hypothetical for some unknown reason the DA agrees to a stipulation of identity.  I.e. that you will agree to tell the jury that it has been established beyond a reasonable doubt that the defendant is the person who the alleged victim had sex with so they do not need to decide that issue.  The only issue is consent.  Your client may or may not testify.

Could you make such a motion? does anyone out there have the balls or ovaries to make such a motion???

I mean, am I missing something here–and by something i mean a law or case– that would justify the denial of such a motion? Sure there is an obvious ethical issue with this (see e.g. the CA rules of professional responsibility, Rule 5-100 (b): “In presenting a matter to a tribunal, a member: (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law”).  So there’s that. But besides that, what would the prosecutor’s argument be??? “Your honor, it’s not fair! I was expecting to benefit from the fact that the defendant is Black and Black men in our system don’t usually get a real presumption of innocence?”  

And, do prosecutors today truly believe that a black man on trial enjoys the same presumption of innocence as a white man? or as a white woman? or as a WAIT FOR IT white child?  And if they don’t how does it even matter to them if they believe the person is factually guilty? Cause that shit matters to me!





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