Excerpted From: Kasey Anne Hooker, Beyond an Unreasonable Inference: Introduction of Gang Evidence and Implicit Bias in Oregon Criminal Courts, 102 Oregon Law Review 211 (2023) (182 Footnotes) (Full Document Requested)


KaseyHooker.jpegWhat is the first image that comes to mind when I ask you to imagine a typical gang member? Instantly, without rationalizing your conception, what visual did your psyche create? If you pictured “a dangerous-looking dark-skinned thug,” then you are guilty of stereotyping. If you did, you certainly are not alone. This is the stereotypical image American society has created for gang members generally. These racial stereotypes existing among Americans, depicting minorities as dangerous criminals, are perpetuated by the media we consume. For example, “Google an image search for 'gang member,”’ and you will see various images of dark-skinned men with tattoos. Politicians, across diametrically opposed party lines, exacerbate these misconceptions through harmful rhetoric, while lacking the evidence to support their claims. These “metaphors in the journalistic and political field (where mentions of 'superpredators,’ 'wolfpacks,’ 'animals' and the like are common-place)” coupled with the mass incarceration of Black Americans have “supplied a powerful common-sense warrant for 'using color as a proxy for dangerousness.”’

Stereotypes and negative attitudes toward certain social groups are particularly distressing in the context of criminal jury trials. The United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury.” This right to a fair trial by an impartial jury is a primary protection owed to a defendant under the Sixth Amendment. To determine if a juror is truly impartial, “the relevant question is 'did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed.”’ When jurors choose to employ their implicit biases in the jury room, they compromise the defendant's right to a fair trial. While society may generally acknowledge that stereotypes are problematic ways of labeling people based on preconceived notions about a particular social group, these negative conceptions still run rampant throughout the collective conscience of American society.

This Comment's purpose is to analyze the bias exhibited against gang members and suggest solutions for what Oregon can do to prevent juror bias against gang members from corrupting the integrity of jury verdicts. Part I of this Comment will (1) discuss some of the history of racial bias in the United States' criminal justice system--including the various forms of systemic racism employed throughout the nation, (2) discuss how those laws were based on public opinion fueled by negative racial stereotypes and attitudes, and (3) examine the modern public's bias toward gang members and how that bias derives from racial animus. Part II will use a behavioral realism framework to discuss how implicit bias against gang members negatively influences decisions in the jury room. Finally, Part III will discuss two possible alternatives for rectifying this issue in Oregon: a revision to the Oregon Evidence Code or an Oregon Supreme Court rule that would limit the admissibility of gang evidence as character evidence under the prior bad acts rule.

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This Comment acknowledges that crimes committed in furtherance of gang membership are not trivial matters. The recent surge in Portland's homicide rate in the past four years is unarguably alarming. The problem is how this matter is handled. Increasing incarceration rates for anyone affiliated with a group labeled as a “gang” is not the solution to preventing this violence. If anything, that would increase the violence. One Portland-based study discussed that “[m]ost of the homicides resulted from ongoing personal disputes, followed closely by ongoing gang or group conflicts.” “Gang or group” affiliation is actually a risk factor for being a victim of nonfatal shootings or homicides. By changing the community's framework to perceive people affiliated with gangs as potential victims--rather than falsely assuming that they are criminals--our society can work toward ending the cycle of violence. As the California Partnership for Safe Communities stated in their Portland report, “If the goal of public safety strategies is to reduce gun violence in the near term, invest in and focus on the people that are at the highest risk now.”

The United States' criminal justice system is intended to focus primarily on two values: justice and fairness. Unfortunately, the current system fails in both regards. How can there be justice when a jury votes to convict a person of a crime she did not in fact commit? How can there be fairness when jurors ignore reasonable doubt to imprison a person purely for associating with a particular social group? State courts and legislatures are obligated to uphold both the United States' and their own constitutions at all costs to protect the liberty of the nation's citizens. Oregon has a duty to rectify the injustices of reverse jury nullification and must ensure that the probative value of gang evidence admitted under the prior bad acts rule outweighs its substantial prejudice. If the Oregon legislature will not act, the Oregon Supreme Court has an obligation to do so in the interest of justice.

J.D. Candidate, 2024, University of Oregon School of Law; B.S., 2020, University of Arizona.