We live in a time where every action we take, every premise we rely on, warrants scrutiny through the prisms of race and implicit bias. This reckoning, long overdue for too many individuals and institutions, was brought about by the murder by police of George Floyd and the consequent outpouring of grief, rage and commitment. Application of the Rules of Evidence requires that same scrutiny.

Nonetheless, the immediate response might be one of doubt. The word “race” is absent from the Federal Rules of Evidence, and the hearsay rules, for example, are arguably color-blind—a present sense impression is a present sense impression, with its admissibility in no way dependent upon the race of the declarant or the perceiver.

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