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Abstract: Common rhetorical techniques used by prosecutors, even those who reject racially prejudiced beliefs, are likely to trigger jurors’ implicit biases. Current case law and ethical rules set up well-intentioned prosecutors by obscuring the racial bias embedded in this rhetoric and the likely impact of coded language on jurors. In 2020, however, California passed the Racial Justice Act, which prohibits “racially discriminatory language” in criminal trials and covers implicit as well as explicit bias. This article unpacks social science research to show how common prosecutorial rhetoric is racially biased, regardless of prosecutors' intent, and it provides prosecutors with concrete strategies to use in reforming their rhetorical choices while still effectively prosecuting cases. It also gives prosecutors strategies for preventing or responding to racially biased rhetoric by other participants at trial, rather than singling them out as the sole source of this rhetoric. It therefore gives California prosecutors concrete strategies for complying with the California Racial Justice Act, and it gives prosecutors nationwide tools they need to seek justice rather than convictions tainted by racial bias.
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