Setting the Record Straight: A Proposal for Handling Prosecutorial Appeals to Racial, Ethnic or Gender Prejudice During Trial

This article proposes that direct or indirect references to the protected classes of race and/or gender should always be subject to the Chapman v. California "harmless beyond a reasonable doubt" standard. Once the defendant has shown appeals to racial or gender bias in prosecutorial argument or other conduct during his trial, the burden must shift to the prosecution to show at an immediate hearing outside the presence of the jury, beyond a reasonable doubt, that this impermissible appeal to bias did not affect the fairness of the defendant's trial. Furthermore, courts must take the examination of the prosecution's proof seriously, and must recognize that even a single racially biased comment by a prosecutor may improperly influence the outcome of a trial.