Evidence of flight—that is, evidence that a criminal defendant fled from a crime scene or attempted to conceal criminal activity—is generally admissible at trial. United States v. King, 200 F.3d 1207 (9th Cir. 1999); State v. Walker, 148 Mont. 216, 419 P.2d 300 (1966). The justification for this rule is that evidence of flight is probative of the defendant’s “consciousness of guilt.” United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977). However, for historically disenfranchised and over-policed communities, flight from law enforcement is more probative of something else: systemic racism. For people of color, interactions with police often result in racial profiling, harassment, assault, or even murder. Because of over-policing and police brutality, there is a deeply rooted distrust of law enforcement within BIPOC and other historically disenfranchised communities. Therefore, as is so often the case in our legal system, this seemingly innocuous and logical evidentiary rule was shaped by white men for white men.
Most federal circuit courts determine whether evidence of flight was properly admitted by the trial court by considering the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. Myers, 550 F.2d at 1049; King, 200 F.3d at 1215; United States v. Al-Sadawi, 432 F.3d 419, 424 (2d Cir. 2005); United States v. Obi, 239 F.3d 662, 665–66 (4th Cir. 2001); United States v. Suggs, 822 Fed. Appx. 422, 431 (6th Cir. 2020); United States v. Russell, 662 F.3d 831, 850 (7th Cir. 2011); United States v. Hankins, 931 F.2d 1256, 1261 (8th Cir. 1991); United States v. Maxi, 886 F.3d 1318, 1332 (11th Cir. 2018). However, this test does not account for the defendant’s race. This taints the reliability of each inference in the chain, with each step becoming progressively less reliable. As to the first inference, a BIPOC person might flee from law enforcement without realizing they are fleeing from a crime because they want to avoid the indignities of racial profiling. As to the second inference, BIPOC flight is less probative of consciousness of guilt, and much more probative of the damaging presence of law enforcement in historically disenfranchised communities. With respect to the third inference, a BIPOC person may experience consciousness of guilt not from the crime charged but from the fact that their very identity is perceived as synonymous with crime. Finally, BIPOC persons are wrongfully convicted at significantly higher rates compared to their white counterparts.
Montana does not explicitly follow the four-step inquiry in Myers. There seem to be few, if any, restrictions on the admissibility of flight evidence in our State. Flight or concealment is admissible and may be considered by the jury to prove consciousness of guilt. State v. Walker, 148 Mont. 216, 224, 419 P.2d 300, 305 (1966). The only limitation in Montana is that the court itself cannot comment on evidence of flight during trial. This was not always the case. Until 1999, Montana had a pattern jury instruction on flight evidence. It stated, in part:
If you are satisfied that the crime charged in the information has been committed by someone, then you may take into consideration any testimony showing, or tending to show, flight by the defendant. This testimony may be considered by the jury as a circumstance tending to prove consciousness of guilt, but it is not sufficient of itself to prove guilt.
See State v. Stiffarm, 2003 MT 70, ¶ 10, 314 Mont. 499, 67 P.3d 249.
In State v. Hall, the Montana Supreme Court did away with jury instructions on flight. The Court observed that such instructions constitute an improper comment on the evidence by the trial court. State v. Hall, 1999 MT 297, ¶¶ 45-46, 297 Mont. 111, 991 P.2d 929. Attorneys, however, can still introduce evidence of flight.
Several solutions to the problem of flight evidence have been proposed. First, a well informed 403 analysis could work to mitigate the disparate effects of flight evidence. Federal Rule of Evidence 403, as its Montana counterpart, bars the admission of relevant evidence when its probative value is substantially outweighed by, among other things, unfair prejudice. As one author puts it, “the low probative value of [BIPOC] flight is substantially outweighed by the danger of racialized white normative views that only the guilty run from the police[.]” Jasmine B. Gonzales Rose, Toward a Critical Race Theory of Evidence, 101 Minn. L. Rev. 2243, 2286-87 (2017). A second proposed solution is for courts to take “judicial notice” of racism and police brutality and instruct the jury accordingly. In other words, judges can take judicial notice of the fact that “members of [BIPOC] communities have reasonable fear of police brutality that generates a valid, alternative reason for flight.” Danielle Sandhu, A Reasonable Alternative to Guilt: Flight and AntiBlack Racism, 42 W.R.L.S.I. 51, 81-82 (2021). These solutions would allow us to retain what is intuitive about flight evidence while also recognizing the inherent whiteness of the rule.
These solutions only work if courts accept the implications of systemic racism. In order to get to the “unfairly prejudicial” effect of flight evidence, one has to acknowledge that there is a problem with it in the first place. This might be a tough ask of our current white normative legal system.
L. Moose
Criminal Injustice System 