In a California courtroom, counsel should think twice before referring to any person as a “dog,” even by way of analogy. California’s Racial Justice Act (“RJA”), codified at Penal Code section 745, prohibits the use of racially discriminatory language at trial that an objective observer would conclude explicitly or implicitly appeals to racial bias.
The statute provides examples of prohibited speech. These include racially coded language, comparisons between a defendant and an animal, and references to a defendant’s physical appearance. The focus is not merely on overt slurs. It extends to subtler language that can carry implicit bias or demeaning associations.
The Court of Appeal recently addressed the scope of this prohibition in a criminal case. The defendant was charged with unlawfully operating a vehicle equipped with an illegal towing hitch. Two passengers were present, making three occupants in total. Identity of the driver became a central issue.
During jury selection, the prosecutor used a hypothetical to explain circumstantial evidence. He described a dog locked in a car that ate the driver’s “slushie.” If the dog’s tongue were blue and the slushie were blue, the driver could reasonably infer that the dog consumed the drink. The prosecutor offered this scenario as a simple illustration of how indirect evidence can support a conclusion.
In closing argument, defense counsel attempted to create reasonable doubt about who had been driving. Because three people occupied the vehicle, he suggested that perhaps all three had “blue tongues.” In other words, any one of them could have been the driver, reducing the likelihood that the defendant was the culprit to one in three. The prosecutor responded that, even under that theory, shared involvement could support accomplice liability.
The jury convicted the defendant. On appeal, he argued that the prosecutor’s dog analogy violated the RJA by comparing a person to an animal.
The Court of Appeal rejected that claim. The court concluded that neither attorney exhibited racial bias or used racially discriminatory language by referencing “the extremely intelligent pet dog” in the circumstantial-evidence example. At the same time, the court cautioned that counsel would be wise to choose a different analogy in the future—such as rain or a sunrise—rather than one involving an animal. (People v. Gomez, 2026 D086608.)
The lesson is practical and straightforward. Even an innocent metaphor can create unnecessary risk. Animal comparisons invite objections under the RJA and distract from the merits of the case. They also undermine the obligation to present oneself with dignity and respect for the judicial process. For California lawyers, such language may implicate the professional duty to act with courtesy, integrity, and decorum.
In short, avoid the analogy. Choose neutral imagery. Let the evidence—not colorful comparisons—do the work.