Last Friday, I taught at a “Cross to Kill” CLE for the New York State Association of Criminal Defense Lawyers on the subject of cross-examining the eyewitness.  Part of my lecture concerned cross-racial identifications, widely regarded as the least reliable of all. 

The question was asked about whether defense counsel should question the eyewitness about where they lived and worked, in order to show that the witness lacked a frame of reference for making a cross-racial ID.  Put in context, the attorney suggested that showing the jury that a white witness lived in a “white” neighborhood and worked in a “white” job would demonstrate that they could not identify a black perp.  The attorney who raised the question was black, which I do not note gratuitously but because it is directly relevant to the point.

My position was that it was more likely to harm the position than help to suggest that because a person did not live in a racially mixed neighborhood, the witness was inherently incapable of identifying the perp.  Rather, I suggested that the only effective means of making the point was through an eyewitness expert, who could do so clinically.  My questioner disagreed.

“But what if you didn’t have an expert,” she urged.  “Then you would have to do this.”  I still demurred.  The defense attorney would never know enough about the eyewitness to presume to challenge her ability to recognize a person of another race.  It was highly unlikely that we will get a witness to admit that she can’t tell one black person from another, and anything short of that smacks of an appeal to prejudice.  It was playing the “race card,” a very risky proposition that was more likely to backfire than help.  And particularly more likely to backfire when the attorney was of the race in issue.  My questioner disagreed.

I didn’t get it, according to my questioner.  White people who live in (location omitted to avoid needlessly offending the locals) can’t tell one black from another.  So if you show that the eyewitness lives in (same place), then you can show the jury that they could never had made a valid ID.  This is where things got a little hairy at the CLE, as some people in this biz can be a bit sensitive about having a frank discussion.  So we agreed to disagree and moved on.

But the question raised important issues, and it bugs me that they remain undiscussed.  What I came to realize during the discussion was that the questioner’s perspective assumed that everyone realized that whites are inherently prejudice against blacks to the extent that they are obviously incapable of making a valid cross-racial ID.  She may be right.  But this is a black attorney’s perception of white witnesses.  I do not agree that white jurors perceive themselves this way.  And while this might strike a meaningful blow for reality, our job is not to right the wrongs of racial prejudice, but to represent our clients. 

So assuming that we have a jury with people of various races, we need to get beyond our own desires to press issues that satisfy our own view of the world and deal with the issues in a way that will cause the jury to “see” things the way our clients desire.  In other words, no matter how “correct” my questioner may have been about racial bias, she forgot to plug the jury into her equation to consider how her personal views would mesh with the jurors’ self-perceptions.  It may have made her feel satisfied by questioning the eyewitness on the extent of her interactions with people of other races, but it would not have played well with jurors of other races and may well cost her client.  In the end, there is one immutable fact about what defense lawyers do:  We represent the defendant.  No matter what our personal beliefs may be, we can never lose sight of our duty.