The Other Black Face Problem

It would be a wonderful world if skin color played no role in perception.  Some feel that should be the case, and if so, it comes at the price of innocent black defendants going to prison.  You see, reality doesn’t always comport with the world as we wish it was, and one piece of that ugly reality is that white people struggle to differentiate black faces.  Get over it.

“The vagaries of eyewitness identification are well-known” and “the annals of criminal law are rife with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228 (1967). In recent years, the legal and scientific communities have recognized the particular risk of mistaken identifications, and therefore convictions of the innocent, posed by cross-racial identifications in which the identifying witness and the suspect arc of different races. In 2014, the National Academy of Sciences reported that “cross-racial (mis)identification” accounted for “42 percent of the cases in which an erroneous identification was made.” Identifying the Culprit: Accessing Eyewitness Identification at 96 (The National Academies Press, 2014). Over 40 years of robust research have now documented the significant difficulty individuals have in discerning between, and therefore accurately recognizing, the faces of people of a different race from their own.

This comes from the summary of argument in the defendant-appellant’s brief in People v. Boone, coming before the New York Court of Appeals.  The issue in the Brooklyn case arose when Acting Supreme Court Justice Vincent Del Giudice refused to charge the jury as to cross-racial identification.

The defendant, Otis Boone, is black, and was convicted of two counts of first degree robbery and related offenses, street muggings that lasted one minute, based upon single witness identifications by white victims.  Defense counsel requested that the court charge the jury, per the Criminal Pattern Jury Instructions on single witness IDs.

You may consider whether there is a difference in race between the defendant and the witness who identified the defendant, and if so, whether that difference affected the accuracy of the witness’s identification. Ordinary human experience indicates that some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. With respect to this issue, you may consider the nature and extent of the witness’s contacts with members of the defendant’s race and whether such contacts, or lack thereof, affected the accuracy of the witness’s identification. You may also consider the various factors I have detailed which relate to the circumstances surrounding the identification (and you may consider whether there is other evidence which supports the accuracy of the identification).

Justice Del Giudice refused to give the instruction, based upon trial counsel’s failure to cross-examine the eyewitnesses as to their ability to identify a person of a different race or call an expert to the stand to testify to the problem. The identifications involved suffered from the usual frailties, plus the problems of the muggings happening at night and the witness’ attention being elsewhere. Just lousy IDs all around, plus being cross-racial.

The appellate counsel go on to argue at great length about the flaws of cross-racial identifications, both in the brief and in a supplement:

Leila Hull and Lynn Fahey of Appellate Advocates are defending Boone. A 293-page addendum to their brief is devoted exclusively to the results of scientific studies on eyewitness identification of suspects and the perils of cross-race identifications.

That so much emphasis is placed on something so well-known, so well-proven, is understandable in the sense that the issue of mistaken identification based upon race is a fundamental flaw of a critical aspect of evidence. And yet, there really doesn’t seem to be any legitimate question that it happens. All the time.

Rather, the question here is whether every black defendant identified by a white eyewitness should be entitled to a cross-racial ID jury instruction by dint of that fact alone.  Or is something more required? Is it lost if defense counsel fails to cross the eyewitnesses, or call an expert?

The danger here is that Justice Del Giudice’s problem with the defense’s failure to do either implicates numerous other issues wholly unrelated to the question of whether there is good reason to charge the jury on cross-racial identification.  The idea of crossing an eyewitness, concededly a crime victim and inherently sympathetic, on just how racially prejudiced they are that all black men look alike, is naïve at best, crazy at worst.

It’s easy to say defense counsel should cross them, but doing so can prove offensive, and could well have serious negative consequences with a jury. Does the court think witnesses are going to happily respond, “well, yeah, sure, all blacks look the same to me, and I really can’t tell the defendant from any other black guy, because that’s how us whites are”?

Nor does the defense have unlimited funds available to put experts on the stand to testify to scientific fact that’s been established beyond question. And with indigent defense, where the need often arises, there’s no money at all for such frivolities. Or time to spend trying to find it.

But is it enough that a black man is identified by a white witness to give rise to a cross-racial identification, without anything more to put the specific issue into contention?  You bet it is.  We are well past the point in scientific knowledge that it should be necessary for defense counsel to jump up and down, wave his arms, scream “foul,” for the court to recognize that cross-racial identification is always an issue.  Eyewitness IDs are bad. Cross-racial IDs are worse. Always.

The New York Court of Appeals, recognizing the significance of the issue in Boone, has solicited amici in this case, which it does “about once a year” when cases involve issues of “intense” significance to the public and bar.  Hopefully, one of the criminal defense bar associations can stop handing out awards to itself and get its act together to submit an amicus brief. The issue in this case demands attention, and the right to a jury instruction on cross-racial identification should be inherent in every applicable case. When a white person identifies a black person, the evidence always places cross-racial identification in issue.

H/T Keith Kaplan


17 thoughts on “The Other Black Face Problem

  1. Turk

    Considering the charge makes reference to “ordinary human experience” it seems odd that anyone would demand an expert.

    1. SHG Post author

      It would theoretically be preclusive; if it was ordinary experience, then an expert would not be permitted. But then, a charge wouldn’t be needed either, showing that it’s all kinda bullshit as we try to tip toe around race issues.

  2. wilbur

    “Justice Del Guidice refused to give the instruction, based upon trial counsel’s failure to cross-examine the eyewitnesses as to their ability to identify a person of a different race or call an expert to the stand to testify to the problem”
    Does a motion for ineffective assistance and retrial loom on the horizon?

  3. GregB

    “Things OJ” are currently on the radar and there’s a tie in with the cross-racial ID issue in that matter as well. A potentially powerful anti-OJ witness, Jill Shively, was bounced from the case by Marcia Clark when it was revealed she had recieved 5 grand from Hard Copy to tell her story on the air. She claimed that night she saw “OJ” rushing from the crime scene in his Bronco at an inculaptory time, running a red light and nearly hitting her and another driver in the process. Supposedly a detective verified some tire marks present on a median that confirmed her tale as did a phone call from the other driver which was ignored after Clark’s dropping her from the trial.

    Only problem, she first said she thought the driver was Marcus Allen (OJ protege)!

    Now, nobody thinks Allen had anything to do with the murders, but as it happens over the years there has been a good deal of info rousted out about OJ’s eldest son Jason who in the dark and hurried circumstances could well be a match for his dad. We already know she screwed up the ID one time–why not a second? That she is now “sure” it was actually OJ is, according to the research, meaningless.

      1. GregB

        No, but it nicely shows the problem. OJ and Marcus don’t look much like each other aside from the fact they are both black (his son more or less does look like daddy, though with a smaller, Marcus-like head).

        So even well known celebs can be indistinguishable due to this phenomenon and especially in high pressure situations.

        1. wilbur

          A bit far afield here, but OJ used to frequent a South Florida golf course where I used to practice before work. When I first saw him there, from about 50 yards away, I didn’t recognize him, but thought to myself “that used to be a pro athlete” just based on his build and movements. I simultaneously thought “that guy has the largest head I’ve ever seen on a human being”.
          Anyone’s head, including his son, is smaller than OJ’s. Truly massive.

  4. elhunde

    Any other details about the id? E.g. did they use a photobook, line up, or just point em at the guy?

  5. rojas

    Layman opinion here. The instruction on it’s own seems like weak tea. I can understand how cross of a sympathetic victim could be prejudicial or might be ill advised. I would think an expert witness would be demanded.
    I note the pattern instruction states ” You may also consider the various factors I have detailed which relate to the circumstances surrounding the identification……” Does this mean the Judge is required to introduce background data and cover the subject verbally with the Jury? If so, perhaps not so weak tea.

    1. SHG Post author

      The cross-racial instruction is given in conjunction with the eyewitness ID instruction, which includes other circumstantial factors that affect identification.

  6. Patrick Maupin

    Non-facial features often play a major factor in identification. Unfortunately “big black guy” is particularly unhelpful.

    Old, politically incorrect jokes aside, when it comes to facial features, it’s physically harder to distinguish people with dark skin in low to normal light conditions, so much so that there are now technological solutions for video. For example, a friend of mine is a co-inventor on patent US7545435, which is basically “in a videoconference system, figure out where the skin is in the picture, and if it’s low contrast skin, increase the image exposure.”

    1. SHG Post author

      Unfortunately “big black guy” is particularly unhelpful.

      Notice that the lawyers here didn’t bother to bring up this obvious detail, which couldn’t possibly be more obvious to them, because the post isn’t about the typical descriptions of the perpetrator having nothing to do with facial features? Want to take a wild guess as to why that utterly obvious yet totally irrelevant detail didn’t need mentioning?

      1. Patrick Maupin

        My bad for not connecting the dots properly and completing that thought, so that you could tell me my comment was obvious and redundant rather than obvious and irrelevant.

        If a witness thinks he perceives the gestalt of another human, as per Wilbur’s description of OJ on the golf course, he often thinks he has seen the face, even if he really hasn’t gotten a good impression of it. This is more of a problem cross-racially, because intra-racially, the witness is more apt to have a firm grasp either of an image, or a lack of an image, and the cross-racial memory will more likely have ambiguity.

        Due to the way reconstructive memory works, if you later show the witness with an ambiguous memory someone who matches all the other attributes of his memory (the large black man), the witness will then unconsciously use the new associated face to backfill his memories, and will develop an unshakable memory of that face at the original incident.

        1. SHG Post author

          Yeah, pretty much the same as “black man, 25-70 years, hair, in jeans and hoodie, going south on State Street.”

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