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