Let’s set the stage. You’re walking down the street at night on your way back from work. You’re approached by a stranger, about the same age but a different race. He asks you the time, and as you pull out your phone to respond, he snatches it, threatens you with a knife, and runs. The police bring you down to the station and you give them a description of your assailant. You then are asked to pick him out of a lineup. You are sort of unsure, but recognize him when the police tell all of men in the line up to ask you the time.
The defendant is charged with robbery and goes to trial. Because your phone is never found, your identification is the only evidence against him. At the charge conference, the defendant’s counsel argues that the Judge should give a cross-racial identification charge because you’re a different race from the defendant and it’s harder to identify people of a different race, he argues. The trial judge doesn’t buy it, and denies the request. The jury then convicts the defendant, and the Appellate Division, Second Department affirms. This is the situation that the Court of Appeals faced in People v Boone (No. 55).
On appeal to the Court of Appeals, there was only one issue: in a case where there is an identification by a witness of a different race than the defendant, is the defendant entitled to a cross-racial identification jury instruction? When the majority opinion begins like this, you get a good sense of how it will end:
In light of the near consensus among cognitive and social psychologists that people have significantly greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race, the risk of wrongful convictions involving cross-racial identifications demands a new approach.
The majority spends pages of the opinion on how social science has decided that cross-racial identifications are not always the most reliable, and how misidentifications are a significant cause of wrongful convictions in this country.
Mistaken eyewitness identifications are “the single greatest cause of wrongful convictions in this country,” “responsible for more . . . wrongful convictions than all other causes combined.” Inaccurate identifications, especially misidentifications by a single eyewitness, play a role in the vast majority of post-conviction DNA-based exonerations in the United States. Indeed, a recent report by the National Academy of Sciences concluded that “at least one mistaken eyewitness identification was present in almost three-quarters” of DNA exonerations. According to amicus The Innocence Project, 71% of DNA exonerations nationally involve eyewitness misidentification. This Court has noted in recent years the prevalence of eyewitness misidentifications in wrongful convictions and the danger they pose to the truth- seeking function and integrity of our justice system.
Social scientists have found that the likelihood of misidentification is higher when an identification is cross-racial. Generally, people have significantly greater difficulty accurately identifying members of other races than members of their own race. According to a meta-analysis of 39 psychological studies of the phenomenon, participants were “1.56 times more likely to falsely identify a novel other-race face when compared with performance on own-race faces.” The phenomenon is known as the cross-race effect or own-race bias
(Opn, at 4-6 [citations omitted]).
The Court then contrasted the allegedly widely accepted social science with what a typical juror knows as he or she hears a criminal case.
There is, however, a significant disparity between what the psychological research shows and what uninstructed jurors believe. One study showed that only 47% of jurors were familiar with the cross-race effect. A survey of over 1,000 jurors in Washington, D.C., cited by amicus the American Psychological Association, found that “[a] large plurality of the survey respondents (48%) thought cross-race and same-race identifications are of equal reliability, and many of the other [survey] respondents either did not know or thought a cross-racial identification would be more reliable (11%). Only 36% of the survey respondents understand that a cross-racial identification may be less reliable.” These findings demonstrate that, while the cross-race effect is a matter of common sense and experience for some jurors, it is by no means a universal belief shared by all. The need for a charge on the cross-race effect is evident.
And so, the Court decided that a cross-racial identification jury instruction should be given in every case where identification of a different race defendant is an issue. Although the majority pays lip service to the idea that the trial court still retains discretion to decide when the charge should be given, the opinion makes it very clear that the answer to that question is in almost always. Indeed, the Court’s rule—the charge must be given in every case it’s requested “when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races”—so broad that its hard to imagine a case where the trial court can deny a request for the charge.
Now, after the Court’s opinion in Boone, trial judges should get familiar with this jury instruction because it certainly appears that they’ll be giving it a lot from now on:
(1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.
Judge Garcia, concurring in the result, pointed out the issues with the majority’s opinion making the cross-racial identification jury charge effectively mandatory. Although he agreed that the trial court should not have denied the cross-racial identification jury charge in Boone, he warned that the majority’s opinion took away the trial court’s typical discretion in this area without providing any guidance to the trial bench for when the charge can be denied. Judge Garcia recounts all of the ways that a trial judge can provide the proper context for the jury to consider identification evidence. Judges can admit expert evidence on identifications. They can allow appropriate cross-examination. They may determine the charges that are warranted based on the evidence they heard during the trial. There are a number of safeguards that trial judges can use to ensure that the jury can appropriately weigh identification evidence based on the particular facts of each case, Judge Garcia explained. And having heard all of the evidence, the trial judges are the best situated to use their discretion to decide when a cross-racial identification jury charge is necessary. There’s no reason to change that rule, Judge Garcia notes.
Judge Garcia then explains the root of the problem with the majority’s rule:
But the majority hedges. Seemingly aware of the countless implications accompanying a mandatory charge, the majority provides that trial courts may deny the charge where (1) the identifying witness and defendant do not “appear to be of different races,” or (2) the witness’s identification of the defendant is not “at issue” (majority op at 17).
On paper, those purported caveats remain undefined and unexplained. In practice, they are meaningless. As a result,charge on the cross-race effect” (majority op at 17 [emphasis added]), regardless of whether cross-racial identification issues are implicated at trial. Not only is this approach unprecedented — we do not mandate any other charge relating to identification evidence — it inhibits our trial courts in a manner that may frustrate jury deliberations.
In stripping trial courts of their discretion, the majority’s rule presumes that our trial courts are incapable of performing their “quintessential task[s]” (McKnight, 665 F3d 792). It also overcorrects: the rule requires a cross-racial identification charge to be given even where it is likely to confuse, distract, or mislead the jury. Mandating the charge — even in cases where it is misleading, irrelevant, or otherwise unwarranted — creates a substantial risk of juror confusion and serves only to hinder, rather than aid, the jury’s critical factfinding function. In this way, the majority’s overinclusive, mandatory-on-request approach needlessly undermines the reliability of valid identification evidence to the detriment of both victims and jurors.
Although I’m not a criminal lawyer, I tend to agree with Judge Garcia. The decision on when the evidence warrants a particular jury charge should be laid in the hands of the trial judge, the person who presided over the trial. The judge’s decision is still reviewable for abuse of discretion, and if the judge gets it wrong, the conviction can be reversed an a new trial ordered, as in Boone.
But I’m certainly open to persuasion on why I’m wrong. Let me know if you disagree.
The Court of Appeals’ opinion can be found here.