To Curb Bad Verdicts, Court Adds Lesson on Racial Bias for Juries
Posted December 15, 2017 7:27 p.m. EST
NEW YORK — The classic courtroom scene of a witness confidently identifying an attacker by pointing toward the defendant is a moment that can make a powerful impression on a jury.
But it is an impression that most psychologists agree is unreliable, especially when the victim or other eyewitness and the defendant are of different races. And it has resulted in people going to prison for crimes they did not commit.
Six years ago, state court administrators gave trial judges in New York the option of telling jurors that in their deliberations, they may consider the unreliability of cross-racial identification.
The state’s highest court, the Court of Appeals, went further in a decision issued Thursday. It told judges that in criminal cases where the identifying witness and defendant appear to be of different races, the defense is entitled to have the jurors told about the unreliability of cross-witness identification if requested.
In the majority opinion, Judge Eugene M. Fahey cited mounting scientific evidence and criminal exonerations in concluding that the “the risk of wrongful convictions involving cross-racial identification demands a new approach.”
People generally have greater difficulty identifying someone of a different race than their own, a phenomenon that scientists have observed for more than a century. One analysis of 39 studies found that participants were 1 1/2 times more likely to falsely identify the face of a stranger of a different race.
Often, jurors do not perceive problems with how witnesses identify people of a different race. In a 2006 survey conducted by the American Psychological Association, only 36 percent of over 1,000 jurors understood that cross-racial identification was less reliable than same-race identification, while nearly half believed they were equally reliable.
“The need for a charge on the cross-race effect is evident,” the court said, referring to the instruction. “The question becomes how this instruction is best given.”
The rule issued by the Court of Appeals on Thursday applies to all cases where a witness’s identification of the perpetrator is an issue and the instruction is requested by the defendant, who the judges said must appear to be of a different race than the eyewitness who identified him.
State courts in Hawaii, Massachusetts and New Jersey have instituted rules similar to the new one in New York, while courts in Washington state and Georgia, as well as federal courts in Detroit, Indianapolis and the District of Columbia allow an instruction, at the discretion of the trial judge.
Supporters of such an instruction said it was necessary to reduce the risk of wrongful convictions, which disproportionately affect black men.
The Innocence Project, a nonprofit legal group, said in a brief filed with the court that over 70 percent of the 353 convictions it has had overturned on DNA evidence involved misidentification. And of those, nearly half involve a defendant and a witness of different races. Black men were the defendants in more than 200 of the exonerations handled by the group.
Marne Lenox, who co-authored a brief on behalf of the NAACP Legal Defense and Educational Fund Inc., said the ruling sends “an important signal” across the country.
“This decision helps level the playing field and prevent future wrongful convictions, especially of defendants of color, based on scientifically dubious cross-racial identifications,” Lenox said.
As courts, legislatures and law enforcement agencies revisit the use of eyewitnesses in criminal cases, she said she hoped they would look to New York and “enact common-sense reform.”
The case that led to the decision involved a black man, Otis Boone, who was convicted of robbery solely on the testimony of two white men who said he robbed them of their cellphones in Brooklyn in 2011.
The victims, a teenager and a man in his 20s, said the robber approached them and asked for the time before snatching their phones out of their hands and fleeing. The older victim gave chase until the robber pulled out a knife and warned him to stay back. The younger man put up a fight, but the robber stabbed him in the back.
Both victims picked Boone out of a six-man police lineup. The teenager hesitated until he heard Boone say, “What time is it?”
In ruling that the defense was entitled to the identification instruction, the court ordered a new trial for Boone, whose original sentence of 25 years in prison was reduced to 15 by a lower appellate court.
The Brooklyn district attorney’s office said it was reviewing the court’s decision and weighing how to proceed.
The trial judge in Brooklyn had rejected Boone’s request for the cross-racial instruction, partly on the belief that the instruction should not be given to jurors if no expert had testified on the subject at trial. An appellate court agreed with the trial court, but chose to reduce Boone’s sentence.
Fahey, of the Appeals Court, whose opinion was joined by four of the panel’s seven judges, wrote that the lower courts were mistaken.
Judge Michael J. Garcia agreed that the trial judge had erred in not allowing the identification instruction, but in a concurring opinion, said that his colleagues went too far in effectively making the instruction mandatory. He said requiring the instruction “creates a substantial risk of juror confusion and serves only to hinder, rather than aid, the jury’s critical fact-finding function.”
Judge Leslie E. Stein joined in the concurring opinion. Judge Rowan D. Wilson did not participate in the decision.