Experienced criminal attorneys have long been aware of the inherent unreliability of cross racial identification. Cross-racial identification is the eyewitness identification of a suspect in a criminal case when the witness is a different race than the suspect. Recently, an appellate court issued a written opinion in a New York robbery case involving the defendant’s challenge to the lower court’s refusal to instruct the jury on the unreliability of cross-racial identifications. The appellate court determined that the lower court was in error when it refused the defendant’s request, reversed the defendant’s conviction, and ordered that a new trial be granted.
The defendant was arrested after two white men reported being robbed at knife point. The facts of both robberies were similar, in that the alleged perpetrator approached the victim, asked the time, and then grabbed the victim’s cell phone when they pulled it out to see the time. Each of the victims told police that the man who had robbed them was African-American and about six feet tall.
After his arrest, the defendant was placed in a line-up with several other individuals. One of the victims picked the defendant out immediately. The other victim was unsure until the police instructed all of the men in the line-up to ask “what time is it?” at which point the defendant was identified. There was no physical evidence tying the defendant to the crimes.
At trial, the defendant requested that the judge instruct the jury about the unreliability of cross-racial identifications. The judge refused the instruction, explaining that there had been no scientific evidence presented to the court indicating that cross-racial identifications were suspect. The defendant appealed.
On appeal, the court agreed with the defendant that the jury should have been instructed on the unreliability of cross-racial identifications. In so holding, the court conducted an in-depth review of the scientific literature on cross-racial identifications and the generally accepted position that people of different races tend to have difficulties making reliable identifications.
Not only did the court reverse this particular defendant’s conviction, but it also devised a rule that should be applied to future cases in which the prosecution plans on introducing evidence of a cross-racial identification. The court explained that, when the race of a witness appears to be different from that of the defendant, the court should instruct the jurors when the defendant makes a request. The instruction explains that jurors should consider “that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and whether the difference in race affected the accuracy of the witness’s identification.”
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