The ABA recently issued a resolution on cross racial identification urging states to allow defendant’s to get a jury instruction when a cross-racial identification is made in a criminal case.
Social science (and years of criminal lawyers personal observations) confirms that identifying across races is harder to do than within races. In other words, whites identifying blacks…can’t do it that accurately. Going back across the color line, blacks have a harder time identifying whites…but they aren’t as inaccurate as whites are.
By far, the biggest reason for wrongful convictions is poor eyewitness identification. Two reasons for that.
First, eyewitnesses are actually REALLY BAD at performing their duties…namely because witnesses (not victims) aren’t usually paying great attention and victims are not focusing on their attacker necessarily, and are under (understandably so) extreme stress.
Second, juries love eyewitnesses. There is nothing more powerful than either a witness or a victim pointing at a defendant at the table and saying “I saw him do it.” Unfortunately, it’s also one of the least reliable of all forms of evidence and yet our own personal experience is usually that you would trust another person making an accusation that grave.
Here’s the thing. First of all, whites especially have a hard time identifying any other race than their own. When I worked for the Innocence Project at the University of Wisconsin, I was interviewing a a black family who were witnesses to a crime. Their description of the assailant was remarkably detailed, with the mother and the aunt arguing over his specific skin to a degree of subtlety I would never be able to articulate. I’m not blind, but if asked to describe a black person’s skin color, I tend to fall into the white person’s trap…either light, or dark skinned. These women were arguing over butternut, red a wide variety of names and descriptions that while I could identify them, I would be hard pressed to describe them.
The reason for this is rather obvious. I can tell Polish, Germans and Russians apart by their facial structure (Poles are round egg heads, Russians get pointy noses and tucked in chins, Germans are more angular). I would guess this identification ability would be limited among blacks. Although they might notice the difference, they wouldn’t necessarily be able to describe it or know what it means. Likewise, blacks can tell from which regions of Africa or the Caribbean, the skin tones and hair types, etc. that help them classify their racial types. I may notice those differences, but except for North Africans and the Sudanese and Ethiopians, I don’t think I’d easily describe various African American facial features and skin tones.
What this means is that juries need to be told this. There are two ways to do so. One is with an expert witness. But really, who would be an expert on this? It would have to be either a sociologist used to describing and dealing with different racial types, or a psychologist who can talk about visual and memory recognition. Given the limited resources of most defendants, this type of expert is going to be unavailable.
A better option, and the one recommended by the ABA and wholly endorsed here, is to give a jury instruction, when necessary, informing the jury of the difficulty with cross-racial identification. Of the few states that give them, I like New Jersey’s the best:
“You may consider the fact that an identifying witness is not of the same race as the defendant and whether that fact might have had an impact on the accuracy of the witness’ original perception and the subsequent identification.
You should consider that in ordinary human experience, people may have greater difficulty in identifying members of a different race.”
I haven’t had a lot of cases involving cross-racial identification (in fact, when I do, it’s usually the cops identifying my non-white client). However, I would urge for an instruction based on this heartily in court.
Pithy, to the point and covers all the bases. I hope Illinois gets on board with this. Given our state’s poor history with wrongful convictions, it’s a necessary step to ensure that justice is done for all.
Hat tip to Michelle for the resolution.
