Written By Caitlyn R. Buckman
On December 14, 2017, New York’s highest court ruled that trial courts are required, upon request, to give a jury instruction on the “cross-race effect” in criminal cases via People v. Boone. In other words, where a witness’ identification of a defendant is at issue, and the two parties appear to be of different races, juries need to be informed of the potential for inaccuracy.
The case arose from a pair of robberies in 2011, where two white men both had their cell phones stolen in a Brooklyn neighborhood. Both victims described their attacker as a six-foot tall, African American man. Otis Boone, a man matching that general description, was suspected of the crimes. Boone was placed in a six-person lineup, where both victims separately identified him as the perpetrator, although the second victim was unsure until he heard Boone speak. Boone was then charged with two counts of robbery, though no physical evidence connected Boone to the crimes. Neither of the cell phones were recovered.
At trial, the court denied defense counsel’s request for a jury instruction regarding cross-racial identification, reasoning that there had been no expert testimony concerning its lack of reliability. The jury was instead given an expanded charge on eyewitness identification, and Boone was found guilty of both counts.
Boone appealed, arguing that he was denied a fair trial through the trial court’s refusal to instruct the jury on the imprecision of cross-racial identification. The Appellate Division disagreed, noting that Boone had not placed the issue of cross-racial identification into evidence during the trial. The case then went to the Court of Appeals, which reversed, finding that the trial court abused its discretion in refusing to give the requested jury charge.
How Reliable is Cross-Racial Identification?
Eyewitness testimony in general has faced scrutiny with regard to its reliability, as the Innocence Project has estimated that, nationwide, eyewitness misidentification has contributed to more than 70% of convictions later overturned by DNA evidence.
Research suggests that eyewitness identification might be particularly inaccurate where the witness and the defendant are of different races. This “cross-race effect” asserts that people of all races tend to have difficulty distinguishing between members of races other than their own.
Court of Appeals Ruling
In taking up Boone’s case, the Court discussed, at length, mistaken eyewitness identifications and the cross-race effect, noting that it has been recognized by trial courts in New York State and is “generally accepted” by experts in the field. Recognizing that the average juror is likely unfamiliar with the cross-race effect, and that expert testimony on the subject might be inadequate, the Court’s majority reached the following holding:
• where a witness’ identification of the defendant is at issue, and the two parties appear to be of different races,
• a court is required, upon request, to instruct the jury to consider whether the identifying witness and the defendant are of different races,
• and if so, to consider that some people have a greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race,
• and to consider whether the difference in race affected the accuracy of the witness’s identification.
In Associate Judge Michael Garcia’s concurrence, he expressed concern that the Court’s new rule will create confusion and hinder the discretion of trial courts. Maintaining that the trial court is in the best position to evaluate the evidence, Judge Garcia argued that the decision to deliver a jury instruction on the cross-race effect should remain within the trial court’s discretion.
What Does This Mean Going Forward?
Some supporters of the new rule say that it will help curb the number of wrongful convictions, which disproportionately affect African American men. Opponents, however, argue that sufficient safeguards already exist to protect against convictions based on faulty eyewitness testimony, including the trial court’s authority to exclude such evidence where its probative value is outweighed by prejudice to the defendant, as well as the defendant’s ability to cross-examine an identifying witness.
In total, the new rule handed down by the Court of Appeals is vague in some respects. For example, what is the standard for determining whether an identifying witness and a defendant “appear” to be of different races? An answer was not provided. The Court also failed to provide any criteria for determining whether the witness’ identification of the defendant is “at issue[.]” Accordingly, trial courts will likely choose to provide the instruction upon request, even in ambiguous cases, out of concerns with getting reversed.
The result is also unclear if defense counsel fails to request the cross-racial identification instruction when it is available. There, a defendant who ends up with a conviction may appeal on the grounds of ineffective assistance of counsel. If so, prosecutors may wish to request the instruction themselves to avoid a potential reversal on appeal.
While it is too early to tell what practical effect the Court’s decision will have on the prevalence of wrongful conviction based on eyewitness misidentifications, it is a noteworthy development in the law that will likely affect trial strategy for both criminal defense attorneys and prosecutors.
Ashley Southall, To Curb Bad Verdicts, Court Adds Lesson on Racial Bias for Juries, N.Y. Times (Dec. 15, 2017).
Eyewitness Misidentification, The Innocence Project.
Josefa Valasquez, Courts Required to Instruct Juries on Cross-Race Witness IDs, NY L. J. (Dec. 18, 2017).
People v. Boone, _NE 3d_, 2017 LEXIS 3722 (N.Y. 2017).
Rob Rosborugh, Court of Appeals Holds Trial Judges Must Give Cross-Racial Identification Jury Instruction in Almost Every Case, N.Y. Appeals.
Steven Ross Pomeroy, ‘They All Look Alike’: The Other-Race Effect, Forbes (Jan. 28, 2014).
Photo courtesy of KVNO News.