Top court sets new rule on cross-racial identification

Trial judge denied defense request that jury take instruction on cross-racial identification

By Bennett Loudon
BridgeTower Media Newswires

The New York State Court of Appeals has not only overturned a robbery conviction and granted a new trial because the judge refused to give the jury a special instruction on the dubious nature of cross-racial identification, but also established a new mandate requiring the instruction in future cross-racial ID cases.

“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,” Judge Eugene M. Fahey wrote in the decision filed Thursday.

“We hold that when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, upon request, a party is entitled to a charge on cross-racial identification,” Fahey wrote in the 37-page decision.

While the decision to overturn the conviction and grant a new trial was unanimous, a concurrence by Judge Michael Garcia, joined by Leslie Stein, disagreed with the new dictate.

In July 2012, the defendant, Otis Boone, 26, a black man, was convicted of two counts of first-degree robbery and sentenced to 10 years on one count and 15 years on the other, plus post-release supervision.

On appeal, the Appellate Division of state Supreme Court, Second Department, reduced the prison terms to five and 10 years. But the Second Department upheld the trial decision by state Supreme Court Justice Vincent Del Giudice not to give the jury the cross-racial identification charge.

The victims of both crimes, which happened 10 days apart, were white men who had their cellphones snatched from their hands after the culprit asked them if they knew the time. In the second robbery, the victim was stabbed by the robber when he did not immediately let go of his phone.

Both victims identified Boone from a lineup.

At the trial, Del Giudice denied the defense request that the jury be given the cross-racial identification instruction because there had been no expert testimony about the lack of reliability of cross-racial identification.

“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,” Fahey wrote in the Court of Appeals decision.

He cited a report by the National Academy of Sciences which found that “at least one mistaken eyewitness identification was present in almost three-quarters” of DNA exonerations.

The Court of Appeals disagreed with Del Giudice’s finding that expert testimony was a necessary prerequisite to the cross-racial identification charge.

And Fahey wrote in the decision that Del Giudice also erred by ruling that the special jury instruction must be predicated by a defense cross-examination of the witnesses about the identification.

“There’s a tendency for people to make incorrect identifications, and for juries and judges to accept, as accurate and reliable, inaccurate identifications,” said attorney Brian Shiffrin, partner at Easton Thompson Kasperek Shiffrin LLP.

“Anything that can be done to make juries somewhat more skeptical and somewhat more hesitant about accepting unreliable identification will, at least potentially, reduce the dangers of a wrongful conviction,” Shiffrin said.

Gary Muldoon, partner at Muldoon, Getz and Reston, called the decision “a significant step forward.”

“To my mind, the problem of cross-racial identification, psychologists have known about for decades. This decision brings New York in line with several other states,” Muldoon said.

“It allows defense counsel a better platform to argue that the witness is mistaken,” he said.

The Court of Appeals decision established a new requirement for the cross-racial identification charge if requested when the witness and defendant are of different races.

According to the decision, the jury must be instructed to consider whether there is a difference in race between the defendant and the witness. If so, the jury 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.

The instruction will not be required when there is no dispute about the identity of the perpetrator or if the charge is not requested.

“It’s fairly clear what the Court of Appeals instruction is and our obligation is to follow the instructions as the Court of Appeals promulgates it, and this one is pretty clear,” said Assistant Monroe County District Attorney Benjamin Skomsky.

Garcia wrote in a concurrence that he agreed that Del Giudice abused his discretion by not giving the jury the cross-racial identification charge but he disagrees with the new mandate requiring the charge if requested and argued that the decision should remain at the discretion of the judge.

“The majority advances a new rule that purports to require a cross-racial identification charge upon request, while vaguely suggesting that the trial court retains some undefined discretion to deny the charge where, for instance, identification is not ‘at issue,’ ” Garcia wrote.

“The rule set out by the majority provides conflicting signals to our trial courts. On the one hand, it suggests some undefined discretion in considering a defendant’s request for a cross-racial identification charge. But the majority’s refusal to define that discretion — or even to use the word — signals a mandatory rule, complete with harsh consequences for the trial judge who does not realize it. That confusion benefits no one,” Garcia wrote.