“All the identifying witnesses were speaking from casual observation of men they had never seen before, men of foreign race, under circumstances of unusual confusion.” Felix Frankfurter, The Case of Sacco and Vanzetti (1923).
We recently watched an oral argument in the Court of Appeals involving a Brooklyn man accused of stabbing a stranger to get his cell phone. At trial, defense counsel had asked the judge to give “a cross-race charge,” referring to New York’s jury instruction added in 2011 to the book of standard jury charges.
“What cross-race charge?” retorted the learned judge, who apparently hadn’t updated his charge book in awhile. “What are you talking about?”
Although there was no question that the defendant and eyewitness were of different races, the judge ended up giving only the standard charge about credibility and opportunity to view, leaving out the 2011 addition that says, “You may consider whether there is a difference in race between the defendant and the witness who identified the defendant, and if so, whether that difference affected the accuracy of the witness’s identification. Ordinary human experience indicates that some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race.”
The prosecutor at the oral argument, after some chin music deploring wrongful convictions, opposed any cross-race instruction. “It’s not neutral,” he kept bleating. It talks about cross-race identification “in a negative fashion!” If there must be such an instruction, it should only tell the jury to consider what effect, if any, the race difference had on the identification.
A couple of the judges gently explained that the point of giving the instruction is that the cross-race effect is negative. The scientific consensus is that cross-racial identifications are more likely to be mistaken than same-race i.d.’s, but most jurors don’t know this. “Since when are courts in the business of telling jurors things not within their ken?” the prosecutor sneered back.
Since when are courts required to give only neutral instructions? Imagine this:
“Ladies and Gentlemen of the jury, you may consider whether the People have proved the defendant’s guilt beyond a reasonable doubt and what effect, if any, that might have on your verdict. You may also consider what adverse inference, if any, to draw from the defendant’s failure to testify. As for visiting the crime scene, reading or watching media accounts or discussing the case outside the jury room, you may consider what effect, if any, that might have on your ability to reach a verdict based only on the trial evidence.”
The rule in Massachusetts and New Jersey is that a cross-race instruction is mandatory whenever identification is at issue unless both parties agree that it’s inapplicable to the case. The instruction goes, “If the witness and the person identified appear to be of different races (or ethnicities), you should consider that people may have greater difficulty in accurately identifying someone of a different race (or ethnicity) than someone of their own race (or ethnicity).”
Unlike NY, the Red Sox Republic relies on scientific consensus about the cross-race effect instead of folk psychology about “ordinary human experience.” The full charge explains that memory is not like a video recording that can be replayed unaltered, but a process of encoding, storing and retrieving that can be tainted at any of those stages. “It annoys me no end to hear it argued that it’s not appropriate for judges to instruct on science,” said the Chief Judge of the Massachusetts court at a recent Innocence Project event. “If you don’t give the charge, you’re misinforming the jury. You’re urging them to use common sense when the science is counter-intuitive.”
Defense counsel urged the Court of Appeals to adopt the Massachusetts rule. “But we’re talking about New York now,” answered one of the judges. Well, yes. When it comes to implementing safeguards against misidentification like double-blind lineups, expert testimony or jury instructions, the Brooklyn DA’s Office can be counted on to oppose them tooth and nail.
They might as well object to the tide coming in.
Addendum: A month later the Court of Appeals held that courts must instruct the jury about the unreliability of cross-race identification. Judge Michael “Homeland Security” Garcia, after duly genuflecting to the notion that misidentification is bad, nevertheless fumed that a mandatory instruction trespasses on the trial judge’s holy discretion. In our humble opinion, most trial judges – except for the nuts who get reversed over and over for making up their own jury instructions – would rather have a clear mandate than have to think about it every time.