NY Court of Appeals endorses cross-racial identification jury instruction

What do we tell the jury about eyewitness identifications in cases where there is a cross-racial identification, such as when a white witness says a black man was at the scene of the crime? The New York Court of Appeals takes up that issue, holding that when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, a party is entitled to a charge on the risks inherent in cross-racial identification.

The case is People v. Boone decided on December 14. The Court of Appeals reviews the scholarship and literature on the likelihood of misidentification when an identification is cross-racial, noting that "the phenomenon is known as the cross-race effect or own-race bias." The scholarship says that generally, "people have significantly greater difficulty accurately identifying members of other races than members of their own race. . . . [P]articipants were 1.56 times more likely to falsely identify a novel other-race face when compared with performance on own-race faces."

This phenomenon is problematic in criminal cases where the defendant is identified as the perpetrator based on eye-witness identification. While 47 percent of jurors are familiar with the cross-race effect, this is "by no means a universal belief shared by all. The need for a charge on the cross-race effect is evident." So here is the how the Court of Appeals wraps up this issue:

in a case in which a witness's identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness's identification.  The instruction would not be required when there is no dispute about the identity of the perpetrator nor would it be obligatory when no party asks for the charge.