In this case, the defendant, _______________ (insert
name), is of a different race than ________________
(insert name of identifying witness), the witness
who has identified [him] [her]. You may consider, if you
think it is appropriate to do so, whether the fact that
the defendant is of a different race than the witness
has affected the accuracy of the witness’ original
perception or the accuracy of a later identification. You
should consider that in ordinary human experience,
some people may have greater difficulty in
accurately identifying members of a different race than they do
in identifying members of their own race.
You may also consider whether there are other
factors present in this case which overcome
any such difficulty of identification. [For example, you
may conclude that the witness had sufficient contacts
with members of the defendant’s race that
[he] [she] would not have greater difficulty in making a
The instruction is intended as a supplement for the instructions that are currently used for eyewitness identifications (like PIK Crim.3d 52.20). The committee noted that the instruction is needed most when “… little or no evidence has been presented corroborating the eyewitness identification, and the circumstances raise doubts about the reliability of the identification.” (Minutes of the ABA Criminal Justice Section’s Committeeon Rules of Criminal Procedure, Evidence, and Police Practices, held at Fordham University School of Law, New
York City, Jan. 4, 2008).
The model instruction was based on the bulk of research that shows that cross-racial identifications are not as reliable as same-race identifications. See Michael Salfino, Limits to the Lineup: Why We’re Twice as Likely to Misidentify a Face of Another Race, 40 Psych. Today 6, 30 (Nov./Dec. 2006). In creating the instruction, the committee combined ideas from different jurisdictions. See e.g., United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972); People v. Palmer, 154 Cal. App. 3d 79 (Cal. Ct. App. 1984); State v. Long, 721 P.2d 483, 492 (Utah 1986); New Jersey v. Cromedy, 727 A.2d 457 (N.J. 1999); New Jersey Identification Instruction: In-Court and Out of Court Identification, New Jersey Model Criminal Jury Charges, 2002 WL 32976451 (Revised Oct. 1999)).
It seems like a trial judge would be more likely to give an instruction that has the endorsement of the ABA. If you are interested in other ideas regarding eyewitness identifications, check out the eyewitness id blog at http://eyeid.wordpress.com/.