Monday, May 12, 2008

Pattern Instruction for Cross-Racial Eyewitness Identifications

Below, you will find a model instruction on cross-racial eyewitness identifications that was proposed by the Criminal Justice Section of the American Bar Association’s Committee on Rules of Criminal Justice, Evidence, and Police Practices. In January, the committee adopted a resolution to encourage judges to give the following model jury instruction in cases where an eyewitness and the defendant are not the same race:

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
reliable identification.]

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


Meryl said...

Congrats on your first post, Carl!

Ezekiel Edwards said...

At a groundbreaking two-day eye-ID litigation conference in NYC in March co-sponsored by the Eyewitness ID Reform Litigation Network, we addressed the issue of cross-race instructions, including the ABA version referred to here. In short, while it is certainly good news that the ABA is paying attention to this issue, since the average instructions on eye-ID are woefully inadequate, the ABA instruction is far from ideal for the following reasons.

First, the initial language is conditional. “You ‘may’ consider, if you think it is appropriate …,” instead of you “should” consider.

Second, there is no mention of the numerous scientific studies that have shown, empirically, that cross-racial bias exists. In cases where experts have not testified at trial on the subject (i.e., most cases), jurors are left ignorant of the copious social science research on the topic. Instead of stating that “scientific studies have shown,” the court cites the amorphous “ordinary human experience.”

Third, the instruction suggests erroneously that sufficient contacts with another race may well overcome cross-race bias. Again, no science is cited. Moreover, it appears that contacts alone do not offset cross-race bias; rather, it is exposure combined with differentiating tasks (i.e., merely living in a neighborhood versus teaching a class of 30 in which one must distinguish among members) that might mitigate the effect, but even then the mitigation appears to be minimal.

Fourth, there is no discussion of prejudice (i.e., that cross-race bias exists in people seemingly without prejudice).

A better instruction (though not a perfect one), and one which I would encourage lawyers to propose instead of the ABA version, can be found in Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 (1984):

“In this case the identifying witness is of a different race than the defendant. In the experience of many it is more difficult to identify members of a different race than members of one's own. Psychological studies support this impression. In addition, laboratory studies reveal that even people with no prejudice against other races and substantial contact with persons of other races still experience difficulty in accurately identifying members of a different race. Quite often people do not recognize this difficulty in themselves. You should consider these facts in evaluating the witness's testimony, but you must also consider whether there are other factors present in this case that overcome any such difficulty of identification.”

The Network has sample motions for jury instructions on both estimator and system variables. Lawyers should be encouraged to tailor these to the facts of their cases and submit.

Attorneys should also look at the Long and Brink cases in Utah, and contact the Network about Utah's sample eye-ID instructions on various factors from which, particularly when combined, is very comprehensive (though the cross-race portions can be made more robust).

Zeke Edwards
The Innocence Project