Cross-Racial Identification Errors in Criminal Cases

CORNELL LAW REVIEW VOLUME 69 ISSUE 5 JUNE 1984

Cross-Racial Identification Errors in Criminal Cases
Sheri Lynn Johnson

INTRODUCTION

  • Discusses the case of William Jackson, wrongfully convicted based on cross-racial identification.

  • Jackson was convicted of two rapes despite evidence suggesting he was not the perpetrator.

  • The case's popularity has resulted in political attention regarding wrongful convictions and the adequacy of identification procedures.

  • Emphasizes the lack of public awareness regarding the frequency of errors in cross-racial identifications, which often lead to wrongful convictions.

I. THE RELIABILITY OF CROSS-RACIAL IDENTIFICATION

A. The “Own-Race” Phenomenon

  1. Laboratory Findings
    a. White Subjects

    • Ten studies show significant differences in ability to recognize same-race vs. other-race faces, with substantial impairment observed for black face recognition.

    • A study involving children and adults supports age-related improvements in own-race recognition.

    • Eleven studies find a consistent own-race effect.
      b. Black Subjects

    • Mixed results: five studies indicate significant difficulties recognizing white faces, while four studies show no significant differences.
      c. Asian American Subjects

    • Limited research; findings suggest that recognition of one’s own race is generally better.

  2. External Validity

    • Discusses whether laboratory findings on recognition errors apply in real-world settings.

    • Acknowledges empirical evidence supporting the existence of the own-race effect in criminal identifications, regardless of the stakes involved.

B. Correlates and Explanations of the Own-Race Effect

  • Discusses various hypotheses explaining the phenomenon, including biologically based ethnocentrism, prejudice, lack of contact with other races, and the schema rigidity model (which posits that recognition improves with familiarity and formalizes memory processing).

C. Laymen's Beliefs About Cross-Racial Identification

  • Research shows jurors favor eyewitness testimony over reliability; studies show jurors struggle with recognizing inaccuracies in eyewitness testimony.

D. Exacerbating Factors in White Victim/Black Defendant Cases

  • Explains how cross-racial identification errors are heightened in cases where the victim is white and the accused is a black male.

  • Discusses identification procedure biases that lead to higher chances of misidentification for black defendants.

II. THE ADEQUACY OF EXISTING LEGAL PROTECTIONS

A. Suppression Hearings

  • Discusses procedures and admissibility standards for eyewitness identification.

  • Highlights inherent limitations and the challenges in exposing cross-racial recognition impairment during pretrial proceedings.

B. Cross-Examination of Eyewitnesses

  • Reviews the effectiveness of cross-examination to reveal inaccuracies in witnesses’ identification, emphasizing it cannot necessarily expose inherent racial recognition biases.

C. Closing Arguments

  • Identifies issues with relying on closing arguments to inform jurors about identification reliability, highlighting judicial restrictions around discussing race and identification accuracy.

III. DEVELOPING ADDITIONAL SAFEGUARDS

A. Extreme Measures

  • Considers extreme measures such as outright exclusion of all eyewitness testimony based largely on cross-racial identification issues, but concludes such measures would hinder justice.

B. Expert Testimony

  1. Proposed Content and Presentation

    • Advocates for the use of expert testimony on the own-race effect in cross-racial identification cases to inform jurors of psychological data.

    • Emphasizes the importance of ensuring jurors understand how daily experiences may lead to innate biases in identification.

  2. Judicial Response

    • Discusses varying standards and courts' reluctance to admit expert psychological testimony regarding the own-race effect due to fears of extraordinarily high influence.

    • Appellate court decisions have increasingly rejected the notion that expert testimony on psychological trafficking directly affects witness credibility.

C. Jury Instructions

  1. Content and Timing of Instructions

    • Proposes comprehensive jury instructions be developed regarding the own-race effect.

  2. Judicial Response

    • Notes some courts have begun forming cautionary instructions on eyewitness identifications influenced by the debates surrounding the own-race effect.

CONCLUSION

  • Reiterates the deficiencies in current legal procedures to address the own-race effect and make suggestions for improving the accuracy of eyewitness identification.

  • Suggests easier approaches, such as establishing stipulations between prosecution and defense regarding expert testimony and cautionary jury instructions regarding the own-race effect.

  • Emphasizes the broader implications of biases within the criminal justice system and the need for acknowledgment of systematic failings to address wrongful convictions arising from racial biases.

  • Urges the necessity for remedial action, emphasizing collective societal responsibility.