In 66 of the 216 wrongful convictions overturned by DNA testing, cross-racial eyewitness identification was used as evidence to convict an innocent defendant. Cross-racial identification is when the witness and the defendant being identified are of different racial backgrounds. Three decades of social science research has shown that cross-racial bias exists in identification. As Zeke Edwards (a Mayer Brown Eyewitness Identification Fellow at the Innocence Project) noted in a blog post last week, the American Bar Association falls short in the language they recommend judges read to juries in cases involving cross-racial identification.
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.”
Edwards goes on to cite a better jury instruction, which he encourages lawyers to propose in cross-racial identification cases.
Read his full post here
. (Eyewitness Identification Reform Blog, 05/16/08)