NY group says juries should weigh witnesses' race

Michael Virtanen

ALBANY, N.Y. — New York juries should consider the greater inaccuracy of identifications made by crime witnesses when the suspect is a different race, according to a judicial task force.

In a report to Chief Judge Jonathan Lippman on wrongful convictions, the group that includes judges, prosecutors and defense lawyers called for changes in the way judges instruct jurors when they have to decide whether testimony is reliable.

The task force advocated standardizing practices for police lineups and photo arrays of suspects, saying misidentifications are the leading cause of errors. District attorneys statewide have endorsed similar measures as so-called best practices.

“Nothing is more damaging to the pursuit of justice than the conviction of an innocent person,” Lippman said. He promised to work to implement the recommendations. Some will require legislation.

The task force backed amending state law so DNA samples are taken from everyone convicted in New York of any felony or criminal misdemeanor. Under current law, criminal felonies and 35 misdemeanor convictions require that. Lippman, who appointed the task force shortly after he became chief judge in 2009, noted 266 DNA exonerations over the past two decades, 27 of them in New York.

The group is studying other possible measures like requiring videotaping of all felony interrogations, which some police departments have begun, and changing the way prosecutors share information with defense attorneys.

However, the change in standard jury instructions can be adopted by a standing judicial committee. The task force proposed adding language, when criminal identification is an issue, to include when applicable: “You should consider that some people may have greater difficulty in accurately identifying members of a different race than in identifying members of their own race.”

In an examination of cross-racial identification errors in criminal cases, Cornell law professor Sheri Lynn Johnson in a 1984 paper listed a series of earlier laboratory studies showing the so-called “own-race phenomenon,” where recognition rates could differ by 30 percent. They showed whites were significantly less able to recognize black or Asian faces, with other studies showing somewhat similar results for blacks and Asians.

Four other states, California, Massachusetts, New Jersey and Utah, have some version of jury instruction on cross-racial identification, according to court officials.

The New York task force has proposed amending state law to allow photo identifications as admissible trial evidence, saying technical advances have made them fair. For best practices with witnesses, they proposed double-blind photo arrays and lineups, where the police officer doesn’t know who the suspect is, documented procedures, signed results, and advising the witness that the criminal may not be in the group at all. Also, each photo array should include at least five filler pictures, all the same gender, clothing, facial hair, race, age, height and distinctive characteristics.

The task force examined the records from 53 exonerations for various reasons in New York.

Associated Press