Further Developments on Cross-Racial Identification in Criminal Trials

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11/19/18

The issue of cross-racial identification has been a widely discussed one in the criminal defense bar in recent years. Cognitive and social psychologists have determined that people have greater difficulty identifying people from a race other than their own. This is known as the “cross-race effect.” The “cross-race effect” has serious implications in a criminal trial where the testimony of a witness identifying a defendant of a different race may be crucial and determinative of the final outcome.
 
In 2017, the Court of Appeals decided People v. Boone, 30 N.Y.3d 521 (2017). The Court held in Boone that where a trial includes the testimony of a witness visually identifying a defendant of a different race, the defendant is entitled to a jury charge on the “cross-race effect.” Such a jury charge would permit the jury to consider and determine whether the “cross-race effect” had any impact on the accuracy of the identification. Boone was considered a progressive decision for its expansion of defendants’ rights and its careful consideration of emerging social science. 
 
Since Boone was decided, courts in New York have increased and expanded the role of the “cross-race effect” in criminal trials. In a decision on October 30, 2018, the Appellate Division, First Department decided People v. Crovador. In Crovador, the Court held that a defendant is not only entitled to a jury instruction on the “cross-race effect,” but that a defendant may introduce expert testimony to explain the “cross-race effect” to the jury. A defendant may now use a variety of tools to challenge the accuracy of an identification that was potentially compromised by the “cross-race effect.”
 
Moreover, so important was the impact of the “cross-race effect,” that the Court decided the rules surrounding it would be retroactively applied. Accordingly, it reversed Mr. Crovador’s 2014 conviction because he was not permitted to introduce expert testimony or give a jury charge on cross-racial identification. This is notable because Mr. Crovador was convicted three years before Boone was decided. At the time of his trial, it was not mandatory for a trial court to give credence to the “cross-race effect.” Crovador marks another important expansion of defendants’ rights relating to cross-racial identification. 
 
We expect that the rights of defendants to demonstrate bias related to cross-racial identification will continue to be enlarged. We will continue to update this blog with new developments on this important and emerging topic.

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