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People v. Boone

New York Court of Appeals

December 14, 2017

The People & c., Respondent,
Otis Boone, Appellant.

          Paul Skip Laisure, for appellant.

          Seth M. Lieberman, for respondent.

          Legal Aid Bureau of Buffalo, Inc.; Brooklyn Defender Services, et al.; The Innocence Project, Inc.; Daniel R. Alonso, et al.; American Psychological Association; National Association for the Advancement of Colored People et al.; NAACP Legal Defense & Educational Fund, Inc., amici curiae.

          FAHEY, J.

         In light of the near consensus among cognitive and social psychologists that people have significantly greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race, the risk of wrongful convictions involving cross-racial identifications demands a new approach. We hold that when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, upon request, a party is entitled to a charge on cross-racial identification.


         On February 16, 2011, a white man in his 20s was walking in Brooklyn when he was approached by a stranger, a short-haired black man. The stranger asked to know the time, and the young man retrieved his cell phone. The stranger snatched the cell phone and fled. The victim gave chase, until the robber pulled out a knife and told him to stay where he was. The victim described his attacker as an African-American man, about six feet tall, weighing about 170 pounds, and wearing a baseball cap and a hooded sweatshirt.

         Ten days later, a white teenager was walking in the same neighborhood of Brooklyn, sending a text message from his cell phone, when a man behind him asked the time. The teenager looked back over his shoulder and observed a stranger, a black man, wearing a winter coat and a hat with flaps that covered his ears and the top of his head. The teenager looked at his cell phone and told the stranger the time. The stranger then grabbed the phone. The teenager did not immediately let go, and the robber stabbed him. The robber then took the phone and fled. Before the victim was taken to the hospital, he described the perpetrator to the police as an African-American man, about 18 years old and approximately six feet, two inches tall, and he gave an estimated weight.

         Defendant Otis Boone, a black man who was short-haired, 19 years old, and 6 feet tall, and weighed about 170 pounds, was suspected of committing the crimes. On March 14, 2011, defendant was placed in two six-person lineups and the victims separately identified him. The teenager was initially unsure whether defendant was his attacker, but identified him after he spoke the words "What time is it?" Defendant and the fillers in the lineups all wore hats.

         Neither cell phone was recovered, and no physical evidence linked defendant to the crimes.


         Defendant was charged with two counts of robbery in the first degree and other crimes.

         At defendant's jury trial in July 2012, during the charge conference, defense counsel requested that the jury be instructed on cross-racial identification. Supreme Court denied the request, on the basis that there had been no expert testimony or cross-examination concerning "a lack of reliability of cross-racial identification." The trial court gave the jury an expanded charge on eyewitness identification, based on the pertinent Criminal Jury Instruction (see CJI 2d [NY] Identification [One Witness]), omitting the part of the pattern instruction addressing cross-racial identification.

         The jury found defendant guilty of both robbery counts. On appeal from the judgment of conviction and sentence, defendant argued that Supreme Court denied him a fair trial by refusing to charge the jury on the inaccuracy of cross-racial identification.

         The Appellate Division modified the judgment, as to the sentence, and affirmed as modified, holding that Supreme Court had not erred in declining to instruct the jury on cross-racial identification (129 A.D.3d 1099');">129 A.D.3d 1099');">129 A.D.3d 1099');">129 A.D.3d 1099 [2d Dept 2015]). The Appellate Division reasoned that defendant had not "placed the issue in evidence during the trial" (id. at 1099-1100).

         A Judge of this Court granted defendant leave to appeal from so much of the Appellate Division's order as affirmed Supreme Court's judgment (26 N.Y.3d 1086');">26 N.Y.3d 1086');">26 N.Y.3d 1086');">26 N.Y.3d 1086 [2015]), and we now reverse.


         Mistaken eyewitness identifications are "the single greatest cause of wrongful convictions in this country" (State v Delgado, 188 N.J. 48, 60 [2006], citing State v Dubose, 285 Wis.2d 143, 162-163 [2005]), "responsible for more... wrongful convictions than all other causes combined" (Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 L & Human Behav 603, 604 [1998]). Inaccurate identifications, especially misidentifications by a single eyewitness, play a role in the vast majority of post-conviction DNA-based exonerations in the United States. Indeed, a recent report by the National Academy of Sciences concluded that "at least one mistaken eyewitness identification was present in almost three-quarters" of DNA exonerations (Identifying the Culprit: Assessing Eyewitness Identification 11 [2014]). According to amicus The Innocence Project, 71% of DNA exonerations nationally involve eyewitness misidentification (Innocence Project, DNA Exonerations in the United States, states [last accessed December 1, 2017]). This Court has noted in recent years the prevalence of eyewitness misidentifications in wrongful convictions and the danger they pose to the truth-seeking function and integrity of our justice system (see People v Marshall, 26 N.Y.3d 495, 502 [2015]; People v Santiago, 17 N.Y.3d 661, 669 [2011]; see also e.g. People v Riley, 70 N.Y.2d 523, 531 [1987]; People v Caserta, 19 N.Y.2d 18, 21 [1966]).

         Social scientists have found that the likelihood of misidentification is higher when an identification is cross-racial. Generally, people have significantly greater difficulty accurately identifying members of other races than members of their own race. According to a meta-analysis of 39 psychological studies of the phenomenon, participants were "1.56 times more likely to falsely identify a novel other-race face when compared with performance on own-race faces" (C.A. Meissner & J.C. Brigham, Thirty years of investigating the other-race effect in memory for faces: A meta-analytic review, 7 Psychology, Public Policy, and Law 3, 15 [2001]). The phenomenon is known as the cross-race effect or own-race bias.

         Our trial level courts have recognized the general scientific acceptance of the cross-race effect (see e.g. People v Norstrand, 35 Misc.3d 367');">35 Misc.3d 367 [Sup Ct, Monroe County 2011]; People v Williams, 14 Misc.3d 571');">14 Misc.3d 571 [Sup Ct, Kings County 2006]; People v Radcliffe, 196 Misc.2d 381');">196 Misc.2d 381 [Sup Ct, Bronx County 2003], affd 23 A.D.3d 301');">23 A.D.3d 301 [1st Dept 2005]). This Court too has had occasion to observe the significance of the effect. In People v Abney (13 N.Y.3d 251 [2009]), we held that a trial court erred in refusing, without the benefit of a Frye hearing, to allow an expert witness to testify on cross-racial identification and other factors affecting accuracy of identification (see id. at 268; see also People v LeGrand, 8 N.Y.3d 449, 454 [2007]).

         The cross-race effect is "generally accepted" by experts in the fields of cognitive and social psychology (Identifying the Culprit at 96), a point that the People do not dispute. Indeed, in a survey of psychologists with expertise in eyewitness identification, 90% of the experts believed that empirical evidence of the cross-race effect was sufficiently reliable to be presented in court (see John C. Brigham et al., The Influence of Race on Eyewitness Memory in Rod C.L. Lindsey et al., Handbook of Eyewitness Psychology 258 [2014], citing S.M. Kassin et al., On the "General Acceptance" of eyewitness testimony research: A new survey of the experts, 56 American Psychologist 405 [2001]). The phenomenon has been described as "[o]ne of the best documented examples of face recognition errors" (S.G. Young et al., Perception and Motivation in Face Recognition: A Critical Review of Theories of the Cross-Race Effect, 16 Personality & Social Psychology Rev 116, 116 [2012]).

         There is, however, a significant disparity between what the psychological research shows and what uninstructed jurors believe. One study showed that only 47% of jurors were familiar with the cross-race effect (see Tanja R. Benton et al., Eyewitness Memory is Still Not Common Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20 Applied Cognitive Psychology 115 [2006]). A survey of over 1, 000 jurors in Washington, D.C., cited by amicus the American Psychological Association, found that "[a] large plurality of the survey respondents (48%) thought cross-race and same-race identifications are of equal reliability, and many of the other [survey] respondents either did not know or thought a cross-racial identification would be more reliable (11%). Only 36% of the survey respondents understand that a cross-racial identification may be less reliable" (Richard S. Schmechel et al., Beyond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics J 177, 200 [2006]). These findings demonstrate that, while the cross-race effect is a matter of common sense and experience for some jurors, it is by no means a universal belief shared by all. The need for a charge on the cross-race effect is evident. The question becomes how this instruction is best given.


         As to each crime of which he was convicted, defendant, who is black, was found guilty entirely on the basis of the testimony of a single white witness identifying defendant as the person who had robbed him. Nevertheless, Supreme Court refused to give the requested charge instructing the jury on the relative inaccuracy of cross-racial identifications. One of Supreme Court's reasons for refusing to give the charge was that such an instruction should not be given if there has been no expert testimony on the subject. We reject this rationale and hold that Supreme Court erred in relying on it. For this reason and because the error was not harmless, we reverse.

         Expert testimony on the cross-race effect is not a precondition of a jury charge on the subject. Indeed, the People do not contend that it is, but instead insist, at least in this appeal, that expert testimony on the cross-race effect is a preferable substitute for a jury charge and one that renders the charge superfluous. We disagree.

         The decision to grant a request for expert testimony on the subject of cross-racial identification remains within the trial court's discretion (see LeGrand, 8 N.Y.3d at 455-456; People v Young, 7 N.Y.3d 40, 44 [2006]; People v Lee, 96 N.Y.2d 157, 160 [2001]). However, expert testimony is not necessary to establish the right to the charge.

         A psychological principle such as the cross-race effect may lend itself to expert testimony. "Despite the fact that jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror" (Lee, 96 N.Y.2d at 162; see also Santiago, 17 N.Y.3d at 672; Abney, 13 N.Y.3d at 268; LeGrand, 8 N.Y.3d at 458). Contrary to the People's position, this does not mean that the cross-race effect cannot be expressed in a jury charge.

         We have recognized that the same psychological principle may be the subject of expert testimony and a jury charge. For example, the pattern jury instructions ask jurors to consider "[f]or what period of time... the witness actually observe[d] the perpetrator" (CJI 2d [NY] Identification [One Witness]; CJI 2d [NY] Identification [Witness Plus]), because exposure time, the amount of time a witness has to view a perpetrator, affects that person's ability to identify someone accurately as the perpetrator. Yet, we have held that a trial court abused its discretion in refusing to hold a Frye hearing with regard to an expert's proposed testimony on the effect of exposure time, among other factors (see Abney, 13 N.Y.3d at 268; see also Santiago, 17 N.Y.3d at 672). [1]

         Similarly, as noted above, a juror may have a tentative belief, based on his or her ordinary experiences, that cross-racial identifications are often inaccurate, but most jurors will have no knowledge of the research demonstrating the cross-race effect. Expert testimony explaining the studies to the jury is admissible, because "it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror" (De Long v County of Erie, 60 N.Y.2d 296, 307 [1983]), with the decision to admit subject to the trial court's discretion (see LeGrand, 8 N.Y.3d at 455-456). Such expert testimony does not render a charge regarding the cross-race effect superfluous.

         In short, the absence of expert testimony on cross-racial identification does not preclude the charge.


         Supreme Court also erred in assuming that a cross-racial identification charge should be predicated on whether defense counsel cross-examined the People's witnesses about their identifications. An eyewitness is often utterly confident about an identification, expressing the identification or recollection of identification with subjective certainty, and hence entirely unshakable on cross-examination. "[A]s scholars have cautioned, most eyewitnesses think they are telling the truth even when their testimony is inaccurate, and because the eyewitness is testifying honestly (i.e., sincerely), he or she will not display the demeanor of the dishonest or biased witness. Instead, some mistaken eyewitnesses, at least by the time they testify at trial, exude supreme confidence in their identifications" (State v Henderson, 208 N.J. 208, 236 [2011] [internal quotation marks, square brackets, and citation omitted]; see Jules Epstein, The Great Engine that Couldn't: Science, Mistaken Identity, and the Limits of Cross-Examination, 36 Stetson L Rev 727, 772 [2007]). Honesty and accuracy are entirely different categories by which jurors evaluate testimony. It is the fact of a cross-racial identification that should be the basis of the court's charge, not the nature of the questions asked on the examination.

         Amici former judges and prosecutors observe that cross-examination that is "aimed at establishing that a witness may have difficulty identifying members of another race may offend the witness and the jury, without any benefit to the examiner" (Brief of Former Judges and Prosecutors as Amici Curiae at 8, citing Epstein at 775). The amici note that "[a]s a society, we do not discuss racial issues easily. Some jurors may deny the existence of the cross-race effect in the misguided belief that it is merely a racist myth... while others may believe in the reality of this effect but be reluctant to discuss it in deliberations for fear of being seen as bigots. That, however, makes an instruction all the more essential" (Brief of Former Judges and Prosecutors at 15 [internal quotation marks, citations, and square brackets omitted]). As with whether to seek expert testimony, cross-examination should be a decision that counsel makes within the context of an individual case.


         High courts in other states have recently considered the significance of the cross-race effect and three have required that trial courts, in appropriate cases, instruct juries regarding the phenomenon.

         In 2011, in State v Henderson (208 N.J. 208), the Supreme Court of New Jersey held that a cross-racial identification charge (to be drafted by the state Criminal Practice Committee and Committee on Model Criminal Jury Charges) must be given "whenever cross-racial identification is in issue at trial" (id. at 299 [2011]) [2]. The high court adopted the findings of a Special Master, appointed to evaluate scientific and other evidence about eyewitness identifications, who had heard testimony by seven experts and issued an extensive report. The court "anticipate[d]... that with enhanced jury instructions, there will be less need for expert testimony. Jury charges offer a number of advantages: they are focused and concise, authoritative (in that juries hear them from the trial judge, not a witness called by one side), and ...

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