If you’ve witnessed a crime, you’ll swear you can accurately identify the person who did it. But, there’s a good chance you’re wrong, especially if that person is of a different race. Still, jurors believe eyewitness accounts.
And, in Washington state, the law doesn't allow judges to tell juries about the problems associated with cross-racial eyewitness identification. One Court of Appeals judge says that's wrong.
Scientists refer to the phenomenon as the "cross race effect." It’s much easier for us to describe the characteristics of a passing stranger who shares our race and ethnicity than someone who doesn’t. So, for example, a white witness identifying a black suspect may only really remember that the person was black.
Chris Meissner, with the National Science Foundation, has reviewed 40 years of research on race identification. He says our brains are wired to instantly categorize what we see.
“Now it's important to note that this is not tied to motivation, it’s not tied to prejudice. In fact, one might think of it as an evolutionary principle that in fact our systems are set up to identify those within our group versus those outside of our group,” Meissner said.
This has come into play in court cases. There have been numerous incidents of jurors finding an innocent person guilty after the testimony of an eyewitness. Jackie McMurtrie, director of the Innocence Project at the University of Washington, says there are reasons this keeps happening.
“People tend to believe eyewitnesses because the eyewitness is really doing their best to get it right. Many have been the victim of a horrible crime and so that makes their testimony very powerful and persuasive,” she said.
And often wrong.
Seventy-five percent of the prisoners exonerated through DNA testing prompted by the Innocence Project were originally convicted because an eyewitness, often of a different race, pointed the finger at them.
The American Bar Association and other legal groups say juries should be given instructions pointing out the dangers of relying on such testimony. Federal courts and some states already do that now.
But, in Washington, there’s a hitch.
The Washington Supreme Court says letting a judge warn jurors about the questionable accuracy of cross racial eyewitness accounts amounts to letting a judge comment on the validity of the evidence, something that’s prohibited by the state constitution.
Some lower court judges are frustrated by the high court's position. That was more than evident recently in a Washington Court of Appeals ruling.
In a rather unusual move, Judge Anne Ellington, writing a concurring opinion in State of Washington v. Bryan Edward Allen, openly chided the State Supreme Court to change its stance. She wrote:
“...we should advise jurors of a fact known to us but contrary to their intuition: that cross racial identification should be carefully scrutinized. We can draft such an instruction without making a judicial comment on evidence, and I believe it is past time to do so.”
Ellington added:
"Basic fairness requires that jurors be informed about established frailties in certain kinds of evidence when such frailties are not common knowledge."
In State of Washington v. Bryan Edward Allen, Allen appealed his conviction for felony harassment, contending that he did not receive a fair trial because the trial court refused to give his proposed jury instruction on cross racial eyewitness identification.
The Court of Appeals upheld his conviction, and Ellington said she had no choice but to concur, because the State Supreme Court has previously held that such a jury instruction is not allowed.
