“I will never forget that face, or will I?”

Feb 23, 2009 “I will never forget that face, or will I?”

Bill of Rights. (From the public domain.)

People misidentify other people all the time. People startled by the trauma of a burglary or other felony in progress will tend to misidentify all the more.

As Maryland’s highest court recognized last week, depending on the person doing the identification, cross-racial identification can increase the risk of misidentification all the more. Dion G. Tucker v. Maryland, ___ Md. ___ (Feb. 20, 2009). In this instance, the Court of Appeals reversed the conviction of Tucker, because the trial court added the following erroneous final sentence to the jury instruction on cross-racial identification:

"In this case the identifying witness is of a different race than the Defendant. In the experience of many, it is more difficult to identify members of a different race than members of their own race. If this is also your experience, you may consider that fact in evaluating the witness’s testimony. You must also consider whether there are other factors present in the case which overcome any such difficulty in identification. For example, you may conclude that the witness had sufficient contacts with members of Defendant’s race that he would not have any greater difficulty in making a reliable identification There is no particular reason to think that cross-racial identification applies to eyewitnesses in actual criminal cases."

In reversing Tucker’s conviction, Maryland’s Court of Appeals addressed the incorrect jury instruction on cross-racial identification:

"It is the last sentence — suggesting that there are two sides to the issue of cross-race effect when real crimes, as opposed to laboratory situations, are involved — with which we are concerned. When the State offered the sentence, ‘There is no particular reason to think that cross-racial identification applies to eyewitnesses in actual criminal cases,’ it was only providing one part, one hypothesis, from the dichotomy of theories that were explained. In so doing, the State mischaracterized what we were suggesting in Smith — that there were commentators who both supported and denied the real-life effect of cross-racial identification — by offering only that portion of the sentence that referred to commentators who denied the cross-race effect in real life situations. The proffer was an inaccurate statement of the law, and, as a result, we hold that it was error for the trial judge to have given the instruction requested by the State." Jon Katz


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