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Univ. of South Carolina School of Law

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Tuesday, May 17, 2011

Eyewitness Account: Court Of Appeals Of Washington Practically Begs Supreme Court Of Washington To Approve Jury Instruction On Cross-Racial Identifications

Should defendants be able to present expert testimony and/or jury instructions about the inaccuracy of cross-racial identifications? I find this to be a fascinating question (see my posts here, here, here, here, here, and here), and it is one that has divided the courts. As the recent opinion of the Court of Appeals of Washington, Division 1, in State v. Allen, 2011 WL 1745014 (Wash.App. Div. 1 2011), makes clear, Washington courts do not allow instructions about the inaccuracy of cross-racial identification but they can in their discretion allow expert testimony on the subject if certain factors are present. But here's the interesting thing about the court's opinion in Allen: The Court of Appeals seemed to say that such instructions should be given, and it seemingly laid out a strong case for the giving of such instructions. And, in effect, the Court of Appeals seemed to be begging the Supreme Court of Washington to agree with it.

In Allen, Bryan Allen was convicted of felony harassment after a trial in which a witness for the prosecution made a cross-racial identification. Allen thereafter appealed, claiming, inter alia, that the trial court erred by not giving the jury one of two proposed alternative jury instructions regarding the inaccuracy of cross-racial identifications. The first proposed instruction stated:

"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 member's [sic] of one's own [race]. Psychological studies support this impression. In addition, laboratory studies reveal that even people with no prejudice against other races and substantial contact with persons of other races still experience difficulty in accurately identifying members of a different race. Quite often people do not recognize this difficulty in themselves. You should consider these facts in evaluating the witness's testimony, but you must also consider whether there are other factors present in this case."

And, the second proposed instruction stated:

“In this case, the defendant, Bryan [Allen], is of a different race than Gerald Kovacs, the witness who has identified him. You may consider, if you think it is appropriate to do so, whether the fact that the defendant is of a different race than the witness has affected the accuracy of the witness'[s] original perception or the accuracy of a later identification. You should consider that in ordinary human experience, some people may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. You may also consider whether there are other factors present in this case which overcome any such difficulty of identification." of identification.”

According to the court, the trial court's refusal to give either instruction denied him his due process right to a fair trial and his right to present a defense. After doing a nice job of laying out the different approaches taken on the issue by various jurisdictions, the Court of Appeals of Washington noted that

(1) the Supreme Court of Washington previously found that a trial court did not err in refusing to give a jury instruction on the inaccuracy of cross-racial identifications in State v. Laureano, 682 P.2d 889 (Wash. 1984); and

(2) the Supreme Court of Washington previously found in State v. Watkins, 766 P.2d 484 (Wash. 1989), that Washington courts cannot give general jury instructions on the inaccuracy of eyewitness identifications.

So, what was the basis for the court's conclusion in Watkins? It was Article IV, Section 16 of the Washington Constitution, which provides that "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." The problem, then, with jury instructions is that witness credibility is a factual question, meaning that such instructions constitute improper judicial comment on an issue that jurors should decide for themselves based upon direct testimony and cross-examination. 

The court in Allen then noted, though, that

Allen argues this rationale has been challenged by subsequent research. Traditional trial protections of suppression hearings, voir dire, cross-examination of witnesses, closing arguments, and general jury instructions on the credibility of witnesses do not adequately address the special recognition impairments present in cross-racial eyewitness identification. Criminal Justice Section Report at 7. "Although cross-examination is a powerful tool for exposing lies, it is not particularly effective when used against eyewitnesses who believe they are telling the truth." Jacqueline McMurtrie, The Role of the Social Sciences in Preventing Wrongful Convictions, 42 AM.CRIM. L. REV. 1271, 1277 (2005)...The additional protection of a cross-racial jury instruction is needed, "because the own-race effect strongly influences the accuracy of identification, because that influence is not understood by the average juror, because cross-examination cannot reveal its effects, and because jurors are unlikely to discuss racial factors freely without some authorization to do so." Sheri Lynn Johnson, Cross–Racial Identification Errors in Criminal Cases, 69 CORNELL L. REV. 934, 982 (1984).

At present, the existing alternative to permitting a jury instruction is to allow expert testimony on the issue. Under Washington law, expert testimony may be admitted, at the discretion of the trial court, to discuss the reliability of eyewitness testimony, but only if certain factors are present. Cheatam, 150 Wash.2d at 649, 81 P.3d 830. But, even if admitted by the trial court, expert testimony is not always available, as it is expensive and there are a limited number of experts available. Criminal Justice Section Report, at 3. And, expert testimony may not explicitly permit juries to raise race-related issues in the jury room to the extent necessary to combat the undue reliance on eyewitness testimony.

The import of this language is clear: The Court of Appeals wanted to find that the trial judge should have given one of Allen's proposed jury instruction, but it felt constrained by the Washington Constitution and prior precedent by the Supreme Court of Washington. Indeed, the Court of Appeals then proceeded to set forth a laundry list of instructions that Washington courts have found permissible. Specifically, the court cited to the Supreme Court of Washington's opinion in State v. Carothers, 525 P.2d 731 (Wash. 1974), in which it found no problem with an accomplice liability instruction, concluding that

An instruction to view the testimony of an accomplice with caution is an indication not of the judge's attitude toward the testimony of a particular witness, but of the attitude of the courts generally toward the testimony of witnesses of this type. It is an attitude which has been garnered from many years of observation of the prosecutorial process. The courts have an expertise upon this subject which the ordinary citizen cannot be expected to have. They have observed that innocent persons may be sent to prison or to death upon the testimony of an accomplice. At the same time such testimony is not invariably false and it may be the only proof available.

According to the Court of Appeals,

The rationale applied in Carothers could apply in equal force to a cross-racial eyewitness identification instruction, which is not invariably false and at times is the only proof available to the State but has resulted in the convictions of innocent people. However, it is for the Supreme Court to consider whether there truly has been a showing that the cross-racial identification instruction "impedes the administration of justice."...At present, it has not provided approval of any pattern jury instruction on the subject.

Therefore, we follow the Supreme Court's lead in Loreano. We also follow our prior cases holding that an instruction about the reliability of eyewitness evidence risks violating the constitutional prohibition against comments on the evidence....We conclude that Allen's due process rights were not violated. We hold that the trial court did not err by refusing to instruct the jury on cross-racial eyewitness identification.

In other words, the Court of Appeals clearly wanted to find that the trial court could have, and should have, given a jury instruction, and it practically served up the rationale for allowing such an instruction on a silver platter to the Supreme Court of Washington. Will the Washington Supremes take the bait? I guess that we will have to see.

-CM

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