EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, August 21, 2013

What's the Harm?: Cynthia Lee's Making Race Salient & Jury Instructions on Racial Bias and Cross-Racial Identifications

Cynthia Lee, the Charles Kennedy Poe Research Professor of Law at the George Washington University Law School, presented her forthcoming article, Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society, at the SEALS Conference. In this post, I want to focus on one specific section of that terrific article. That section deals with the use of jury instructions to make race salient in cases like the Trayvon Martin/George Zimmerman trial. According to Professor Lee,

Another way race can be made salient is through jury instructions. For example, U.S. District Court Judge Mark Bennett expressly tells jurors in his courtroom that they should not rely on implicit biases: 

Do not decide the case based on "implicit biases." As we discussed in jury selection, everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, “implicit biases,” that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and to resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases.

Judge Bennett’s instruction goes further than most model jury instructions, which simply tell jurors to determine the facts without bias or prejudice. For example, Maryland’s Criminal Pattern Jury Instructions state: "[Y]ou must consider and decide this case fairly and impartially. You are to perform this duty without bias or prejudice as to any party. You should not be swayed by sympathy, prejudice or public opinion." Some model jury instructions go a bit further and explicitly tell jurors not to be influenced by race, ethnicity, or gender. For example, the criminal jury instructions for the District of Columbia suggest that judges instruct juries as follows: "[Y]ou should determine the facts without prejudice, fear, sympathy, or favoritism. You should not be improperly influenced by anyone’s race, ethnic origin, or gender. Decide the case solely from a fair consideration of the evidence." California's model jury instructions on bias go even further in terms of attempting to educate jurors about stereotypes and implicit bias, providing:

Each one of us has biases about or certain perceptions or stereotypes of other people. We may be aware of some of our biases, though we may not share them with others. We may not be fully aware of some of our other biases.

Our biases often affect how we act, favorably or unfavorably, toward someone. Bias can affect our thoughts, how we remember, what we see and hear, whom we believe or disbelieve, and how we make important decisions.

As jurors you are being asked to make very important decisions in this case. You must not let bias, prejudice, or public opinion influence your decision.

Your verdict must be based solely on the evidence presented. You must carefully evaluate the evidence and resist any urge to reach a verdict that is influenced by bias for or against any party or witness.

So, are instructions like the instruction given by Judge Bennett a good or a bad thing? Well, by way of analogy, let's consider the recent opinion of the Supreme Court of Washington in State v. Allen, 294 P.3d 679 (Wash. 2013), concerning jury instructions regarding the inaccuracy of cross-racial identifications.

In Allen, Bryan Allen was convicted of felony harassment. There was a cross-racial identification in the case, and Allen proposed that the trial court give one of two proposed jury instructions on cross-racial identifications:

The first 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 members of one's own. 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 that overcome any such difficulty of identification.'"...

The second proposed instruction mirrored an instruction endorsed by the American Bar Association, and 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' 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.'"

The court refused Allen's request, and the only evidence that the jury heard about the inaccuracy of cross-racial identifications was through testimony by Officer Bennett, the officer in charge of directing the show-up identification, who, on cross-examination, agreed that he was "aware of studies suggesting that cross[-]racial identifications can be more difficult for people."

After he was convicted, Allen appealed, claiming, inter alia, that the trial court erred by refusing to give either of his two proposed jury instructions. The Supreme Court of Washington responded that

jurisdictions have developed three general approaches to address the problems perceived to be inherent in eyewitness identification testimony. Some have...required or encouraged a particularized instruction to be given....In other jurisdictions, the decision has been left up to the discretion of the trial court....The final approach adopted by some jurisdictions has been to reject outright a requirement for [such] instructions.

The court then found that "[o]ur cases suggest we have aligned somewhere between the second and third categories mentioned above," and easily disposed of Allen's argument. Allen claimed, however, that Washington's

case law...and the cases that preceded and followed it, is outdated. He argue[d] the scientific data regarding the unreliability of eyewitness identification, and of cross-racial eyewitness identification in particular, is now irrefutable.

The court actually credited the studies cited by Allen but ultimately found that

A problem with the studies Allen relies upon is that none of them support the conclusion that the giving of a cautionary cross-racial identificationinstruction solves the purported unreliability of cross-racial eyewitness identification, any more than would cross-examination, expert evidence, or arguments to the jury

I tend to side more with the dissent in Allen written by Justice Wiggins, and this takes me back to Professor Lee's piece. Basically, Justice Wiggins sees some very significant upside to a jury instruction on cross-racial identifications and very little downside: 

The lead opinion is...mistaken in assuming that a jury instruction on the inaccuracy of cross-racial identifications is unhelpful. Jury instructions are in many ways an ideal way to deal with this disparity; the heart of the problem is that jurors believe cross-racial identification is equally or more accurate than same-race identification, when in fact it is far less accurate. Thus, educating jurors is precisely what is called for. Consider the benefits of a jury instruction. First, it costs nothing. Second, jury instructions are focused, concise, and authoritative (jurors hear them from a trial judge, not from a witness called by one side). Third, a jury instruction avoids the problem of dueling experts and eliminates the risk of an expert invading the jury's role or opining on an eyewitness's credibility. Fourth, jurors may be more likely to discuss racial differences and the cross-racial problem in deliberation if bolstered by the credibility of an instruction.
There are benefits beyond the juror box as well. For the courts to recognize that cross-racial eyewitness identification is frequently erroneous would encourage police and prosecutors to approach these identifications cautiously when making charging and investigative decisions....For example, law enforcement personnel might try to find more corroborating evidence where the only link between a suspect and a crime is a cross-racial identification. These “upstream effects,” combined with all the other advantages of a jury instruction, demonstrate the unsoundness of the lead opinion's assumption that a jury instruction is unhelpful.
Once the lead opinion's false assumptions are cleared away, little reason remains to reject the palliative measure proposed by the petitioners. I would embrace a version of the rule adopted in other jurisdictions, holding that a court must give theinstruction where cross-racial eyewitness identification is a central issue in the case, where there is little corroborating evidence, and where the defendant asks for theinstruction....In such cases, there is an impermissible risk of wrongful conviction that is best mitigated by an instruction.

I believe that this should be the philosophy taken by all courts in cases involving racial or cross-racial issues. Basically, the question that a court refusing to give should an instruction should have to answer is: What's the harm? Meanwhile, the harm with not giving such an instruction is manifest. Basically, most people think that they know more about racial issues (and biases) than they actually do.

The classic case in this regard is Tyus v. Urban Search Management, 102 F.3d 256 (7th Cir. 1996). In Tyus, the district court excluded expert testimony on the issue of the effect of an all-white advertising campaign on prospective African-American apartment owners, finding that the average juror could rely upon his common sense to determine the effect. The Seventh Circuit disagreed, concluding that

In this case, Dr. Tarini was prepared to testify about the way an advertising campaign sends a message to its target market and how an all-White campaign affects African–Americans. This kind of social research, which would demonstrate the way one of the most important industries in our country actually operates, would have given the jury a view of the evidence well beyond their everyday experience.



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It is one thing to ask a fact finder to consider the potential of cross racial issues in arriving at a decision. It is quite another for a judge to instruct that "psychological studies support" a party's position. Further, to instruct on areas of "settled science" seems problematic in an adversarial system. Science was at one point well-settled that homosexuality was a mental disorder and that global cooling and warming, and their causes were certainties.

Let's leave the fact finding to juries and not have judges impose the certainty of the cause de jour on juries, even if those judges happen to be correct. Otherwise the slope gets awfully slippery.

Posted by: Joe Heinzmann | Aug 22, 2013 8:18:11 AM

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