EvidenceProf Blog

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

Friday, April 21, 2017

Court of Appeals of Minnesota Rejects Use of Jury Instruction on Problems w/Cross-Racial Identifications

Bearing out the underlying findings of these studies, cross-racial misidentifications have surfaced in a large number of wrongful convictions. The single greatest cause of wrongful convictions in the United States is eyewitness misidentification. In a 2000 study, Innocence Project founders Barry Scheck and Peter Neufeld, along with columnist Jim Dwyer, found that 82% of wrongful convictions included mistaken eyewitness identifications. Of those mistaken identifications, 44% were Caucasian individuals erroneously identifying an innocent African-American defendant as the perpetrator.

Cross-racial misidentifications that lead to wrongful convictions can occur because people find it difficult to recognize physical traits with which they are unfamiliar. Valena Beety, What the Brain Saw: The Case of Trayvon Martin and the Need for Eyewitness Identification Reform, 90 Denv. U. L. Rev. 331, 342 (2012).

In response to the finding that mistaken cross-racial misidentifications are a leading cause of wrongful convictions, courts have done three things: (1) allowed expert testimony on the problems with cross-racial identifications; (2) given jury instructions on the problems with cross-racial identifications; or (3) nothing. With its recent opinion in State v. Thomas, 890 N.W.2d 413 (Minn.App. 2017), the Court of Appeals of Minnesota chose option #3. But that might change if and when the case reaches the Supreme Court of Minnesota.

In Thomas, Justin Thomas an African-Amercan man, was charged with being a felon in possession of a firearm and of first-degree aggravated robbery after allegedly robbing J.S., a Caucasian man, at gunpoint. J.S. later identified Thomas as his robber. At trial, Thomas wanted the judge to give a jury instruction asking the jury to

consider "whether [J.S.'s and appellant's] difference of race affected the accuracy of [J.S.'s] identification [of appellant]." The district court declined to add this language on the ground that the Minnesota Supreme Court has not modified CRIMJIG 3.19 to include cross-racial identification as a factor in evaluating identification testimony

In addressing Thomas's ensuing appeal, the Court of Appeals of Minnesota noted that the Supreme Court of Minnesota had already rejected option #1 -- expert testimony on cross-racial identifications -- in State v. Miles, 585 N.W.2d 368 (Minn. 1998). That said, the court noted that Thomas had pointed to two cases from other jurisdictions -- Commonwealth v. Gomes, 470 Mass. 352, 22 N.E.3d 897 (2015), and State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011) -- where courts had approved option #2: jury instructions on the problems with cross-racial identifications.

The Court of Appeals of Minnesota then noted that both of these opinions came after extensive studies. For instance, 

Henderson followed a remand during which a special master "presided over a hearing that probed testimony by seven experts and produced more than 2,000 pages of transcripts along with hundreds of scientific studies” in order to “evaluate scientific and other evidence about eyewitness identifications."...The New Jersey Supreme Court adopted the report in large part,...and observed that "[c]ross-racial recognition continues to be a factor that can affect the reliability of an identification."

Thus allowed the Court of Appeals of Minnesota to conclude that

Because both Gomes and Henderson were decided following and in light of intensive scientific studies mandated by the supreme courts of Massachusetts and New Jersey respectively, they are clearly distinguishable: Minnesota has no such body of evidence on which to rely and, as the district court noted, the Minnesota Supreme Court "has not modified the jury instruction [i.e., CRIMJIG 3.19] to take those things [e.g. cross-racial identification] into account."

The court is correct in its first argument, but is the argument meaningful? If scientific studies in Massachusetts and New Jersey showed that cross-racial identifications are more problematic than same race identifications, is there any reason to believe that a study in Minnesota would produce a different result?

The court was also correct with its second argument, and that creates the possibility of sea change in Minnesota law should the Thomas case reach the Supreme Court of Minnesota. As the Court of Appeals noted,

The day may come when our supreme court wishes to endorse a jury instruction regarding cross-racial identification and reassess its decisions regarding the admissibility of expert testimony on eyewitness identification. But that is not our role. "[T]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court."



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It's worth noting that, in Perry v. NH, SCOTUS specifically referred to a special jury instruction as an important tool for trial courts in eyewitness ID cases. https://www.law.cornell.edu/supremecourt/text/10-8974

Posted by: Richard Guerriero | Apr 24, 2017 4:55:15 AM

Colin -

This is a few days old now, but, as a Minnesota attorney with a healthy dose of state appellate experience, I thought I'd note that the Minnesota Court of Appeals is notoriously conservative in breaking new ground. For better or worse, it prefers to punt to the Minnesota Supreme Court, which is also fairly conservative in that regard, though not nearly as much so.

Posted by: Anonymous | Apr 26, 2017 5:06:21 AM

I don't for a minute imagine the 'hundreds of scientific studies' were limited to New Jersey and/or Massachusetts... so I'm not sure how the court has come to the conclusion that they do not have this same body of research on which to rely. Sounds like a grave misunderstanding of science.

Posted by: Cupcake | Apr 28, 2017 10:52:12 AM

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