Supreme Judicial Court of Massachusetts Mandates Jury Instruction on Problems With Cross-Racial IDs

On several prior occasions (see, e.g., here and here), I have written on the topic of the problems with cross-racial eyewitness identifications and whether courts should be allowed to issue jury instructions regarding these problems. Despite the literature on these problems,  many courts refuse to give such instructions. Yesterday, however, the Supreme Judicial Court of Massachusetts went in the opposite direction in Commonwealth v. Bastaldo, 2015 WL 3885652 (Mass. 2015).

In Bastaldo, the court concluded that

The existence of the "cross-race effect" (CRE)—that people are generally less accurate at identifying members of other races than they are at identifying members of their own race—has reached a near consensus in the relevant scientific community and has been recognized by courts and scholars alike.

Accordingly, the court concluded that

in criminal trials that commence after the issuance of this opinion, the following instruction should be included when giving the model eyewitness identification instruction, unless all parties agree to its omission:

"If the witness and the person identified appear to be of different races, you should consider that people may have greater difficulty in accurately identifying someone of a different race than someone of their own race."

That said, the court did not mandate a jury instruction in cases of cross-ethnic identification, instead leaving the decision up to the discretion of the trial judge. According to the court,

Ethnicity is generally distinct from race; for instance, a person who identifies as Hispanic may be of any race. Yet, in facial recognition studies, the terms "race" and "ethnicity" are often conflated and used interchangeably; when they are defined separately, ethnicity may refer to "the smaller physical differences that exist within a race, such as with ancestry from Norway versus Greece within Europe, or China versus Japan within Asia, or Nigeria versus Ethiopia within Africa."...From our review of the social science, we are aware of studies that support the conclusion that people are better at recognizing the faces of persons of the same ethnicity than a different ethnicity. But there is not yet a near consensus in the relevant scientific community that people are generally less accurate at recognizing the face of someone of a different ethnicity than the face of someone of their own ethnicity....In Romero,...a non-Hispanic Caucasian male identified a Hispanic male that the trial court determined was also Caucasian. The New Jersey Supreme Court investigated the social science research and concluded that "[s]ocial science research does not tie identification unreliability directly to ethnic differences in the same way that racial differences can affect identification reliability." 

For now, we leave the decision to add ethnicity to the cross-racial instruction in the judge's sound discretion.

-CM