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In a perfect world, there would be a video recording of all crimes from start to finish that clearly identifies every person involved. Because that almost never happens, prosecutors rely heavily on eyewitness identification to determine whether someone committed a crime. While eyewitness accounts are seemingly the perfect way to tell a jury what happened, they have severe negative implications for minoritized defendants.

The problem with witness identification, for all defendants, is that misidentifying someone is incredibly common, contributing to nearly 75 percent of all exonerations based on DNA evidence. But for BIPOC, the problem is worse. Cross-racial identifications are frequently inaccurate because of own-race bias, the proven difficulty to identify facial characteristics in other races; this is likely why 42 percent of wrongful convictions based on misidentifications are cross-racial misidentifications.

Own-Race Bias

In a study determining whether people are better at accurately identifying those of their own race, White, Black, and Hispanic clerks at a convenience store in El Paso, Texas, were asked to interact with White, Black, and Hispanic customers. Two or three hours later, the clerks were tasked with identifying the customers from a photo lineup. White clerks identified White customers most accurately, Black clerks identified Black customers most accurately, and Hispanic clerks identified Hispanic customers most accurately.

Before you continue reading, watch this video explaining how own-race bias occurs in your brain:

This study validates what is already a wide-held belief in the mainstream science community: own-race bias is real. Unfortunately, the idea of own-race bias does not always extend to the jury deliberation room.

Johnny Tall Bear

This was the case for Johnny Tall Bear.

On October 3, 1991, the body of a transient man known as “Pops” was found on a pile of garbage by an abandoned building in Oklahoma City. Pops had been stabbed and beaten, and the pockets of his pants were inside out.

A man named Floyd Lewis claimed that he witnessed an altercation between three men at that location. Although he was the length of a football field away from the fight, Lewis said “he knew it was Tall Bear.” Tall Bear was convicted of first-degree murder and sentenced to life without the possibility of parole.

When the Innocence Project took on Tall Bear’s case, DNA testing was their first priority. They had the blood stains that were found on Pop’s pockets and on bags that police believe were used to stop Pop’s bleeding tested. A male DNA sample that did not belong to Pops was recovered, but it was not consistent with Tall Bear’s DNA. After serving 26 years, he was freed in 2018 based on this evidence. Tall Bear, a member of the Iowa Tribe, was one of the first indigenous people to be exonerated with DNA evidence.

Jury Instructions

Cross-racial misidentifications have not been properly remedied because many people in the legal community believe safeguards like cross-examination are successful, despite statistics showing otherwise.

“Critical race theorists, however, argue that this response not only fails to address own-race bias, but actually contributes to racial discrimination by reinforcing ordinariness–the idea that racism and racial discrimination are ordinary experiences, not abnormalities,” Bryan Scott Ryan wrote in an article for the Washington University Jurisprudence Review.

Ryan suggests requiring a jury instruction in all cases where a cross-racial witness identification is present that addresses its deficiencies.

“To effectively alert and sensitize the jury to this concern, an optimal jury instruction should: (1) be mandatory in all situations in which a cross-racial identification is at issue; (2) use objective language; and (3) be administered separate from the general eyewitness testimony instruction and prior to the testimony which includes the cross-racial identification,” Ryan wrote.”

Otis Boone

The capability of a jury instruction like the one Ryan poses was made evident in the re-trial of Otis Boone.

When Boone was only 19-years-old, he was convicted of two robberies that took place in Brooklyn, New York, in 2011. The two victims, who were White, reported that a Black man wielding a knife stole their cell phones, and they both picked Boone out of a lineup. He was convicted on the cross-racial identifications alone and sentenced to 25 years in prison, despite evidence that he was more than a mile away from the robberies five minutes before they occurred.

Boone’s appeal made it to to the New York Court of Appeals—the state’s highest court—where a majority of the judges ruled that the jury should have been made aware of the research proving that cross-racial identifications are unreliable. Boone was granted a new trial, and he was acquitted after being wrongfully incarcerated for seven years.

Cross-racial identifications cause wrongful convictions but they also cause racial disparity throughout the entire criminal justice system. Washington’s Task Force on Race and the Criminal Justice System documented the ripple effect of cross-racial identifications.

These were their broad findings: “The Task Force identified cross-racial misidentification as an important aspect of the problem. This is true for numerous reasons. First, research has indicated that White persons are more susceptible to committing cross-racial misidentification than racial minorities. Second, members of racial minority groups are more susceptible to cross-racial misidentification because potential witnesses to crimes are more likely to be White. Third, once misidentified, racial minorities in Washington also face disparately higher rates of arrest, charging, and conviction, and also receive harsher sentences, even after controlling for legally relevant factors. It should not be surprising, then, that African American men are disproportionately represented among exonerees as compared to the incarcerated population in general.”

These findings are universally relevant. Without addressing the disparate impact of cross-racial identifications, BIPOC will continue to be more vulnerable to wrongful convictions.

Action Steps:

  1. Knowing that identifications—cross racial or not—are often inaccurate, do not perpetuate them. If selected for jury duty, bring the perspective that witness identifications are often invalid.
  2. Share the research with others. A study showed that only 58 percent of college students believe it is harder to identify someone of another race.