New Trial Ordered for Lack of Cross-Racial ID Instruction

MANHATTAN (CN) — A New York appeals court Thursday ordered a new trial for a robbery suspect, finding the trial court erred in declining to instruct a jury on the ramifications of cross-racial misidentifications in the case of a black teenager accused of heisting cellphones from white men.

The New York State Court of Appeals  ordered a new trial for Otis Boone, 19, who was charged with two counts of robbery in the first degree based on separate incidents in Brooklyn in 2011.

The white victims said a black man in a hat stole their cellphones and wielded a knife.

During the charging conference, Boone’s attorneys requested a cross-racial identification charge, noting that “identifications were made by white males of a black male.”

The court declined, and the jury convicted Boone of two counts of robbery in the first degree.

The Appellate Division unanimously modified by reducing Boone’s sentence, but otherwise affirmed the conviction.

On Thursday, the Court of Appeals ruled that in cases in which a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give during final instructions, upon request, a jury charge on the cross-race effect.

The court must instruct the jury to consider whether there is a difference in race between the defendant and the identifying witness, and if so, the jury should consider “(a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.”

The cross-racial identification instruction is not required when there is no dispute about the identity of the perpetrator or if neither party asks for the instruction, Judge Eugene Fahey wrote for the court. Chief Judge DiFiore and Judges Jenny Rivera, Paul Feinman and Peter Tom concurred. Judge Michael Garcia concurred in a separate opinion joined by Judge Leslie Stein. Judge Rowan Wilson did not participate in the ruling.

Citing an amici brief from former judges and prosecutors, Fahey found that “as a society, we do not discuss racial issues easily. Some jurors may deny the existence of the cross-race effect in the misguided belief that it is merely a racist myth … while others may believe in the reality of this effect but be reluctant to discuss it in deliberations for fear of being seen as bigots. That, however, makes an instruction all the more essential.”

Garcia’s concurring opinion agreed that the trial court abused its discretion in denying Boone’s request for a cross-racial identification charge, but added, “the longstanding principle that the decision to deliver a cross-racial identification charge — like any other identification charge — remains in the sound discretion of the trial court.”

Garcia wrote that stripping trial courts of their discretion is an overcorrection: “Mandating the charge — even in cases where it is misleading, irrelevant, or otherwise unwarranted — creates a substantial risk of juror confusion and serves only to hinder, rather than aid, the jury’s critical fact-finding function.”

Garcia concluded: “In this way, the majority’s overinclusive, mandatory-on-request approach needlessly undermines the reliability of valid identification evidence to the detriment of both victims and jurors.”

Boone was represented in oral arguments by Skip Laisure with Appellate Advocates.

Laisure said in a statement: “The court’s decision reflects that there is now a scientific consensus, recognized by courts in other jurisdictions, that witnesses tend to have more difficulty distinguishing between individuals of a race other than their own, than they do between individuals of their own race.”

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