2017 NY Slip Op 08713
Court for the Trial of Impeach...2017Background
- Two separate 2011 Brooklyn robberies where each victim (white males) identified Otis Boone (a black male) in six-person lineups; no physical evidence linked Boone to the crimes.
- At trial defense requested a jury instruction on cross-racial identification; trial court denied the request because there was no expert testimony or cross-examination about reliability.
- Jury convicted Boone of two counts of first-degree robbery; the Appellate Division affirmed (modified sentence); leave to appeal to the Court of Appeals was granted.
- The Court of Appeals reviewed scientific literature establishing the cross-race effect (own-race bias) and evidence that eyewitness misidentifications are a leading cause of wrongful convictions.
- The Court held that when identification is in issue and the witness and defendant appear to be of different races, a cross-racial identification charge must be given upon request; expert testimony is not a prerequisite.
- The Court reversed and ordered a new trial; Justice Garcia concurred in result but would have left the decision to trial court discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a jury charge on cross-racial identification is required when identification is in issue and witness and defendant appear to be of different races | The People argued expert testimony is a preferable substitute and that instruction need not be mandatory | Boone argued a requested charge must be given because jurors may not understand cross-race reliability issues | Court: Upon request, trial court must give a cross-racial identification charge in such cases (unless not requested or identity not in dispute) |
| Whether expert testimony is a precondition to giving the charge | People contended expert testimony could render the charge unnecessary | Boone argued expert testimony is not required and the charge should be given upon request | Court: Expert testimony is not required; charge may be given without it and expert evidence remains discretionary |
| Whether cross-examination about racial identification is a prerequisite to the charge | People/trial court relied on lack of cross-examination to deny instruction | Defense said cross-examination is often ineffective because eyewitnesses may be sincerely confident despite error | Court: Denial based on absence of cross-examination was error; charge should be based on the fact of cross-racial ID, not whether counsel cross-examined |
| Preservation/harmless-error and scope of mandatory rule | People argued defendant failed to preserve or any error was harmless | Defendant argued denial was reversible error given single-witness identifications and no corroboration | Court: Error was not harmless here; reversed for new trial. The Court requires the charge upon request but excepts cases where identity is undisputed or parties agree omission |
Key Cases Cited
- People v. Whalen, 59 N.Y.2d 273 (N.Y. 1983) (discusses trial judge discretion on expanded identification instructions and recommends giving them as better practice)
- People v. Knight, 87 N.Y.2d 873 (N.Y. 1995) (reaffirms trial court discretion in identification-charge decisions)
- State v. Henderson, 208 N.J. 208 (N.J. 2011) (New Jersey Supreme Court required cross-racial ID instruction when in issue and adopted enhanced eyewitness guidance)
- Commonwealth v. Bastaldo, 472 Mass. 16 (Mass. 2015) (Massachusetts SJC required instruction on cross-race effect unless parties agreed to omission)
- People v. Abney, 13 N.Y.3d 251 (N.Y. 2009) (addressed admissibility/Frye hearing for expert testimony on identification accuracy)
- People v. Boyer, 6 N.Y.3d 427 (N.Y. 2006) (discusses confirmatory identifications and when identity may be deemed not at issue)