SUMMARY OF ARGUMENT

Amicus curiae the Innocence Project respectfully submits this brief in support of appellant Otis Boone. Amicus urges this Court to reverse the Appellate Division’s holding that the trial court did not err in refusing appellant’s requested cross-racial identification instruction and, on that basis, to vacate appellant’s conviction.

In support of Boone’s appeal, amicus recounts for the Court a number of illustrative cases in which defendants were convicted on the basis of cross-racial identifications – often by more than one witness – and later exonerated in light of DNA evidence. These cases, representing just a small sample of wrongful convictions occurring under such circumstances, demonstrate both the risk of erroneous eyewitness identifications generally, as well as the particular risk of misidentification where the witness and defendant are of different races.

Extensive recent scientific research has established the existence of the “cross-race effect.”1 People are better able to recall the face of a person of the same race than that of someone of another race. See, e.g., Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 PSYCHOL., PUB. POL’Y, & L. 3, 15 (2001). Many courts, including this one, have recognized and sought to minimize this particular risk presented by cross-racial identifications. Some have endorsed an instruction to aid jurors in their deliberations by advising them of the existence of the cross-race effect. As this Court is aware, New York’s Model Criminal Jury Instructions contain such a charge, although trial courts are not presently required to include it.

Recently, the Supreme Judicial Court of Massachusetts reviewed the extensive scientific literature on the subject, as well as the pros and cons of requiring trial courts to give a cross-race effect jury instruction upon request. The Court held that an instruction must be given unless the parties agree otherwise. Commonwealth v. Bastaldo, 32 N.E.3d 873, 877-83 (Mass. 2015) (requiring a cross-racial identification instruction “unless the parties agree that there was no cross-racial identification”). The Court also considered whether the decision to provide the instruction should first be subject to the trial judge’s determination that there was in fact a cross-racial eyewitness identification. The Court held that it should not, because “differences in race based on facial appearance lie in the eye of the beholder,” and are best left to the jury as factfinder. Id. at 883. As the Bastaldo Court recognized, an appropriately tailored instruction, apprising the jury of the problems associated with cross-racial identifications can be implemented easily and without countervailing risks to the integrity of the prosecution. Amicus urges the Court to join the Massachusetts Supreme Judicial Court in requiring a cross-racial identification charge in all cases, upon request.

Summary

The Innocence Project, acting as a friend of the court, supports Otis Boone's appeal. The organization requests that this Court overturn the Appellate Division's decision. This decision stated that the trial court was correct in not providing a specific instruction about cross-racial identification. The Innocence Project asks the Court to nullify Mr. Boone's conviction based on this point.

To support Mr. Boone's appeal, the Innocence Project presents several cases. In these cases, individuals were convicted based on identifications made by witnesses of a different race, often by multiple witnesses. These individuals were later proven innocent through DNA evidence. These examples show the general risk of mistaken eyewitness identifications, and particularly the higher risk when a witness and a defendant are of different races.

Recent scientific research confirms what is known as the “cross-race effect.” This means that people are better at remembering faces of their own race compared to faces of another race. Many courts, including this one, have acknowledged this specific risk in cross-racial identifications and have tried to reduce it. Some courts have approved a jury instruction to help jurors by informing them about the cross-race effect. New York’s standard criminal jury instructions include such a charge, but trial courts are not currently required to use it.

The Supreme Judicial Court of Massachusetts recently examined scientific studies on this topic. They also considered the benefits and drawbacks of requiring trial courts to give a cross-race effect jury instruction when requested. The Court decided that such an instruction must be given unless all parties involved agree otherwise. This court also considered if a judge should first confirm that a cross-racial identification occurred before giving the instruction. The Court determined this was not necessary, as racial differences in appearance are subjective and best left for the jury to decide. An instruction that correctly informs the jury about the issues with cross-racial identifications can be easily put in place without harming the fairness of the prosecution. The Innocence Project encourages this Court to adopt the Massachusetts Supreme Judicial Court's approach, requiring a cross-racial identification instruction in all cases when requested.

SUMMARY OF ARGUMENT

The Innocence Project, acting as a friend of the court (amicus curiae), supports appellant Otis Boone. The Innocence Project asks this Court to overturn the Appellate Division's decision, which stated that the trial court was correct in not giving a requested instruction about cross-racial identification. The Innocence Project further requests that the Court void Mr. Boone's conviction based on this error.

To support Boone’s appeal, the amicus provides the Court with examples of cases where defendants were convicted based on cross-racial identifications, sometimes by more than one witness, and later found innocent through DNA evidence. These cases are a small representation of wrongful convictions under similar circumstances. They show the general risk of incorrect eyewitness identifications and the specific danger of misidentification when the witness and the defendant are of different races.

Recent scientific research has confirmed the "cross-race effect." This means people are generally better at remembering faces of their own race than faces of a different race. Many courts, including this one, have acknowledged this specific risk related to cross-racial identifications and have tried to reduce it. Some courts have approved of a jury instruction to help jurors in their discussions by telling them about the cross-race effect. New York’s Model Criminal Jury Instructions include such a charge, but trial courts are not currently required to use it.

The Supreme Judicial Court of Massachusetts recently reviewed the extensive scientific information on this topic. It also looked at the advantages and disadvantages of requiring trial courts to give a jury instruction about the cross-race effect when requested. The Court decided that such an instruction must be given unless all parties agree otherwise. The Court also considered if the decision to give the instruction should depend on whether the trial judge first determined that a cross-racial eyewitness identification actually occurred. The Court concluded that it should not, because "differences in race based on facial appearance lie in the eye of the beholder," and these judgments are best left to the jury. As the Massachusetts Court recognized, a carefully written instruction that informs the jury about the issues with cross-racial identifications can be easily put into practice without harming the fairness of the prosecution. The Innocence Project urges this Court to follow the Massachusetts Supreme Judicial Court in requiring a cross-racial identification instruction in all cases, when requested.

Summary

The Innocence Project, acting as a friend of the court, supports Otis Boone. The organization asks this Court to overturn the Appellate Division's decision, which found no error in the trial court's refusal to provide a specific instruction about cross-racial identification. Based on this, the Innocence Project requests that Boone's conviction be dismissed.

To support Boone's appeal, the Innocence Project has presented examples of cases where individuals were convicted based on cross-racial identifications, sometimes by multiple witnesses, and later cleared through DNA evidence. These cases represent only a small portion of the wrongful convictions that occur under such circumstances. They highlight the general risk of incorrect eyewitness identifications, and especially the increased risk of misidentification when the witness and the defendant are of different races.

Recent scientific research has confirmed the "cross-race effect," which means people are better at remembering faces of their own race than faces of another race. Many courts, including this one, have acknowledged this particular risk linked to cross-racial identifications and have tried to reduce it. Some courts have approved instructions to help jurors in their discussions by informing them about the cross-race effect. New York's standard criminal jury instructions include such a charge, but trial courts are not currently required to use it.

The Supreme Judicial Court of Massachusetts recently reviewed extensive scientific information and the pros and cons of requiring trial courts to give a cross-race effect jury instruction when requested. The Court decided that such an instruction must be given unless both parties agree it is not needed. The Court also considered if the trial judge should first decide if a cross-racial eyewitness identification actually occurred before providing the instruction. It concluded this was not necessary because "differences in race based on facial appearance lie in the eye of the beholder" and should be decided by the jury. The Innocence Project encourages this Court to follow the Massachusetts Supreme Judicial Court's lead by requiring a cross-racial identification instruction in all cases when requested.

Summary

The Innocence Project is asking the Court to help Otis Boone. The group wants the Court to change a past decision. That decision said the trial court was right to not teach the jury about how people might make mistakes when identifying someone of a different race. The Innocence Project believes this mistake led to Boone being found guilty. They want his conviction to be overturned.

The group shares stories of people who were found guilty because someone of a different race identified them. Many of these people were later found innocent with DNA evidence. These stories show that people often make mistakes when identifying others, especially when the person is of a different race.

Scientists have found that people remember faces of their own race better than faces of other races. This is called the "cross-race effect." Many courts know about this and try to stop mistakes. Some courts tell juries about this effect to help them make decisions. New York has a teaching for juries about this, but courts do not have to use it.

A court in Massachusetts recently looked at all the science on this topic. They decided that courts must teach juries about the cross-race effect if someone asks for it. This is true unless everyone involved agrees it's not needed. This court also said that it's not up to the judge to decide if a cross-race identification happened. They believe it's up to the jury to figure that out. The Innocence Project wants this Court to do what the Massachusetts court did. They want the Court to make sure juries are always taught about cross-racial identification if someone asks.