Anthony M. Salerno

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Anthony M. Salerno

Attorney At Law

Cross-racial identification still a problem in the courts

On Behalf of | May 15, 2018 | Criminal Defense

Defending clients facing criminal charges requires a skilled attorney who is both educated in the law and also knows their way around a courtroom by working with the judge and jury. This combination of knowledge and experience is particularly on display with a lawyer who must protect clients from the incorrect or false identification.

A recent article in the American Bar Association illustrates this point using an episode of television’s The Office as an example. The plot of the episode was that coworkers couldn’t remember if the character Stanley played by African-American actor Leslie David Baker had a moustache or was clean-shaven. The outcome was that he did have a moustache, but the other characters were split 50-50 on remembering that he did have one, and had it for the entire run of the series.

Racial bias is a legal issue

While this was supposed to be a funny plot point, many criminal defense attorneys are well aware of the issues surrounding cross-racial identification for identifying defendants. A judge will sometimes explain this issue to jurors. If the court does not instruct the jury, a defense attorney can educate jurors as part of their defense.

A history of scientific proof

Since the first study in 1914 addressing the “cross-race effect”, there have many scientific studies conducted on racial identification. This concept of racial identification and false ID is a recurring theme that is now supported by technological and scientific advances.

There have even been studies of infants that prove that this is not learned behavior, but instead a phenomenon where the infants scan the faces of other races differently, finding preference in own-race faces versus other-race faces.

Backed up by DNA testing

The Innocence Project’s finding in 2008 backs this up, pointing out that there were 216 wrongful convictions overturned by DNA testing and that 66 of those cases were attributed to the unreliability of cross-racial identification where the witnesses and the defendants were of different racial backgrounds.

Eyewitness accounts can be challenged

Eyewitnesses are often the cornerstone of a conviction. But the fact is that witnesses may not be able to accurately identify the defendant, particularly in a formal courtroom setting or in a line-up. With this in mind, it is important for defendants to remember that looks can be deceiving and to not panic if there is a witness.