The Counsellor's Corner

Is one’s color a factor in making an identification of an individual in a criminal case. The Supreme Court of the State of New Jersey thinks so, as late last month they ruled that in mixed race criminal cases, juries should be informed that it is more difficult for an individual to identify someone of another race as opposed to someone of his own race. This concept brings back the old “they all look alike,” stereo-type. In effect the court is saying that white people are better able to identify white people and black people are better able to identify black people. In this case the prosecution argued that there was no evidence to prove that witnesses have difficulty with the concept of cross-color identification, however, the State Supreme Court rejected that argument indicating that there are numerous scientific studies which suggest this is so and that most jurisdictions which have considered this question have come down on the side of mixed race identification being more difficult.

This was a rape case in which a black man named McKinley Cromedy was alleged to have raped a white Rutger’s University student who identified Mr. Cromedy as her attacker.

Interestingly, the alleged victim had not picked Mr. Cromedy out of the photo identification she was shown shortly after the rape, however, eight months later she saw Mr. Cromedy on a street corner and called the police. At that time she identified him as the rapist.

Unfortunately, there was no forensic evidence as to the issue of identification. The prosecution was not able to link Mr. Cromedy to the rape through blood or sperm samples, nor through fingerprints.

The Supreme Court concluded that the jury should have been given a special “cross-racial jury instruction” which would highlight for jurors the difficulty in identifying people of other races.

This instruction was not given at trial, Mr. Cromedy was convicted and the conviction was reversed. The Supreme Court instructed the trial court upon re-trial, to advise the jury that “cross-racial identification can affect one’s ability to identify an individual of a different race.”

I’ve gone back and forth over this one. I bristle when I hear the “they all look alike” stereo-type, however, if there are scientific studies which indicate that people identify others of their own race more easily than they do those of another race than that would be something to which a jury should pay attention. Alternatively, is an issue being created here that doesn’t exist? And where does the line get drawn; is this just a black/white issue or does it include Hispanics and Asian Americans as well?

Should the special jury instruction be given only in criminal cases or should it be given in civil, i.e., personal injury cases too where money damages are being sought? If this is a scientifically viable concept, I would think that a cautionary instruction would be appropriate in all judicial proceedings. If not, it should not be given in any.

This is an extremely interesting issue about which it is important that we have some resolution on a federal level. I would hate to think that different states will handle this matter differently and that if you are put on trial in one state you will get this instruction while if in another state this instruction won’t be given. There is so much at stake in a jury trial that it should not come down to state by state policy on this issue.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues.