Tagged: reliability of eyewitness identification

NY Court of Appeals Addresses Cross-Racial Identification Jury Instruction

As NYLJ reports in an article titled Ex-Judges and Prosecutors Ask to Join Case on Cross-Racial Identification written by Andrew Danney, the NY Court of Appeals, sitting in White Plains courthouse starting noon today through Thursday, is to hear a case addressing jury instruction on cross-racial eyewitness identification and number of members of the New York legal community seek to become amici parties to the case.

As the legal representative for the group stated:

We tell juries everyday that they should scrutinize testimony carefully, so it’s not a great leap to ask a trial judge to tell a jury that they should look at cross-race identifications with special care.


Brady: New Decision Holds Ethical Requirements are Broader Than Constitutional Requirements

In a clear, well-reasoned decision, the DC Court of Appeals has held that a prosecutor’s ethical responsibility to disclose exculpatory evidence is significantly broader than the Brady standard and does not contain a “materiality” requirement. While the decision is binding only on attorneys who practice in DC it will cover many federal prosecutors.

The case came to the court based on a report and recommendation of the Board on Professional Responsibility that had recommended a 30-day suspension for a federal prosecutor who violated Rule 3.8(a) of the DC Rules of Professional Conduct. The charges arose in a felony assault case involving a drive-by shooting where the defendant filed an alibi notice. The issue was the reliability of the identification; significantly, what the prosecutor failed to disclose was that the victim had said after the shooting, at the hospital, was that he did not know who shot him. The first trial ended in a mistrial when the jury could not agree. Although after the first trial a subsequently assigned prosecutor revealed the statement, the second trial ended in a conviction.

Among his various arguments, Kline argued that his ethical obligation was co-extensive with his Brady obligation. The court soundly rejected this argument, and its explanation for why post-conviction materiality cannot be used to judge ethical conduct is notably clear and to the point. The court also surveyed the various conflicting decisions nationwide about whether the two standards are co-extensive. Meanwhile, because of a confusing sentence in the commentary to the DC rule, the court determined not to sanction the prosecutor.

Related Readings:

Professor Gershman Conducts Eye Witness Identification Exercise in Criminal Procedure Class

POST WRITTEN BY: Annmarie Stepancic (’15), Pace Law School

I was part of a fascinating experiment in my Criminal Procedure Class at Pace Law School, which powerfully brought home the dangers of mistaken identification and wrongful conviction. On Thursday, April 24, 2014, class began in its ordinary fashion – a student was called on to discuss the facts and holding in United States v. Wade388 U.S. 218 (1967). About ten minutes into class, we all learned that this was no ordinary criminal procedure class when a man suddenly stormed into the classroom. According to students’ accounts of the event, the man approached the Professor, Professor Bennett Gershman, and shouted, “Hey Gershman, remember me? You fucking failed me last year.” The intruder then pulled out a gun with his right hand (a “black Glock semi-automatic pistol,” according to some students), and stated, possibly two times, “Give me your wallet.” One student stood up, but the man ordered her to sit down. The man ordered everyone in the class to stay seated. The Professor gave up his wallet and the man ran out. The whole event, according to students, lasted anywhere from thirty seconds to a minute and a half.

A Pace Security guard came in moments later. Professor Gershman assured him that everything was OK. Professor Gershman asked the students not to talk to each other and to write down a brief description of what they just observed, including a description of the assailant.

After the students did so, Professor Gershman dimmed the lights, pulled down the screen, and projected a photographic array of males of similar age and facial characteristics to the intruder.   The students were asked to try to identify the intruder from the photos. Prof. Gershman specifically admonished the students that the perpetrator might or might not be in any of the photos.

Here are the results:

  • Photo #1 – 1 student (1%)
  • Photo #2 – 7 students (9%)
  • Photo #3 – 1 student (1%)
  • Photo #4 – 9 students (12%).
  • Photo #5 – 41 students (55%).
  • Photo #6 – 9 students (12%)
  • Six students reported that the assailant’s photo was not present in the array (7%).

The intruder’s photo was photo #5.

After the students made their selections, the “intruder,” was invited in along with the Greenburgh Chief of Police, Chris McEnery, a Pace Law School alum and a wide-ranging mini-symposium on the constitutional, ethical, and policy rules governing eyewitness identifications began. Specifically, the discussion focused on, as Justice Brennan famously observed in the landmark case of United State v. Wade, how

the annals of criminal law are rife with instances of mistaken identification.

A review of the student responses apparently reveals that most of the students got the prominent facts right, but varied on lots of subsidiary details, and that they omitted important facts. Even though the students were shown the photo array approximately five minutes after the event, only 55% correctly identified the perpetrator in the photo array lineup. It is critical to note, of course,  that real eyewitnesses would not be shown a lineup – corporeal or photographic – so quickly after an event, when the event is so fresh in the minds of the observer, as was the case in our class. As social science and scientific research demonstrates, memory retention – particularly the memory of an eyewitness – dissipates over time.