How fair are criminal trials in America? How confident should we be that prosecutors have the right perpetrator and how much weight should be put on eyewitness identification of suspects?
A growing number of states are now instructing their courts to encourage jurors to ask themselves these very questions.
Many studies have exposed the frailties of eyewitness accounts. Researchers at the Innocence Project, for example, conclude that faulty eyewitness identifications have played a role in more than 70% of cases where DNA tests later proved the wrong person had been convicted of a crime. As compelling as it is to watch someone point across a courtroom and declare, “There is the person I saw…” such testimony is notoriously unreliable.
There are a lot of reasons for a witness to innocently misidentify a suspect. They might have experienced extreme stress at the crime scene, only caught a fleeting glance of the criminal, participated in a flawed police lineup or because the witness and the suspects are of a different race.
Now, wait. Before you leap to the conclusion that misidentification must come from inborn racism let your mind consider that it could be something much different.
Follow me here.
If a criminal has an outstanding characteristic, say, a prominent birthmark on the face, a missing limb or is extremely tall they are easier to remember. But if they have regular, unmemorable features it is human nature to not remember them as vividly. And when witness and suspect are of different races psychologists, like Lawrence T. White Ph.D., say “’They all look alike’ to us because we unwittingly look at the wrong things.”
This phenomenon even has a name. Psychologists call it own-race bias or the other-race effect and it’s been demonstrated in dozens of laboratory experiments, according to White. It is not born of racism but rather the inability of any one ethnic group to easily recall the features of someone from a different group.
Faces are not alike. Each tribe has differing characteristics. Blacks, for example, display more variations in skin tones but their hair and eyes are most often dark. Whites, on the other hand, don’t usually have stark differences in skin tone but display more variations in hair and eye color. Let’s take this train of thought one step further.
Clinical psychology professor Gordon Nagayama Hall says people subconsciously categorize themselves as the “in group,” — be they Caucasian, Hispanic, Asian, African-American, etc. — and everyone else as being in the “out group.”
“Research demonstrates that we are better at telling people apart in our own group than in outgroups,” says Nagayama Hall. “Most people in the United States are White, which makes people of color the outgroup. So, most of the time, the people who are mistaken for someone else are people of color.” This underscores the Innocence Project’s finding that a majority of the mid-identification cases were id’s made by Whites against Blacks. Caucasians simply remember they saw a “Black” person but, frequently, not the specifics of the suspect’s face.
This thought process is not exclusive to Whites. Consider what CNN’s black anchorman Don Lemon has said, “You go to Brooklyn, everybody’s got a beard and plaid shirt. They may be able to tell each other apart, but they all look alike to me.”
The only thing that will change this phenomenon, say the scientists, is more intermingling of ethnic groups. The more we interact with each other the less likely it will be that we will have trouble identifying those from our out-group. Only then can we shed the attitude that “they all look alike.”
I explain all this because the public should understand why courts around the country are making changes to how trials are conducted and how jurors are instructed before they go into deliberations.
The Court of Appeals in New York is the latest to tell lower courts they must give the defense an opportunity to present experts who can inform jurors about the inherent problems with cross-race-witness identification. State courts in Hawaii, Massachusetts and New Jersey have already adopted similar rules. And, courts in Washington State and Georgia, along with federal courts in Detroit, Indianapolis and the District of Columbia now allow the trial judge to decide whether to instruct jurors about flaw-filled eyewitness accounts before they adjourn to the deliberation room. Let’s hope other states’ courts follow this trend
Our Pledge of Allegiance states that we are one nation, under God, indivisible with liberty and justice for all. But justice can only be achieved when we admit our cultural frailties and take them into account when passing judgement on others.