Chapter 3
Eyewitness Identifications
3.1 Scope of Chapter 3-1
3.2 Overview of Risks of Misidentification 3-2
A. Nature of the Problem
B. Factors Affecting Eyewitness Identifications
C. Jurors’ Perceptions of Eyewitness Identification
3.3 Cross-Racial Impairment 3-9
A. Empirical Evidence of Cross-Racial Impairment
B. Impact of Cross-Racial Impairment
C. Causes of Cross-Racial Impairment
3.4 Due Process, Right to Counsel, and Rules of Evidence 3-12
A. Due Process
B. Right to Counsel
C. North Carolina Rules of Evidence
3.5 Eyewitness Identification Reform Act 3-18
3.6 Procedures for Challenging Eyewitness 3-19
Identification Evidence
A. Motions to Suppress Pretrial Identifications and
Prevent In-Court Identifications
B. Voir Dire
C. Cross-Examination
D. Expert Testimony
E. Jury Instructions
________________________________________________________________
3.1 Scope of Chapter
This chapter guides attorneys in protecting their clients against misidentifications.
Counsel should ensure that procedures used to identify a client are lawful and insulated
from suggestibility. Chapter 3 reviews the standards on unduly suggestive and thus
unreliable identifications based on the due process clauses in the Fourteenth Amendment
to the U.S. Constitution and article I, section 19 of the North Carolina Constitution, as
well as the additional protections found in the North Carolina Eyewitness Identification
Reform Act, G.S. 15A-284.50 through G.S. 15A-284.53, which regulates live lineups and
photo identification procedures. This chapter also addresses the procedures for raising
3-1
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-2
claims of a violation, including the evidentiary showing required, the procedures for
obtaining expert assistance when needed, and the type of relief available.
3.2 Overview of Risks of Misidentification
A. Nature of the Problem
Research and studies. Eyewitness identifications play a major role in the charging and
conviction of criminal defendants, providing the basis for criminal charges against
approximately 77,000 people each year. Gary L. Wells & Elizabeth A. Olson, Eyewitness
Identification: Information Gain from Incriminating and Exonerating Behaviors, 8 J.
EXPERIMENTAL PSYCHOL.: APPLIED 155 (2002).
Scientific research, academic literature, and overturned convictions, however, have raised
concerns about the reliability of eyewitness identifications in general and cross-racial
identifications in particular. See also infra “State guarantee of due process” in § 3.4A,
Due Process (discussing recent cases from the U.S. Court of Appeals for the Fourth
Circuit and state supreme courts reviewing research raising concerns about eyewitness
identification evidence). The U.S. Supreme Court has observed that “the annals of
criminal law are rife with instances of mistaken identification.” United States v. Wade,
388 U.S. 218, 228 (1967); see also Perry v. New Hampshire, 565 U.S. __, 132 S.Ct. 716,
738–39 (2012) (Sotomayor, J., dissenting) (“[A] staggering 76% of the first 250
convictions overturned due to DNA evidence since 1989 involved eyewitness
misidentification.”). Experts believe that “eyewitness error is the leading contributing
factor in wrongful convictions in the United States.” See ELIZABETH F. LOFTUS ET AL.,
EYEWITNESS TESTIMONY: CIVIL AND CRIMINAL § 1-2 (5th ed. 2013) [hereinafter
EYEWITNESS TESTIMONY]; see also EDWARD CONNORS ET AL., NATIONAL INSTITUTE OF
JUSTICE, CONVICTED BY JURIES, EXONERATED BY SCIENCE: CASE STUDIES IN THE USE OF
DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL (1996); C. Ronald Huff et al.,
Guilty Until Proved Innocent, 32 CRIME & DELINQUENCY 518 (1986); Innocence
Project, Facts on Post-Conviction DNA Exonerations
, INNOCENCEPROJECT.ORG (last
visited Sept. 25, 2014).
A review of post-conviction DNA exonerations found that at least 40% of cases in which
the defendant was exonerated as a result of DNA evidence involved cross-racial
eyewitness identifications. Innocence Project, Facts on Post-Conviction DNA
Exonerations, INNOCENCEPROJECT.ORG (last visited Sept. 25, 2014). As discussed in
greater detail below, researchers have found that White eyewitnesses are more likely than
Black eyewitnesses to make erroneous cross-racial identifications and that most cross-
racial identification errors made by White eyewitnesses are false positives—that is, the
erroneous identification of a person as the perpetrator. 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 (2001); see infra § 3.3, Cross-Racial
Impairment.
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Ch. 3: Eyewitness Identifications (Sept. 2014) 3-3
Case study: The role of race in the Shawn Massey case. Below are the reflections of
Duke University School of Law John S. Bradway Professor of Law and Wrongful
Convictions Clinic Co-Director James E. Coleman on the Shawn Massey case:
Shawn Massey spent twelve years in prison for crimes he did not commit, and the hard truth is that
race played a role in this miscarriage of justice. In 1999, a jury wrongfully convicted him of
kidnapping, armed robbery, and breaking and entering based on allegations that in May 1998 he
forced a woman and her children at gunpoint into their Charlotte apartment and took $60 from
them. The adult victim in this case, a White woman, described the perpetrator of the crime as a 5-
foot-9, 180-pound African American male who wore his hair “pulled back from his face and four
braids on the back of his head.” At trial, the victim clarified that she meant to describe cornrows.
However, the White police officers and prosecutors handling the case did not understand the
cornrow hairstyle, and this misunderstanding caused them to focus on the wrong suspect, create a
photo lineup with inappropriate fillers, and prosecute an innocent man. If the police officers
investigating the case had been familiar with the cornrow hairstyle or had focused on Mr. Massey’s
appearance before concluding that he was the assailant, they would have discovered that he was
both shorter and slimmer than the perpetrator, did not wear his hair in cornrows, did not have
enough hair for that hairstyle, and should have been excluded as a suspect.
At the time of the offense, Mr. Massey was 26 years-old, working a construction job, and living with
his grandmother. He had been charged with petty offenses, but had never been to prison. I became
involved with his case through my work in Duke Law School’s Wrongful Conviction Clinic. We decided
to investigate his claim of innocence because the only evidence in the case was the victim’s
eyewitness identification of Mr. Massey, and her identification was always conditioned on the
assailant having the cornrow hairstyle. Because of the general unreliability of eyewitness
identification evidence, we believe that any prosecution based entirely on eyewitness identification
evidence merits an innocence investigation.
In this case, the misidentification problem arose when the victim was shown a photo lineup including
Mr. Massey and a number of fillers. Neither Mr. Massey nor the fillers wore their hair in cornrows. In
the photo shown to the victim, Mr. Massey’s hair was very short. Asked if she saw the assailant in
the six- photograph lineup, the victim told police that Mr. Massey looked most like the man, except
that Mr. Massey did not have braids and the assailant’s hair was longer. This kind of relative
judgment is typical in cases of misidentification. Because Mr. Massey’s hair was not in cornrows,
however, the victim stated that she couldn’t be sure of her identification unless she saw Mr. Massey
in person.
The first time the victim saw Mr. Massey in person was in court. Just before the trial started, she told
the prosecutor that she had doubts about her identification, both because the defendant’s hair was
not in cornrows and because he appeared smaller than her attacker. Mr. Massey’s trial attorney was
not informed of the victim’s eleventh-hour doubts; we uncovered this Brady violation during our
innocence investigation. The only person who consistently maintained that Mr. Massey was the
perpetrator was the investigating officer, a White detective who relied exclusively upon an alleged
statement by Mr. Massey’s friend that Mr. Massey wore his hair “pulled back and 4 or 5 braids on
the back of his head.” At trial, however, this friend denied making such a statement, and denied that
Mr. Massey wore braids or that his hair was long enough to braid. Mr. Massey’s friends and family
members uniformly testified that he had never worn his hair in cornrows or long enough to braid,
but the statements did not persuade the jury.
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Ch. 3: Eyewitness Identifications (Sept. 2014) 3-4
While investigating the case, we discovered seven photographs of Mr. Massey in the District
Attorney’s files, one of which was taken in March 1998, nine weeks before the crime. The seven
photographs were taken over a nine-year period. In all of the photos, including the one taken in
March 1998, Mr. Massey’s hair was very short. We showed these photographs to professional
barbers familiar with African American hairstyles, who all agreed that Mr. Massey could not have
grown his hair long enough to wear cornrows by the time of the offense. At the time of Mr. Massey’s
prosecution, police and prosecutors did not appreciate the significance of these photographs
because they were not familiar with the cornrow hairstyle; as a result, they did not disclose the
photographs to the defense. Until the victim testified at trial, the police and prosecutor assumed
that cornrows were worn only on the back of the head and neck, and therefore concluded that
photographs showing only the front of Mr. Massey’s head did not exclude him as a suspect.
At the conclusion of our investigation, we sent a letter to the Mecklenburg County District Attorney
laying out the evidentiary basis of Mr. Massey’s claim of innocence, along with a description of the
Brady violations we uncovered. We included the photograph of Mr. Massey with short hair taken in
March 1998, prior to the offense, along with the opinions of professional barbers familiar with
African American hairstyles. In response to this evidence, District Attorney Peter Gilchrist filed an ex
parte motion to vacate the conviction and dismiss the charges, which was granted by a superior
court judge. Mr. Massey was released in 2010, approximately two years before the expiration of his
sentence.
This was a case of cross-racial identification, and race played an important role in the wrongful
conviction of Shawn Massey, beginning with the police and prosecutor’s misinterpretation of the
witness’s description of the perpetrator. This misinterpretation illustrates the importance of
obtaining an accurate description of the assailant from the very outset and making sure one
understands what is being described. Prompt investigation of identification procedures also provides
counsel with an opportunity to clarify any confusion or misunderstanding on the part of the police or
prosecutor, or to litigate pretrial the admissibility of a questionable identification. If the issue is not
raised until trial, jurors likely will see the dispute as one involving only the credibility of witnesses,
and, as some studies have shown, the race of a witness may affect jurors’ perceptions of whether
the witness is telling the truth. In Mr. Massey’s case, the jurors chose to believe the White police
officers and not the Black witnesses who all testified Mr. Massey did not wear braids and did not
have hair long enough to braid.
When the introduction of a flawed identification can’t be avoided, defenders should emphasize not
only the problems with cross-racial identification, but also specific contextual factors that may make
the witness identification less reliable. For example, in this case, opinions from professional barbers
familiar with African American hairstyles could have been introduced as evidence supporting Mr.
Massey’s claim that his hair could not have been worn in cornrows at the time of the offense.
Without such information, jurors are often misled by the common but mistaken belief that a victim
never forgets the face of his or her attacker.
Mr. Massey’s experience also underscores the recommendation of scholar Elizabeth Loftus, that
whenever possible, officers of the same race as the suspect should be involved in identification
procedures. If an African American police officer had constructed the lineup in this case or been part
of the investigation, he or she probably would have been familiar with the cornrow hairstyle and Mr.
Massey might never have been wrongfully convicted. If the White police officers or prosecutor had
queried the victim about her description, Mr. Massey also might never have been convicted. These
are flaws that can be fixed or, at a minimum, raised early in the case by the defense attorney.
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-5
B. Factors Affecting Eyewitness Identifications
Assuming that witnesses for the most part are earnestly trying to construct an accurate
account of a past event, why do eyewitness errors occur and why do they lead to
wrongful convictions? This section discusses the causes of eyewitness errors, while
subsection C, below, discusses jury perceptions of eyewitness testimony.
Generally. Researchers have concluded that eyewitness mistakes generally result from
the “normal and natural processes that occur whenever human beings attempt to acquire,
retain, and retrieve information.” EYEWITNESS TESTIMONY at § 2-1. Some studies suggest
that because of these natural processes eyewitnesses make correct identifications only
50% of the time. BRIAN L. CUTLER & STEVEN D. PENROD, MISTAKEN IDENTIFICATION 218
(1995) [hereinafter MISTAKEN IDENTIFICATION].
Factors affecting the accuracy of eyewitness identification fall into three broad
categories: problems of acquisition, problems of retention, and problems of retrieval.
EYEWITNESS TESTIMONY at § 2-2. Familiarity with these factors may assist counsel in
assessing the possibility of a misidentification and preparing for discussions with expert
witnesses. See infra § 3.6D, Expert Testimony.
Acquisition stage. In the acquisition stage, when an eyewitness memory is formed, the
accuracy of the witness’s perception may be affected by factors such as lighting
conditions, the duration of the event at issue, violence, stress, fear, age, sex, race, and
expectations. EYEWITNESS TESTIMONY at § 2-2. Research has found that cross-racial
eyewitness identifications are particularly susceptible to error at this stage. See infra §
3.3, Cross-Racial Impairment.
Retention stage. The retention stage encompasses the time between when the witness’s
memory was formed and when the witness describes the memory. Memory is malleable.
The accuracy of a memory during the retention stage is influenced by the length of the
retention interval and post-event experiences. For example, a suggestive pretrial
identification procedure, especially one involving cross-racial identification, could distort
an eyewitness’s memory of the actual event. “An eyewitness who is told that it is very
important for her to view a photoarray or lineup immediately is more likely to infer that
the investigators have identified the perpetrator than is an eyewitness who is told that she
could drop by the station whenever it is convenient for her to do so,” and this inference
may exert subtle pressure on the witness to provide a positive identification. MISTAKEN
IDENTIFICATION at 113–14. Similarly, the memory of an eyewitness who is given positive
feedback after participating in an identification procedure may be influenced by such
feedback. Id. at 186–90. One study concluded that in the trials of offenders exonerated by
DNA evidence between 1989 and 2010 that involved eyewitness testimony, 57% of the
eyewitnesses were initially uncertain of their eyewitness identifications, an indicator of
unreliability at the retention stage. BRANDON L. GARRETT, CONVICTING THE INNOCENT:
WHERE CRIMINAL PROSECUTIONS GO WRONG 64 (2011).
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Retrieval stage. In the context of a criminal trial, the retrieval stage refers to the moment
when the witness testifies about the identification. When retrieving events from memory,
eyewitnesses are susceptible to the manner in which information is solicited. Frequent
review of the event, through questioning, identification procedures, and preparation to
testify, may artificially increase witness confidence when retrieving the memory at trial.
MISTAKEN IDENTIFICATION at 186–87. Witness confidence exerts a powerful influence on
jurors, but researchers have found that “eyewitness confidence is not a great or consistent
indicator of eyewitness accuracy.” EYEWITNESS TESTIMONY at § 3-12; see also
MISTAKEN IDENTIFICATION at 95; Siegfried Ludwig Sporer et al., Choosing, Confidence,
and Accuracy: A Meta-Analysis of the Confidence/Accuracy Relation in Eyewitness
Identification Studies, 118 PSYCHOL. BULL. 315 (1995); Neil Vidmar et al., Rethinking
Reliance on Eyewitness Confidence, 94 JUDICATURE 16 (2010).
Illustration: The wrongful conviction of Ronald Cotton illustrates the problems that may
arise with the acquisition, retention, and retrieval stages of eyewitness identifications.
Ronald Cotton was convicted of the rape of Jennifer Thompson in Burlington, North
Carolina and sentenced to life plus 54 years based on Thompson’s eyewitness
identification. Ronald Cotton served 10.5 years in prison before he was exonerated by
DNA evidence. Jennifer Thompson, a White woman, made a cross-racial identification of
Ronald Cotton, a Black man. Ms. Thompson later observed that she “studied every single
detail on the rapist’s face . . . [and] was going to make sure he was put in prison.”
Jennifer Thompson, I Was Certain, But I Was Wrong, N.Y.
TIMES, June 18, 2000. In the
time between the crime and the trial of Mr. Cotton, Ms. Thompson grew more and more
confident in her mistaken identification. She reflected that, when she saw Ronald Cotton
in a photo array, she was “completely confident” that he was the assailant; and when she
picked him out of a lineup, she was “sure . . . [she] had picked the right guy.” Id.
However, her confidence did not correspond with accuracy. “From description, to
creating an Identikit, to reviewing a photo array, to identifying the wrong man in a lineup
and in court—each step unconsciously became a process of picking the individual most
resembling the prior step, not most resembling the perpetrator.” Joseph F. Savage Jr. &
James P. Devendorf, Conviction After Misidentification: Are Jury Instructions a
Solution?, THE CHAMPION, June 2011, at 30, n.7 (discussing factors contributing to
Jennifer Thompson’s misidentification of Ronald Cotton).
Estimator and system variables. Variables that affect eyewitness identifications can be
categorized as either “estimator” or “system” variables. See Gary L. Wells, Applied
Eyewitness Testimony Research: System Variables and Estimator Variables, 36 J.
PERSONALITY & SOC. PSYCHOL. 1546 (1978) (using these categories for the first time).
Familiarity with these variables may assist counsel in assessing the identification and
discussing it with an expert. Additionally, counsel may use these variables to structure
cross-examination in order to show how a given variable, such as the presence of a gun,
affected the reliability of eyewitness testimony.
Some variables that bear on the accuracy of eyewitness identifications are within the
control of the criminal justice system while others are not. Estimator variables occur
before the case enters the criminal justice system and include factors such as: the lighting
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-7
at the time of the event, the duration of the witness’s exposure to the perpetrator, and the
race of the witness and perpetrator. In contrast, system variables are or may be within the
control of the criminal justice system, such as the construction of a lineup, the
questioning of the eyewitness, and the method in which the lineup is presented. Examples
of system and estimator variables are as follows. (The list is reproduced verbatim from
Joseph F. Savage & James P. Devendorf, Conviction After Misidentification: Are Jury
Instructions a Solution?, THE CHAMPION, June 2011, at 30, 31, except that examples of
variables that have been added are set off in brackets.)
1. Wording of questions: The wording of questions posed to an eyewitness can affect the
witness’s testimony about an event. [For example, if an eyewitness is asked how
many minutes she was able to observe the assailant, she may be more likely to
estimate that the event took a matter of minutes, rather than seconds.]
2. Lineup instructions: The instructions given to the witness at a lineup can affect the
witness’s willingness to make an identification. [For example, studies have shown
that instructions implying that the suspect is in fact in the photo array “increas[e] the
likelihood that the eyewitness will make a positive—though not necessarily correct—
identification.” MISTAKEN IDENTIFICATION at 115–23.]
3. Confidence malleability: Factors unrelated to identification accuracy can influence a
witness’s confidence. [For example, a witness’s confidence may rise when she is told
that another witness has identified the same person. MISTAKEN IDENTIFICATION at
186–90.]
4. Mugshot-induced bias: Exposure to mugshots of a suspect increases the likelihood
that the witness will later choose that suspect in a lineup.
5. Post-event information: Testimony of eyewitnesses about an event often reflects not
only what they actually saw but information they obtained after the event.
6. Child witness suggestibility: Young children are more vulnerable than adults to
interviewer suggestion, peer pressures, and other social influences.
7. Attitudes and expectations: A witness’s perception and memory of an event may be
affected by his or her attitudes and expectations. [For example, if a person is attacked
in the dark in an area primarily frequented by Latinos, he or she may be more likely
to believe that his or her attacker was Latino.]
8. Hypnotic suggestibility: Hypnosis increases suggestibility to leading and misleading
questions.
9. Alcohol intoxication: Alcohol intoxication impairs an eyewitness’s later ability to
recall persons and events.
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-8
10. Cross-race bias: Eyewitnesses are more accurate when identifying members of their
own race than members of other races.
11. Weapon focus: The presence of a weapon impairs an eyewitness’s ability to
accurately identify the perpetrator’s face.
12. Accuracy-confidence correlation: A witness’s confidence is not a good predictor of
his or her identification accuracy.
13. Forgetting curve: The rate of memory loss for an event is greatest right after the
event and then levels off over time.
14. Exposure time: The less time an eyewitness has to observe an event, the less well he
or she will remember it.
15. Presentation format: Witnesses are more likely to misidentify someone by making a
relative judgment when presented with a simultaneous (as opposed to sequential)
lineup.
16. Unconscious transference: Eyewitnesses sometimes identify as a culprit someone
they have seen in another situation or context.
Defense attorneys can attempt to mitigate the influence of system variables by, for
example, ensuring that law enforcement officers present individuals or photographs to
witnesses sequentially rather than simultaneously. See infra § 3.5, Eyewitness
Identification Reform Act. Additionally, counsel can educate jurors about the impact of
system and estimator variables on the reliability of eyewitness testimony through expert
testimony, cross-examination of eyewitnesses, and jury instructions concerning factors
influencing eyewitness reliability. See infra § 3.6, Procedures for Challenging Eyewitness
Identification Evidence.
C. Jurors’ Perceptions of Eyewitness Identification
Concerns about eyewitness identification, discussed in the preceding section, are
compounded by the weight jurors may give such testimony. Studies have concluded that
jurors tend to overestimate the reliability of eyewitness testimony. See, e.g., Tanja Rapus
Benton et al., Eyewitness Memory is Still Not Common Sense: Comparing Jurors, Judges
and Law Enforcement to Eyewitness Experts, 20 APPLIED COGNITIVE PSYCHOL. 115
(2006); Richard S. Schmechel et al., Beyond the Ken? Testing Jurors’ Understanding of
Eyewitness Reliability Evidence, 46 JURIMETRICS 177 (2006); Perry v. New Hampshire,
___ U.S. ___, ___, 132 S. Ct. 716, 739 (2012) (Sotomayor, J., dissenting) (observing that
“jurors routinely overestimate the accuracy of eyewitness identifications”). In 2004, the
Public Defender Service for the District of Columbia surveyed nearly 1,000 potential
jurors about eyewitness identification. The researchers concluded that the survey
members often underestimated the difficulties eyewitnesses experience in making cross-
racial identifications, the impact of stress on memory, and the ways in which police
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-9
procedures may undermine eyewitness accuracy. Timothy P. O’Toole et al., District of
Columbia Public Defender Survey, THE CHAMPION, Apr. 2005, at 28; see also, Richard S.
Schmechel et al., Beyond the Ken? Testing Jurors’ Understanding of Eyewitness
Reliability Evidence, 46 JURIMETRICS 177 (2006); EYEWITNESS TESTIMONY at § 6-6.
One reason that lay people misunderstand the reliability of eyewitness identification is
that much of what experts now know about memory and eyewitness testimony is counter-
intuitive. For example, even though experts now recognize that eyewitness confidence is
not reliably correlated with accuracy, “it would seem logical that a more certain witness
would be a more accurate one, [and therefore] it would be surprising if jurors understood
the relationship between confidence and accuracy as a matter of common sense.”
Timothy P. O’Toole et al., District of Columbia Public Defender Survey, THE CHAMPION,
Apr. 2005, at 28, 29. As one court observed, “while science has firmly established the
inherent unreliability of human perception and memory, this reality is outside the jury’s
common knowledge, and often contradicts jurors’ commonsense understandings. To a
jury, there is almost nothing more convincing than a live human being who takes the
stand, points a finger at the defendant, and says, ‘That's the one!’” United States v.
Brownlee, 454 F.3d 131, 142 (3d Cir. 2006) (quotations and citations omitted). See also
Phillips v. Allen, 668 F.3d 912, 916 (7th Cir. 2012) (stating that “nothing is obvious about
the psychology of eyewitness identification” and “most people’s intuitions on the subject
of identification are wrong”).
Practice note: Counsel may file a motion in limine requesting the court to preclude the
prosecutor from drawing a correlation between witness confidence and witness accuracy.
See Lisa Steele, Trying Identification Cases: An Outline For Raising Eyewitness ID
Issues, THE CHAMPION, Nov. 2004, at 8.
3.3 Cross-Racial Impairment
A. Empirical Evidence of Cross-Racial Impairment
A cross-racial identification occurs when an eyewitness is asked to identify a person of
another race. The effect of race on the accuracy of eyewitness identification was
considered as early as 1914. See Gustave A. Feingold, The Influence of Environment on
Identification of Persons and Things, 5. J. CRIM. L. & CRIMINOLOGY 39, 50 (1914)
(“other things being equal, individuals of a given race are distinguishable from each other
in proportion to our familiarity, to our contact with the race as a whole”). Researchers
have since identified the phenomenon as own-race bias, cross-race effect, or other-race
effect. 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, 4 (2001). Several studies have evaluated the difficulty of cross-racial identification and
concluded that eyewitnesses are less likely to misidentify a person of their own race than
a person of another race. Radha Natarajan, Racialized Memory and Reliability: Due
Process Applied to Cross-Racial Eyewitness Identifications, 78 N.Y.U. L. REV. 1821,
1822–23 (2003) (concluding that “[w]hile all eyewitness identifications are prone to
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-10
error, cross-racial eyewitness identifications are more often wrong than same-race
identifications”); see also Gary L. Wells & Elizabeth A. Olson, The Other-Race Effect in
Eyewitness Identification: What Do We Do About It?, 7 PSYCHOL. PUB. POL’Y & L. 230,
230 (2001). Some courts, in reliance on such studies, have recognized that cross-racial
identifications raise particular concerns about reliability. See, e.g., State v. Henderson, 27
A.3d 872 (N.J. 2011) (referencing a Report of the Special Master prepared for the case
regarding eyewitness identification science and law, available at www.eyeID.org);
Gonzales v. Thaler, 643 F.3d 425, 432 (5th Cir. 2011); United States v. Jernigan, 492
F.3d 1050, 1054 (9th Cir. 2007).
B. Impact of Cross-Racial Impairment
The cross-racial effect may be stronger when White witnesses attempt to identify Black
subjects. Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69
CORNELL L. REV. 934, 938–39 (1984); MISTAKEN IDENTIFICATION at 104 (reviewing a set
of studies and concluding that “the cross-racial effect appears to be stronger for whites
than for blacks”). But see EYEWITNESS TESTIMONY at § 4-13 (noting that in studies
concerning cross-racial impairment, “the cross-race effects were comparable for black
witnesses and white witnesses”). Among White eyewitnesses, cross-racial impairment
leads more often to false positives (the erroneous identification of a person as the
perpetrator) than to false negatives (the erroneous failure to identify the perpetrator).
James M. Doyle et al., Discounting the Error Costs: Cross-Racial False Alarms in the
Culture of Contemporary Criminal Justice, 7 PSYCHOL. PUB. POL’Y & L. 253, 254
(2001). Studies have suggested that such false positives have risen over time. Id. (citing
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
(2001)).
Among wrongful convictions uncovered by DNA analysis, 36% occurred in cases where
White witnesses mistakenly identified innocent Black defendants. James M. Doyle et al.,
Discounting the Error Costs: Cross-Racial False Alarms in the Culture of Contemporary
Criminal Justice, 7 P
SYCHOL. PUB. POL’Y & L. 253, 253 (2001); see also Innocence
Project, Facts on Post-Conviction DNA Exonerations
, INNOCENCEPROJECT.ORG (last
visited Sept. 25, 2014) (at least 40% of cases in which the defendant was exonerated as a
result of DNA evidence involved cross-racial eyewitness identifications). The impact of
cross-racial impairment may be magnified by the relative representation of people of
color in the criminal justice system compared to their representation on juries. Samuel R.
Sommers & Phoebe C. Ellsworth, White Juror Bias: An Investigation of Prejudice
Against Black Defendants in the American Courtroom, 7 PSYCHOL. PUB. POL’Y & L. 201
(2001).
Case study: State v. Terence Garner. Below are the reflections of attorney Mark
Montgomery on the role of race in the wrongful conviction of Terence Garner. More
information about the case can be found at PBS Frontline: An Ordinary Crime, PBS.ORG
(last visited Sept. 25, 2014).
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-11
In State v. Terence Garner, cross-racial eyewitness identifications played a role in Garner’s wrongful
conviction for robbery, kidnapping, and attempted murder. The case involved two young Black men
with similar names: Terence Garner, who in 1997 was 16 years old and living with his mother in
Goldsboro; and Terrance DeLoach, a 24-year-old man from New Jersey who spent five years in prison
in New York for robbery before moving to Goldsboro where his cousin, Richard Keith Riddick, lived.
On April 25, 1997, Riddick and his acquaintance, Kendrick Henderson, robbed the Quality Finance
Company in Princeton, North Carolina, along with a third man. In the course of the robbery, the third
man shot one of the company employees, Alice Wise, assaulted her boss, Charles Woodard, and
robbed a customer, Bertha Miller. When police officers questioned Henderson, whose fingerprints
were found at the scene, he said that he committed the robbery with Riddick and Riddick’s cousin
from New York, “Terrance,” and provided the address of Terrance DeLoach. When officers were
unable to locate DeLoach, they arrested Terence Garner at a different address. Henderson told them
they had the wrong “Terrance.”
Alice Wise, who lost an eye in the shooting, first identified Terence Garner as the shooter under
suggestive circumstances: Terence Garner was in a jail uniform and shackled to co-defendant
Henderson. At trial, the two White victims, Ms. Wise and Mr. Woodard, identified Terence Garner as
the shooter. In contrast, the lone Black victim, Ms. Miller, testified that she knew Terence Garner
from the community and did not see him at the robbery. Co-defendant Henderson testified that
Terence Garner was not involved; he always maintained that the police had picked up the wrong
“Terrance.” Several of Garner’s friends and relatives testified that Garner was with them at the time
of the robbery. Co-defendant Riddick testified that Terence Garner was the third robber and
received a reduced sentence. Riddick perjured himself at trial by denying that he had a cousin named
“Terrance,” and later recanted his testimony identifying Terence Garner as the shooter.
Terence Garner was found guilty on the basis of eyewitness identifications from Alice Wise and
Charles Woodard and the later recanted testimony of Keith Riddick. He was sentenced to over 25
years in prison. Subsequently, police located Terrance DeLoach, who confessed to being the third
robber and shooter, but later recanted his confession. Terence Garner served nearly four years in
prison. After his case received national attention in a PBS Frontline documentary, prosecutor Tom
Lock consented to a Motion for Appropriate Relief granting Terence Garner a new trial. He then took
a voluntary dismissal and said publicly that he no longer thought Terence Garner was guilty.
C. Causes of Cross-Racial Impairment
Several researchers have sought explanations for cross-racial impairment. June E. Chance
& Alvin G. Goldstein, The Other-Race Effect and Eyewitness Identification, in
PSYCHOLOGICAL ISSUES IN EYEWITNESS IDENTIFICATION 153, 155–56 (1996). Studies
have concluded that cross-racial impairment does not stem from conscious racial
prejudice; witnesses who do not harbor conscious racial prejudice are as likely to make
an erroneous cross-racial identification as those who harbor racial prejudice. Sheri Lynn
Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 CORNELL L. REV. 934,
943–44 (1984).
Some evidence suggests that the extent, frequency, and quality of a witness’s contact
with members of the subject’s race may play a role in the witness’s ability to make
accurate cross-racial identifications. June E. Chance & Alvin G. Goldstein, The Other-
Race Effect and Eyewitness Identification, in PSYCHOLOGICAL ISSUES IN EYEWITNESS
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IDENTIFICATION 153, 158–68 (1996). However, the evidence also suggests that exposure
to members of the other racial group, alone, does not necessarily improve the accuracy of
identifications. Id. at 170–72.
Practice note: Some research indicates that frequent, quality contact with members of
another race may improve cross-racial recognition. See, e.g., id. at 158–68. For example,
a White witness who has Black family members, lives in a predominantly Black
neighborhood, works with a large number of Black colleagues, or has numerous Black
friends, may be more adept at making an eyewitness identification of a Black suspect
than a White witness who has fewer cross-racial interactions. However, other studies
indicate that contact with members of the defendant’s race does not necessarily mitigate
cross-racial impairment because implicit racial biases may be held even by those who
encounter counterexamples to negative racial stereotypes in their daily lives. See id. at
170–72. Counsel therefore may raise the issue of cross-racial impairment in an
appropriate case even if the eyewitness has had substantial interaction with members of
the defendant’s race. In such a case, counsel may want to employ an expert witness who
can testify about the reliability of cross-racial identifications compared to same-race
identifications. June E. Chance & Alvin G. Goldstein, The Other-Race Effect and
Eyewitness Identification, in PSYCHOLOGICAL ISSUES IN EYEWITNESS IDENTIFICATION
153, 170–72 (1996).
3.4 Due Process, Right to Counsel, and Rules of Evidence
Because of concerns about the reliability of eyewitness identification in general, and
cross-racial eyewitness identification in particular, it is important for counsel to be
familiar with legal requirements relevant to the field of eyewitness identifications.
A. Due Process
State and federal guarantees of due process, under the Fourteenth Amendment to the U.S.
Constitution and article I, section 19 of the North Carolina Constitution, protect
defendants from suggestive eyewitness identification procedures that create a substantial
likelihood of irreparable mistaken identification. See Manson v. Brathwaite, 432 U.S. 98
(1977); Neil v. Biggers, 409 U.S. 188 (1972); State v. Harris, 308 N.C. 159 (1983); State
v. Pigott, 320 N.C. 96 (1987); State v. McCraw, 300 N.C. 610 (1980); State v. Breeze,
130 N.C. App. 344 (1998). In reviewing a due process challenge to suggestive
procedures, our courts employ a two step process:
First, the court must determine whether the identification procedures
were impermissibly suggestive. Second, if the procedures were
impermissibly suggestive, the Court must then determine whether the
procedures created a substantial likelihood of irreparable
misidentification.
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Ch. 3: Eyewitness Identifications (Sept. 2014) 3-13
State v. Fowler, 353 N.C. 599 (2001) (citations omitted). North Carolina cases use the
terms “impermissibly suggestive” and “unnecessarily suggestive” interchangeably.
Compare State v. Stowes, ___ N.C. App. ___, 727 S.E.2d 351, 356 (2012) (using
“impermissibly suggestive” terminology), with State v. Jones, 216 N.C. App. 225, 231
(2011) (using “unnecessarily suggestive” terminology). Federal and state courts have
concluded that suggestive pretrial identification procedures that do not result from
government action do not violate a defendant’s due process rights. Perry v. New
Hampshire, 565 U.S. ___, 132 S. Ct. 716 (2012); State v. Fisher, 321 N.C. 19, 24 (1987).
Impermissibly or unnecessarily suggestive. “A procedure is unnecessarily suggestive if
a positive identification is likely to result from factors other than the witness’s own
recollection of the crime.” Satcher v. Pruett, 126 F.3d 561, 566 (4th Cir. 1997). “To
determine whether a pretrial identification procedure is suggestive, the court should
consider: (1) whether the accused is somehow distinguished from others in the line-up or
in a set of photographs; and (2) whether the witness is given some extraneous information
by the police which leads her to identify the accused as the perpetrator of the offense.”
State v. Rainey, 198 N.C. App. 427, 435 (2009) (internal quotations omitted).
A lineup or photo array is suggestive if the defendant improperly stands out from the
fillers. See, e.g., State v. Pigott, 320 N.C. 96 (1987) (photo array suggestive where 6 of
10 photos unclear and seventh photo showed deputy in uniform). A showup, in which “a
suspect is shown singularly to a witness or witnesses for the purposes of identification,”
is inherently suggestive. State v. Harrison, 169 N.C. App. 257, 262 (2005). This is
because, when considering a suspect presented in a showup, “the witness would likely
assume that the police have brought him to view persons whom they suspected might be
the guilty parties.” State v. Oliver, 302 N.C. 28, 45 (1981) (quotation omitted). See also
State v. Flowers, 318 N.C. 208, 220 (1986); see infra “Suppressing showups” in § 3.6A,
Motions to Suppress Pretrial Identifications and Prevent In-Court Identifications. While
inherently suggestive, courts will look at the totality of the relevant circumstances to
determine whether a showup resulted in a substantial risk of irreparable misidentification
and violated a defendant’s due process rights in an individual case. State v. Turner, 305
N.C. 356, 364 (1982) (“Pretrial show-up identifications . . . , even though suggestive and
unnecessary, are not per se violative of a defendant’s due process rights”). In some cases,
courts have found that a showup’s inherent suggestibility is outweighed by other
indications of the identification’s reliability. See, e.g., State v. Jackson, __ N.C. App. __,
748 S.E.2d 50 (2013).
Substantial likelihood of irreparable misidentification. If it determines that a
procedure was impermissibly suggestive, “a court must look at several factors to
determine if the identification testimony is nevertheless reliable.” Satcher v. Pruett, 126
F.3d 561, 566 (4th Cir. 1997). “Whether there is a substantial likelihood of
misidentification depends upon the totality of the circumstances.” State v. Pigott, 320
N.C. 96, 99 (1987) (photo array unconstitutionally suggestive where over half of the
photos were unclear and one photo showed deputy in uniform). In determining whether a
suggestive procedure resulted in a substantial likelihood of misidentification, the court
generally considers five factors (hereinafter “the Harris factors”):
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• the opportunity to view the perpetrator at the time of the crime;
• the witness’s degree of attention;
• the accuracy of the witness’s prior description of the perpetrator;
• the certainty of the witness at the time of confrontation;
• the time elapsed between the crime and the confrontation.
State v. Harris, 308 N.C. 159 (1983) (citing Neil v. Biggers, 409 U.S. 188 (1972)); see
also State v. Pinchback, 140 N.C. App. 512, 518 (2000) (granting new trial to defendant
where pretrial identification was suggestive and resulted in a substantial likelihood of
misidentification).
In-court identifications may be tainted by unconstitutional pretrial identification
procedures. An impermissibly suggestive pretrial identification procedure may taint an
in-court identification. State v. Flowers, 318 N.C. 208 (1986); State v. Headen, 295 N.C.
437 (1978). Generally, the standard for permitting an in-court identification in the wake
of an unconstitutional pretrial identification is identical to the standard for admitting an
out-of-court identification. “In both cases, the eyewitness testimony will be permitted
unless the pretrial identification procedure was so unnecessarily suggestive as to give rise
to such a substantial likelihood of irreparable misidentification that admitting the
identification testimony would be a denial of due process.” United States v. Clausen, 328
F.3d 708, 713 (3d Cir. 2003). Before allowing an in-court identification that has been
challenged as tainted by an impermissibly suggestive pretrial procedure, the court should
conduct a voir dire of the witness and determine by clear and convincing evidence that
the in-court identification does not result from the pretrial identification, but rather is of
independent origin, meaning that it is based on the witness’s observations of the suspect
at the time of the crime. Flowers, 318 N.C. 208, 216; State v. Freeman, 313 N.C. 539,
545 (1985); State v. Thompson, 303 N.C. 169, 172–73 (1981). A court determines
whether an eyewitness identification is of independent origin by weighing the Harris
factors, discussed above, against the corrupting influence of the suggestive pretrial
identification procedure. State v. Farmer, 177 N.C. App. 710, 717 (2006) (quoting
Flowers, 318 N.C. 208, 220); State v. Pigott, 320 N.C. 96, 100 (1987).
Practice note: According to some scholars, the standard employed by North Carolina
courts to determine whether an identification is admissible despite a suggestive pretrial
identification procedure is based on a misinterpretation of U.S. Supreme Court case law.
Law professor Brandon L. Garrett observes that most states, including North Carolina,
allow in-court identifications following impermissibly suggestive pretrial identification
procedures if the identification has an “independent origin” or “independent source,”
terms that are used interchangeably to indicate that the identification stems from the
witness’s observations of the suspect at the time of the crime rather than from the
suggestive pretrial procedure. See Farmer, 177 N.C. App. 710, 716; State v. Jordan, 49
N.C. App. 561, 565 (1980). Garrett argues that this interpretation conflicts with the one
announced in Manson v. Brathwaite, 432 U.S. 98 (1977), and confuses two lines of U.S.
Supreme Court cases addressing the admissibility of eyewitness identifications. See
Brandon L. Garrett, Eyewitnesses and Exclusion, 65 VAND. L. REV. 451, 478–79 (2012).
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Garrett posits that the applicable standard for evaluating an in-court identification should
be the one articulated in Brathwaite, 388 U.S. 218—that is, whether the pretrial
identification procedure was “unnecessarily suggestive” and, if so, whether the in-court
identification is “nevertheless reliable.” See Brandon L. Garrett, Eyewitnesses and
Exclusion, 65 VAND. L. REV. 451, 468. According to Garrett, the U.S. Supreme Court’s
opinions in Brathwaite, 432 U.S. 98 and United States v. Wade, 388 U.S. 218 (1967),
instruct that the “independent origin” test only applies to challenges based on the Sixth
Amendment right to counsel—that is, where defense counsel was not present during a
post-indictment lineup and the State nevertheless seeks to introduce an identification by
the witness who participated in the uncounseled lineup. United States v. Wade, 388 U.S.
218 (1967); State v. Hunt, 339 N.C. 622, 646–47 (1994). See infra § 3.4B, Right to
Counsel. The “independent origin” inquiry is more appropriate in the context of a Sixth
Amendment challenge, where the constitutional violation is primarily procedural, not
substantive as in a case in which the pretrial identification procedure was unnecessarily
suggestive. See Brandon L. Garrett, Eyewitnesses and Exclusion, 65 VAND. L. REV. 451,
465 (2012) (“There are stronger arguments that an identification could have an
‘independent origin’ in court if the pretrial identification was not suggestive.”). Garrett’s
view is bolstered by scientific evidence indicating the difficulty of determining how a
witness’s memory may have been affected by a suggestive pretrial identification
procedure, which casts into doubt the ability of the court to determine whether a
witness’s in-court identification is based on observations of the suspect at the time of the
crime, a pretrial identification procedure, or some combination of the two. BRANDON L.
GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG
(2011).
In light of the above, in resisting a ruling that a challenged in-court identification is of
independent origin and therefore reliable, defenders should argue that the “independent
origin” standard is inconsistent with U.S. Supreme Court decisions governing the
interpretation of the Due Process Clause and with scientific evidence about the impact of
suggestive pretrial identification procedures on witness memory.
State guarantee of due process. Although North Carolina appellate courts have not
found that the state constitutional guarantee of due process exceeds the protections
provided by the Fourteenth Amendment in the eyewitness identification context,
attorneys should continue to assert the law of the land clause of article I, section 19 of the
North Carolina Constitution. Recently, judges in other jurisdictions have questioned the
U.S. Supreme Court’s test for the admissibility of eyewitness testimony “based on the
last 35 years of social science research into the reliability of eyewitness identifications.”
United States v. Greene, 704 F.3d 298, 305 n.3 (4th Cir. 2013) (discussing New Jersey v.
Henderson, 27 A.3d 872 (N.J. 2011) and Oregon v. Lawson, 291 P.3d 673 (Or. 2012)).
In Henderson, the New Jersey Supreme Court held that state guarantees of due process
provided greater protections than those afforded by the Fourteenth Amendment as
interpreted by the U.S. Supreme Court in Manson v. Brathwaite, 432 U.S. 98 (1977). The
court found that a defendant is entitled to a hearing to explore “all relevant system and
estimator variables” related to an eyewitness identification if he meets an initial burden of
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showing some evidence of suggestiveness tied to a system variable (one that is a product
of the criminal justice process) rather than an estimator variable (one that is not).
Henderson, 27 A.3d 872, 919. (For a further discussion of system and estimator
variables, see supra “Estimator and system variables” in § 3.2B, Factors Affecting
Eyewitness Identifications.) On such a showing, the burden shifts to the State to offer
proof that the eyewitness identification is reliable, considering both system and estimator
variables. The identification must be suppressed if, under a totality of circumstances, the
court determines that there is a very substantial likelihood of misidentification. If this
standard is not met, the court still must provide tailored jury instructions concerning the
problems with eyewitness identification.
The New Jersey Supreme Court determined that the governing test for evaluating the
admissibility of identifications needed revision, since “[s]tudy after study revealed a
troubling lack of reliability in eyewitness identifications.” Henderson, 27 A.3d 872, 877.
The court unanimously concluded that greater protections were needed to guard against
suggestiveness caused by system variables, and warned that “the very integrity of the
criminal justice system and the courts’ ability to conduct fair trials” was at stake. Id. at
879. Similarly, the Oregon Supreme Court noted that in the past 33 years, over 2,000
empirical studies have attested to the unreliability of eyewitness identification, and that
the court’s existing method of evaluating the admissibility of eyewitness testimony was
“incomplete and, at times, inconsistent with modern scientific findings.” Oregon v.
Lawson, 291 P.3d 673, 688 (Or. 2012). The Fourth Circuit Court of Appeals recently
stated:
The New Jersey and Oregon opinions represent a growing awareness
that the continuing soundness of the Manson test has been undermined
by a substantial body of peer-reviewed, highly reliable scientific
research.
United States v. Greene, 704 F.3d 296, 305 n.3 (4th Cir. 2013) (citing Brandon L.
Garrett, Eyewitnesses and Exclusion, 65 VAND. L. REV. 451, 453 (2012) (observing that
Manson was decided before the bulk of the research that has “revolutionize[d] our
understanding of human memory”)). While no North Carolina opinions have undertaken
a similar review to date, the passage of the Eyewitness Identification Reform Act reflects
the State’s recognition of the importance of social science in devising standards and
procedures to guard against the risks of misidentification. See infra § 3.5, Eyewitness
Identification Reform Act.
B. Right to Counsel
Sixth Amendment right to counsel at lineups and showups. The right to counsel at a
lineup after the initiation of adversary proceedings (the holding of initial appearance or
indictment, whichever occurs first) in which the accused is exhibited to an identifying
witness is assured by the Sixth Amendment. U.S. CONST. amend. VI; see Rothgery v.
Gillespie County, 554 U.S. 191 (2008); United States v. Wade, 388 U.S. 218 (1967);
Gilbert v. California, 388 U.S. 263 (1967); State v. Cherry, 298 N.C. 86 (1979). The
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presence of counsel in such circumstances is intended to guard against the “dangers and
variable factors which might seriously, even crucially, derogate from a fair trial.” Wade,
388 U.S. 218, 228. In contrast, the Sixth Amendment does not guarantee the right to
counsel where a lineup occurs before adversarial proceedings have commenced. State v.
Henderson, 285 N.C. 1 (1974), vacated on other grounds, 428 U.S. 902 (1976). Nor does
the Sixth Amendment guarantee the right to counsel at a photographic identification
procedure. United States v. Ash, 413 U.S. 300 (1973).
If a violation occurs, the identification must be suppressed. Further, an in-court
identification by a witness who took part in an invalid pretrial lineup must be excluded
unless the State demonstrates by clear and convincing evidence that the in-court
identification is of independent origin and not tainted by the illegal pretrial procedure.
See State v. Hunt, 339 N.C. 622, 646–47 (1994); see also supra “In-court identifications
may be tainted by unconstitutional pretrial identification procedures” and “Practice note”
in § 3.4A, Due Process.
For a further discussion of the right to counsel generally and at lineups, see 1 NORTH
CAROLINA DEFENDER MANUAL Ch. 12 (Right to Counsel) (2d ed. 2013).
Statutory right to counsel during nontestimonial identification procedures. A suspect
has a right to have counsel present during a nontestimonial identification procedure. See
G.S. 15A-279(d); G.S. 7A-451(b)(2); State v. Satterfield, 300 N.C. 621 (1980). Any
statements made during the proceeding must be suppressed if the defendant does not have
counsel present. G.S. 15A-279(d); see also State v. Coplen, 138 N.C. App. 48 (2000)
(refusing to suppress results of identification procedure, as distinguished from statements
of defendant, for violation of statutory right to counsel); 1 NORTH CAROLINA DEFENDER
MANUAL § 14.4 (Illegal Identification Procedures) (2d ed. 2013).
C. North Carolina Rules of Evidence
A largely untested but potential avenue for excluding unreliable identifications is through
reliance on the North Carolina Rules of Evidence. The evidence arguments are that an
unreliable identification: (1) risks prejudicing or misleading the jury in violation of N.C.
R. EVID. 403; (2) is not based on “personal knowledge” but is instead based on the
influence of system variables (see supra “Estimator and system variables” in § 3.2B,
Factors Affecting Eyewitness Identifications) that have interfered with the eyewitness’s
memory in violation of N.C. R. EVID. 602; and (3) is not “rationally based on the
perception of the witness” but is instead a result of post-event factors that have distorted
the original memory in violation of N.C. R. EVID. 701.
Support for these arguments can be found in a recent U.S. Supreme Court decision, in
which the court observed that one of the “safeguards built into our adversary system” in
the context of fallible eyewitness identifications is “[s]tate . . . rules of evidence . . . [that]
permit trial judges to exclude relevant evidence if its probative value is substantially
outweighed by its prejudicial impact or potential for misleading the jury.” Perry v. New
Hampshire, 565 U.S. ___, ___, 132 S.Ct. 716, 728–29 (2012). See also Oregon v.
Lawson, 291 P.3d 673 (Or. 2012) (en banc) (analyzing admissibility of eyewitness
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identifications under Oregon Rules of Evidence 602, 701, and 403). Seeking exclusion of
unreliable identifications on the basis of evidentiary rules offers the additional benefits
of: (1) protecting against unreliable identifications regardless of their source (after Perry,
565 U.S. ___, ___, 132 S.Ct. 716, federal due process guarantees only apply to cases in
which the suggestive identification procedures are orchestrated by the police); and (2)
potentially shifting the initial burden of establishing the reliability of the identification to
the State for purposes of Rule 602 and 701 analyses. See Lawson, 291 P.3d 673, 689
(ruling that the State bears the initial burden of establishing the admissibility of
eyewitness identification evidence challenged on evidentiary grounds since, “[i]n
evidentiary matters . . . the proponent of the evidence—in identification matters, usually
the state, although not necessarily so—traditionally bears the initial burden of
establishing the admissibility of the proffered evidence”).
3.5 Eyewitness Identification Reform Act
North Carolina’s Eyewitness Identification Reform Act (EIRA), G.S. 15A-284.50
through G.S. 15A-284.53, was passed in 2007. EIRA sets forth rules governing pretrial
eyewitness identification lineups, whether live or by photo array. The law was passed
after organizations such as the North Carolina Actual Innocence Commission, among
others, found that certain identification procedures help prevent wrongful identifications
and wrongful convictions. The opening section of the EIRA reflects this view: “The
purpose of this Article is to help solve crime, convict the guilty, and exonerate the
innocent in criminal proceedings by improving procedures for eyewitness identification
of suspects.” G.S. 15A-284.51. The law reflects best practices developed to prevent
suggestive pretrial identification procedures, including a requirement that lineups must be
“double-blind”, i.e., conducted by someone who is not participating in the investigation
and does not know which person is the suspect; that individuals or photographs should be
presented to witnesses sequentially rather than simultaneously; and that lineups should
include at least five fillers resembling the suspect at the time of the crime. G.S. 15A-
284.52(b) and (c).
The specific statutory requirements go beyond the constitutional minimum in ensuring
that lineups are conducted in a non-suggestive manner. Reliability is at the heart of
whether an identification procedure is constitutional, however, and the EIRA
requirements could be viewed as North Carolina’s interpretation of what it takes to
ensure that identification procedures are reliable.
In the case of an EIRA violation, the following remedies are available:
• Failure to comply with EIRA shall be considered by the court in adjudicating motions
to suppress eyewitness identification.
• Failure to comply with the requirements of EIRA is admissible in support of claims of
misidentification, so long as the evidence is otherwise admissible.
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• When evidence of compliance or noncompliance with EIRA is presented at trial, the
jury shall be instructed that it may consider credible evidence of compliance or
noncompliance in determining the reliability of eyewitness identifications.
G.S. 15A-284.52(d).
3.6 Procedures for Challenging Eyewitness Identification Evidence
There are three main ways in which defense attorneys can seek to mitigate the problems
associated with cross-racial identifications: by ensuring that identification practices are
not suggestive, by suppressing unreliable eyewitness identifications, and by educating
triers of fact about the hazards of cross-racial identifications. Sample motions to suppress
eyewitness identifications can be found in the Race Materials Bank at www.ncids.org
(select “Training & Resources”).
A. Motions to Suppress Pretrial Identifications and Prevent In-Court
Identifications
General considerations. In determining whether your client has a viable motion to
suppress evidence of pretrial identification procedures and prevent in-court
identifications, you should focus on the following questions:
• Does the case involve a cross-racial identification?
• Did a “suggestive” pretrial identification procedure take place?
• If so, did the suggestive procedure create a substantial risk of misidentification?
• Did the pretrial identification procedure comply with EIRA?
• Was there a lineup conducted outside of the presence of counsel after the initiation of
adversary proceedings (the holding of initial appearance or issuance of indictment,
whichever came first)?
• Would any improper pretrial identification procedure taint an in-court identification
of the defendant?
Voir dire of the eyewitness. In challenging the admissibility of an eyewitness
identification, you should request a hearing involving voir dire of the challenged witness.
See State v. Flowers, 318 N.C. 208, 216 (1986) (“Before admitting challenged in-court
identification testimony, the trial court should conduct a voir dire, find facts, and
determine the admissibility of the testimony.”).
Practice note: Even if you are ultimately unsuccessful with your pretrial motion to
suppress an eyewitness identification, litigating the suppression motion may uncover
useful information that will help you to prepare your cross-examination of the
eyewitness. The ultimate issue concerning such a motion is whether, under the totality of
the circumstances, the eyewitness identification is reliable. For this reason, the scope of
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the inquiry is broad. Moving to suppress an eyewitness identification may lead to useful
discovery and allow you to avoid surprises when you cross-examine the eyewitness.
Implication of cross-racial impairment on lineup construction. In support of your
motion to suppress an identification made by a witness who is of a different race than
your client, consider whether the pretrial identification procedures may have exacerbated
problems associated with cross-racial identifications. Lineups should include the suspect
and several fillers who resemble the suspect and are consistent with the witness’s
description of the perpetrator. EIRA provides that lineups “shall be composed so that the
fillers generally resemble the eyewitness’s description of the perpetrator, while ensuring
that the suspect does not unduly stand out from the fillers”; and that “[a]ll fillers selected
shall resemble, as much as practicable, the eyewitness’s description of the perpetrator in
significant features, including any unique or unusual features.” G.S. 15A-284.52(b)(5).
Violations of EIRA must be considered by the court in ruling on motions to suppress
evidence of eyewitness identification. G.S. 15A-284.52(d)(1).
To ensure that the fillers resemble the description of the perpetrator and the suspect
reasonably resembles the fillers, it is important that the person selecting fillers for lineups
is capable of identifying people who adequately resemble the suspect and witness’s
description of the perpetrator. Three studies found that lineup constructors are “more
selective about which photos [go] into their own-race lineups than their other-race
lineups. As a result, the fairness of other-race lineups [is] negatively affected.”
EYEWITNESS TESTIMONY § 4-13 (citing John C. Brigham & David J. Ready, Own-Race
Bias in Lineup Construction, 9 LAW & HUM. BEHAV. 415 (1985); R. C. L. Lindsay et al.,
Does Race Influence Measures of Lineup Fairness?, 13 APPLIED COGNITIVE PSYCHOL.
S109 (1999); John C. Brigham et al., Standards for Evaluating the Fairness of
Photograph Lineups, 11 B
ASIC & APPLIED SOC. PSYCHOL. 149 (1990). Accordingly,
experts recommend that lineups be created by law enforcement officers of the same race
as the subjects pictured in the lineup whenever possible. See, e.g., E
YEWITNESS
TESTIMONY at § 4-13; June E. Chance & Alvin G. Goldstein, The Other-Race Effect and
Eyewitness Identification, in PSYCHOLOGICAL ISSUES IN EYEWITNESS IDENTIFICATION
153, 173 (1996).
Illustration: Defense motions to suppress in two North Carolina cases at the trial level
illustrate the ways in which race may affect pretrial eyewitness identification procedures.
The descriptions below are drawn from those motions, which are available in the Race
Materials Bank at www.ncids.org (select “Training & Resources”).
In a Cleveland County case involving cross-racial identification, a Black defendant was
placed in a lineup after a robbery and kidnapping in which a witness identified the
perpetrator as a Black male with short hair, parted down the middle. See Motion to
Suppress, 2003 Cross-Racial ID Case in the Race Materials Bank at www.ncids.org
(select “Training & Resources”). In the photo lineup shown to the White witnesses, only
the suspect had his hair parted down the middle; the fillers did not. One witness identified
the defendant by explicit reference to his middle part. The defendant filed a motion to
suppress the pretrial identification and preclude in-court identification as irreparably
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-21
tainted. In anticipation of the objection that it would have been difficult to find a
photograph of a Black man with a middle part, counsel’s affidavit in support of his
motion to suppress the pretrial eyewitness identification procedures included information
from an investigator who interviewed Cleveland County barbers reflecting that the
middle part was a common hair style for Black men in Cleveland County. Right before
jury selection, the eyewitnesses told the prosecutor they were unable to identify the
defendant if asked to point him out in the courtroom, and the charges were dismissed. See
Motion to Suppress, 2003 Cross-Racial ID Case; Motion to Prevent In-Court ID of
Defendant, 2003 Cross-Racial ID Case; Suppression Affidavit, 2003 Cross-Racial ID
Case; and Motion to Hire Eyewitness ID Expert, 2003 Cross Racial ID Case; all in the
Race Materials Bank at www.ncids.org (select “Training & Resources”).
In another case involving cross-racial eyewitness identification, a Black defendant was
charged with robbery after a White witness identified him in a photo lineup in which he
was the only subject with corn-rows or braids, while all the other subjects had hairstyles
resembling one another. See Motion to Suppress, 2002 Cross-Racial ID Case in the Race
Materials Bank at www.ncids.org (select “Training & Resources”). Further, the defendant
was the only person in the lineup with a black hat, and witnesses had indicated that the
robber was wearing a black hat. Before hearing the motion, the same White eyewitness
who had identified him from the photo lineup saw the defendant in open court, observed
that he was far shorter than the perpetrator, and said, “That’s not him.” The case was then
dismissed.
These cases illustrate that officers constructing lineups may fail to take unique or unusual
features into account, resulting in suggestive identification procedures.
Attorneys concerned that the filler photos in a lineup do not adequately resemble their
client may want to determine the race of the police officer responsible for assembling the
lineup. If the officer is of a different race than the subjects pictured in the lineup, defense
counsel should consider using the above studies as part of a motion to suppress the
pretrial identification procedure and prevent any subsequent in-court identification. If the
motion to suppress is denied, counsel should consider presenting expert testimony about
cross-racial lineup construction to educate the jury about the risk that the police officer’s
race may have affected his or her ability to construct a non-suggestive identification
procedure. See infra § 3.6D, Expert Testimony.
Suppressing showups. A showup is a pretrial identification procedure in which a
“suspect is shown singularly to a witness or witnesses for the purposes of identification.”
State v. Harrison, 169 N.C. App. 257, 262 (2005). Showups usually occur shortly after a
crime’s commission, when an officer arrests a suspect and seeks confirmation from a
witness that he or she has apprehended the correct person.
The U.S. Supreme Court and North Carolina appellate courts disfavor showups. See
Stovall v. Denno, 388 U.S. 293, 302 (1967) (“The practice of showing suspects singly to
persons for the purpose of identification, and not as part of a lineup, has been widely
condemned.”); State v. Lee, 154 N.C. App. 410, 414 (2002) (showups are “strongly
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-22
disfavored methods of identification”). Our Supreme Court has observed that “the use of
a showup where other methods of identification are feasible has been widely
condemned.” State v. Matthews, 295 N.C. 265, 285–86 (1978) (noting that showups “may
[be] inherently suggestive for the witnesses would likely assume that the police had
brought them to view persons whom they suspected might be the guilty parties”).
However, not all showups will violate a defendant’s due process rights. See State v. Lee,
154 N.C. App. at 414 (noting that “this Court has approved the use of show-ups on
numerous occasions”). As in the evaluation of any pretrial identification procedure, “[t]he
trial court must employ the totality of the circumstances test to evaluate the reliability of
a show-up identification and determine whether the procedures created a substantial
likelihood of irreparable misidentification.” Id. (quoting State v. Fowler, 353 N.C. 599,
617 (2001)) (internal quotations omitted); see also ROBERT L. FARB, ARREST, SEARCH,
AND
INVESTIGATION IN NORTH CAROLINA 558–59 (UNC School of Government, 4th ed.
2011) (noting that a showup “is a suggestive identification procedure that normally
should be avoided” but that it may be permissible in an emergency or soon after a crime
is committed).
While confirming that showups are “sometimes troubling,” the North Carolina Court of
Appeals has held that EIRA does not apply to showups. State v. Rawls, 207 N.C. App.
415, 423 (2010). (The Rawls court did not address the question of whether EIRA applies
to “photo showups,” in which an eyewitness is shown a single photograph of a suspect
during a pretrial identification procedure.) Rawls should not be read to mean that officers
may avoid EIRA lineup requirements by conducting showups when not warranted by
legitimate law enforcement objectives. Rawls involved a situation in which officers
decided to do a showup in light of the exigencies of the situation. Officers arrived on the
scene within minutes after the victim’s apartment had been broken into; they located the
defendant and other suspects shortly thereafter, who were still in the area; and they drove
the victim to where the suspects were being held, which took a mere 45 seconds. Other
instances, when a showup is unnecessary or is employed to avoid EIRA procedures, may
violate both statutory as well as constitutional requirements. Whether or not EIRA
applies to a showup in a particular case, the statutory provisions may assist defenders in
framing an argument that the showup was unconstitutionally suggestive. For example, the
provision in EIRA mandating at least five fillers in all lineups reflects legislative
concerns that, the fewer persons included in a lineup, the more likely it is to result in
mistaken identification. G.S. 15A-284.52(b)(5).
Importance of raising issue pretrial in motion to suppress rather than in motion to
dismiss. North Carolina appellate courts have held that an eyewitness’s identification of
the defendant as the perpetrator is generally sufficient to defeat a motion to dismiss on
the basis of identity. See State v. Carpenter, __ N.C. App. __, 754 S.E.2d 478 (2014);
State v. Mobley, 86 N.C. App. 528, 532 (1987). This standard underscores the importance
of challenging identification evidence pretrial.
Practice note: While you must make a motion to suppress evidence of pretrial
identifications and tainted in-court identifications before trial (subject to certain
exceptions), if your motion is denied you also must object to the evidence of the pretrial
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-23
identification procedure when it is introduced and to the in-court identification of the
defendant when it is made to preserve those issues for appeal. See State v. Hunt, 324 N.C.
343, 355 (1989) (“Assuming arguendo that defendant’s constitutional right of assistance
of counsel at the lineup was violated, defendant waived that error by failing to object
when the witness later identified him before the jury as the man he had picked out of the
lineup.”). If you fail to object, you will waive the objections and will have to meet the
higher standard of plain error on appeal. See State v. Hammond, 307 N.C. 662, 666
(1983); State v. Stowes, ___ N.C. App. ___, 727 S.E.2d 351, 355 (2012).
B. Voir Dire
Voir dire is the defense’s first opportunity to question the jurors about the eyewitness
identification issues central to the defendant’s theory of the case. It provides an important
opportunity for eliciting information from prospective jurors about their experiences and
views on cross-racial identification. Defense attorneys should consider integrating cross-
racial eyewitness identification issues into their voir dire questions when it is at issue. For
example, if your case involves a cross-racial identification, you may want to inform the
potential jurors of this fact and explore their opinions and experiences regarding cross-
racial identification. If your theory of the case involves cross-racial impairment, your
goal in voir dire is to weed out jurors who may not be receptive to evidence of this
phenomenon. For example, you may want to ask potential jurors:
• Tell me about the most memorable time when someone mistook you or someone you
know for someone else. In your opinion, what factors played into that mistake?
• Tell me about your most memorable experience where you or someone you know
jumped to a conclusion about a person because of that person’s race.
• Do you have an opinion about whether White people find it more difficult to identify
Black people than to identify other White people? Tell me about that opinion. Tell me
your most memorable experience where you or someone you know had trouble
identifying a person of another race.
• Do you think that only people who are racially biased find it difficult to identify
people of other races? Tell me how you formed that opinion.
• Do you think that if a White person has a family member or a close friend who is
Black, then that White person will have no difficulty in identifying a Black person?
Tell me about that opinion.
Voir dire allows defenders to explore whether any of the potential jurors appear overly
confident about the accuracy of cross-racial identifications. In general, whenever cross-
racial misidentification forms part of the defense theory, attorneys should use voir dire to
determine whether potential jurors believe that witnesses can be honest and confident, but
nevertheless wrong in their identification of a perpetrator; whether they understand the
concept of cross-racial impairment; and whether they believe that cross-racial impairment
may affect even non-prejudiced witnesses. See Kathryn M. Kase, Eyewitness
Identification: Tools for Litigating the Identification Case in the Race Materials Bank
at www.ncids.org (select “Training & Resources”).
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Ch. 3: Eyewitness Identifications (Sept. 2014) 3-24
You may also consider petitioning the court for use of a questionnaire in cases involving
eyewitness identifications issues in general and cross-racial identification issues in
particular. Jeff Robinson & Jodie English, Confronting the Race Issue During Jury
Selection, THE ADVOCATE, May 2008, at 57, 61. Potential jurors “may be more likely to
reflect honestly and independently when answers are given in writing . . . versus in the
public and intimidating environs of a criminal court.” Id. For examples of questionnaire
questions, see Kathryn M. Kase, Eyewitness Identification: Tools for Litigating the
Identification Case in the Race Materials Bank at www.ncids.org (select “Training &
Resources”).
On potentially sensitive issues such as the impact of race on eyewitness identifications,
attorneys may want to request permission to voir dire prospective jurors individually.
There is little North Carolina law addressing individual voir dire in non-capital cases, but
the trial judge’s discretion over the conducting of voir dire implies the authority to order
individual voir dire concerning sensitive matters. See 2 NORTH CAROLINA DEFENDER
MANUAL Ch. 25 (Selection of Jury) (2d ed. 2012).
Avoiding “stake out” questions while exploring cross-racial impairment. Lawyers are
prohibited from asking questions that attempt to indoctrinate potential jurors as to their
theory of the case. See State v. Parks, 324 N.C. 420, 423 (1989). For this reason, lawyers
may not “stake out” jurors by asking questions that attempt to commit prospective jurors
to a specific course of action in the case. See State v. Chapman, 359 N.C. 328, 345–46
(2005). It is possible, however, to determine whether jurors will be open to expert
testimony on eyewitness identification without running afoul of the prohibition on
staking out jurors. For example, the North Carolina Supreme Court found that the
following question did not constitute an attempt to stake out jurors: “If someone is
offered as an expert in a particular field such as psychiatry, could you accept him as an
expert, his testimony as an expert in that particular field.” State v Smith, 328 N.C. 99, 131
(1991). These types of questions may allow you to determine whether potential jurors
will bring an open mind to testimony from an expert witness on subjects such as cross-
racial impairment.
In conducting voir dire in a cross-racial identification case, the following points should be
kept in mind:
• Language matters. During voir dire, and throughout the case, eyewitness testimony
should “be referred to as the eyewitness’s ‘belief’ or ‘opinion.’” EYEWITNESS
TESTIMONY at § 9-7[b].
• Jurors in eyewitness identification cases should be willing to form conclusions that
are independent of an eyewitness’s opinion when presented with evidence or
information that calls reliability into doubt.
• Lawyers should build trust with potential jurors before diving into issues of race.
Addressing less sensitive issues first will help you maintain a comfortable and honest
conversation when the subject turns to race.
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Ch. 3: Eyewitness Identifications (Sept. 2014) 3-25
• Recommended approaches for discussing race include discussions of historical racial
prejudice and clarification that cross-racial impairment phenomenon is not indicative
of racial prejudice or animus.
• When panelists describe incidents in which they or others were involved, inquire into
possible cross-racial issues. For example, “What was the race of the perpetrator?”
And, if the perpetrator was of a different race, “Did you have difficulty describing
him or her?” Overly confident answers may suggest that the juror would not be
receptive to evidence about the cross-racial impairment phenomenon.
Seek racially diverse and representative juries. Research suggests that racial diversity
alters jury deliberations. Samuel R. Sommers, On Racial Diversity and Group Decision
Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J.
PERSONALITY & SOC. PSYCHOL. 597 (2006). A study by Samuel R. Sommers concluded
that racially diverse juries “had longer deliberations, greater focus on the actual evidence,
greater discussion of missing evidence, fewer inaccurate statements . . . and greater
discussion of race-related topics.” Jerry Kang et al., Implicit Bias in the Courtroom, 59
UCLA L. REV. 1124, 1180–81 (2012) (summarizing findings of Sommers’ study).
Sommers’ study also revealed pre-deliberation effects: “Simply by knowing that they
would be serving on diverse juries (as compared to all-White ones), White jurors were
less likely to believe, at the conclusion of evidence but before deliberations, that the
Black defendant was guilty.” Id. at 1181. For further discussion of the value of diverse
juries, see infra Ch. 8, Addressing Race at Trial.
C. Cross-Examination
Do not suggest an eyewitness is racially prejudiced where not supported by
evidence. In a criminal case where the defense theory is mistaken cross-racial
identification, the defense attorney’s cross-examination of an eyewitness can be a delicate
matter. Eyewitnesses often arouse jury sympathy, and villainizing an eyewitness may
alienate jurors. When there is no evidence suggesting that an eyewitness harbors explicit
racial biases, an aggressive cross-examination designed to demonstrate that an eyewitness
is unable to recognize and identify members of other races may be seen as offensive and
runs the risk of alienating the jury. “Counsel opposing an eyewitness wants to
communicate the impression that he or she is confident that the eyewitness is wrong and
that he or she does not ask the jurors to blame the witness for it.” EYEWITNESS
TESTIMONY at § 10-12.
However, when there is evidence that the eyewitness is racially biased, eliciting such
testimony may lead jurors to distance themselves emotionally from the eyewitness and
may bolster the defendant’s theory of the case. See Simmons v. Collins, 655 So. 2d 330
(La. 1995) (evidence of eyewitness’s use of racial epithets to demonstrate eyewitness’s
bias against Black people ruled admissible by Louisiana Supreme Court). In the O.J.
Simpson murder trial, for example, commentators viewed evidence of racist remarks by
Detective Mark Fuhrman as a key factor that caused the jury to be critical of his
testimony and ultimately return a not-guilty verdict. See, e.g., Leonard M. Baynes,
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-26
A Time to Kill, the O.J. Simpson Trials, and Storytelling to Juries, 17 LOY. L.A. ENT. L.J.
549, 563 (1997) (“The clincher for the jury was the Mark Fuhrman tapes.”).
Where an expert witness will testify for the defense on the subject of eyewitness
identification, and where the defense attorney knows that the eyewitness has had limited
exposure to members of the defendant’s race, it may be useful to cross-examine the
eyewitness in a non-accusatory manner concerning the nature and extent of his or her
interactions with members of the defendant’s race. See June E. Chance & Alvin G.
Goldstein, The Other-Race Effect and Eyewitness Identification, in PSYCHOLOGICAL
ISSUES IN EYEWITNESS IDENTIFICATION 153, 170–72 (1996).
Eyewitness confidence should not be the focus of the cross-examination. Historically,
cross-examination of eyewitnesses tended to focus on witness confidence, but research
shows that confidence is an unreliable indicator of accuracy. Steven Penrod & Brian
Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1
PSYCH. PUB. POL. & L. 817 (1995). Defense attorneys should avoid a line of questioning
that focuses too heavily on witness confidence so as not to suggest that jurors should
associate confidence with accuracy, and may want to file a motion in limine prohibiting
the prosecutor from implying that confidence is correlated with accuracy. See Lisa Steele,
Trying Identification Cases: An Outline For Raising Eyewitness Id Issues, THE
CHAMPION, Nov. 2004, at 8.
Lay the foundation for expert testimony during cross-examination. Cross-
examination can help lay the foundation for expert testimony (when admitted) by
establishing facts such as poor lighting, the presence of a weapon, the witness’s
experience with members of the defendant’s race, or the difference between the race of
the perpetrator and the race of the witness. See supra § 3.2B, Factors Affecting
Eyewitness Identifications. Even where expert testimony will not be offered or has not
been admitted, cross-examination presents an opportunity to elicit the factors that make
eyewitness opinions less reliable. See id.
Cross-examination of officers. When cross-examining police officers, attorneys should
be familiar with department policies and procedures, and the requirements of the
Eyewitness Identification Reform Act. A key goal in cross-examining officers involved
in pretrial identification procedures is to point out any differences between the procedures
used and the legislatively mandated procedures and departmental policies. In a case
involving a pretrial lineup constructed by an officer of a different race than the suspect,
counsel may want to question the officer about department policies or practices
concerning cross-racial lineup construction. See supra § 3.6A, Motions to Suppress
Pretrial Identifications and Prevent In-Court Identifications.
Cross-examination alone may not convince jurors of eyewitness unreliability. Some
research suggests that cross-examination alone may not drive home for jurors the
distinction between accurate and inaccurate eyewitness identification. R. C. L. Lindsay et
al., Mock-juror Belief of Accurate and Inaccurate Eyewitnesses: A Replication and
Extension, 13 LAW & HUM. BEHAVIOR 333 (1989). In eyewitness identification cases,
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-27
defense attorneys should consider the cross-examination of an eyewitness as one piece of
a multi-pronged strategy to address unreliable identifications. Suppression of eyewitness
identifications, expert witnesses on eyewitness identification, and jury instructions on
eyewitness identifications should also be pursued in order to prevent jurors from unduly
relying on eyewitness identification evidence.
D. Expert Testimony
Purpose. One goal of introducing expert testimony on the hazards of eyewitness
identification is to dispel potential misconceptions about the reliability of eyewitness
identification testimony. One study found that jurors who heard expert psychological
testimony in eyewitness identification cases “rated the defense’s case to be significantly
stronger than did jurors who heard no expert testimony.” MISTAKEN IDENTIFICATION at
227. Another study found that such testimony assists jurors in grasping the complex
factors that influence eyewitness identification accuracy. Id. at 240–41.
General standard. The North Carolina Supreme Court has held that “expert testimony is
properly admissible when such testimony can assist the jury to draw certain inferences
from facts because the expert is better qualified.” State v. Locklear, 349 N.C. 118, 147
(1998) (quotation omitted). Expert testimony will be admitted when it is helpful to the
jury, and “North Carolina case law requires only that the expert be better qualified than
the jury as to the subject at hand.” State v. Martin, __ N.C. App. __, 729 S.E.2d 717, 720
(2012) (quoting State v. Davis, 106 N.C. App. 596, 601 (1992)). “The trial judge is
afforded wide latitude of discretion when making a determination about the admissibility
of expert testimony.” State v. Bullard, 312 N.C. 129, 140 (1984).
Rule 702. In addition to meeting the general standard of helpfulness, expert testimony
concerning eyewitness identification generally, and cross-racial eyewitness identification
in particular, must satisfy the requirements of North Carolina Rule of Evidence 702,
Testimony by experts. That rule provides that
(a) If scientific, technical or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion, or otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the
facts of the case.
Rule 702(a) was amended in 2011 to require that the expert’s testimony be “based upon
sufficient facts or data” and the expert have “applied the principles and methods reliably
to the facts of the case.” These amendments essentially codified the principles in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). State v. McGrady, ___ N.C.
App. ___, 753 S.E.2d 361 (2014) (so holding). In essence, Rule 702(a) requires the judge
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Ch. 3: Eyewitness Identifications (Sept. 2014) 3-28
to serve a gatekeeping function, ensuring that expert testimony is relevant and reliable.
See also Alyson Grine, Legislative Change Regarding Expert Testimony, IDS FORENSIC
RESOURCES BLOG (Aug. 17, 2011). Scientific research supports that the study of
eyewitness identification is a valid and empirically based area of expertise beyond the
understanding of most jurors, and defenders should be prepared with studies to this effect
when offering expert testimony about eyewitness identification. See supra § 3.2,
Overview of Risks of Misidentification; § 3.3, Cross-Racial Impairment.
Rule 403. Expert testimony on eyewitness identification also must satisfy North Carolina
Rule of Evidence 403, Exclusion of relevant evidence on grounds of prejudice,
confusion, or waste of time. In North Carolina, “the admission of expert testimony
regarding memory factors is within the trial court’s discretion, and the appellate court
will not intervene where the trial court properly appraises probative and prejudicial value
of the evidence under Rule 403 and the Rules of Evidence.” State v. Cole, 147 N.C. App.
637, 642–43 (2001) (quoting State v. Cotton, 99 N.C. App. 615, 621 (1990), aff’d, 329
N.C. 764 (1991)) (holding that the trial court did not abuse its discretion by refusing to
admit expert testimony from a psychology professor on factors complicating eyewitness
identifications where the probative value of the proposed testimony “was outweighed by
the risk of confusing the jury”).
Rejection of expert testimony on eyewitness identification may constitute abuse of
discretion. In states that review the exclusion of expert testimony on eyewitness memory
for abuse of discretion, the rejection of such testimony has been held reversible error in
some cases. See, e.g., State v. Chapple, 660 P.2d 1208 (Ariz. 1983); People v. McDonald,
690 P.2d 709 (Cal. 1984) (holding that exclusion of such testimony will ordinarily
constitute an abuse of discretion where eyewitness identification is a key element of the
prosecution’s case, not corroborated by evidence of independent reliability, and
defendant offers a qualified expert on eyewitness issues not likely to be fully known or
understood by jury), overruled on other grounds by People v. Mendoza, 4 P.3d 265 (Cal.
2000). See also United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006) (reversal for
failure to allow expert to testify about effect of showup identifications, the lack of
correlation between confidence and accuracy, confirming feedback, and time delay, even
where trial court had allowed testimony on cross-racial impairment and other
identification variables); People v. Legrand, 867 N.E.2d 374 (N.Y. 2007) (where there is
little or no corroborating evidence supporting an eyewitness identification, it is an abuse
of discretion to exclude expert testimony).
Failure to offer expert witness testimony on eyewitness identification may amount to
ineffective assistance of counsel. In a federal habeas petition, a U.S. District Judge ruled
that a North Carolina defense attorney rendered ineffective assistance of counsel by
failing to consult with and call as a witness an expert on the reliability of eyewitness
testimony generally and on cross-racial identifications specifically. Moore v. Keller, 917
F. Supp. 2d 471 (E.D.N.C. 2012), rev’d sub nom, Moore v. Hardee, 723 F.3d 488 (4th
Cir. 2013). This ruling was reversed on appeal because the Fourth Circuit determined that
counsel was not so ineffective as to meet the “doubly deferential” standard mandated by
Strickland v. Washington, 466 U.S. 668 (1984) (holding that ineffective assistance of
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-29
counsel requires a demonstration that counsel’s representation fell below an objective
standard of reasonableness and, but for counsel’s unreasonable errors, the case outcome
probably would have been different), and the Antiterrorism and Effective Death Penalty
Act of 1996 (providing that, when state petitioners raise ineffective assistance of counsel
claims in federal habeas actions, the reviewing court must determine whether the state
court’s interpretation of Strickland was reasonable). Despite its reversal, the district
court’s ruling underscores the need for defense attorneys to consider challenging the
reliability of eyewitness identification in appropriate cases. See also People v. Kindle,
2002 WL 1554118 (Cal. Ct. App. 2002) (unpublished) (failure to consult with an
eyewitness identification expert constituted ineffective assistance of counsel given the
weakness of the evidence against defendant, lack of explanation for the failure to consult
an expert, and reasonable probability of a different result had defense counsel presented
expert testimony).
Expert testimony on cross-racial identification. Some courts have excluded expert
testimony on cross-racial identification, reasoning that such testimony was within the
common knowledge of the jury. See, e.g., United States v. Hudson, 884 F.2d 1016, 1024
(7th Cir. 1989) (expert testimony regarding, among other things, the difficulty of cross-
racial identification would “not aid the jury because it addresses an issue of which the
jury already generally is aware, and it will not contribute to their understanding of the
particular dispute”). Defenders should be prepared to counter the argument that cross-
racial impairment is common sense by presenting the judge with cross-racial impairment
studies and research showing that many jurors do not understand the phenomenon. See
State v. Henderson, 27 A.3d 872 (N.J. 2011) (referencing the Report of the Special
Master, available at www.eyeID.org, and noting that while 90% of experts recognize the
problem of cross-racial impairment, only 47% of jurors do). Without expert witness
testimony (and instruction from a judge on cross-racial impairment), deliberations may be
inhibited because jurors may “not want to appear to harbor racist views” by suggesting
that White people have difficulty distinguishing Black people. Id.
Practice note: If the court denies your motion to present expert testimony on eyewitness
identification on the basis that the testimony is within the “common knowledge” of the
jury, you may ask the judge to: take judicial notice of scientific findings about eyewitness
identification generally and cross-racial identification in particular; inform the jury that it
has taken judicial notice of the findings; and allow you to publish them to the jury. You
may then incorporate the findings into your closing argument and request an appropriate
jury instruction. See Lisa Steele, Trying Identification Cases: An Outline For Raising
Eyewitness Id Issues, T
HE CHAMPION, Nov. 2004, at 8; Lisa Steele, Public Knowledge,
Popular Wisdom and Urban Legend: Educating the Jury About Memory on Closing
Argument, 36 CRIM. L. BULL. 316 (2000).
Judges’ views on this subject may be shifting. In some cases, courts have recognized that
expert testimony on eyewitness identification unreliability may be necessary, observing
that “other means of attacking eyewitness identifications do not effectively substitute for
expert testimony on their inherent unreliability.” Ferensic v. Birkett, 501 F.3d 469, 481
(6th Cir. 2007). It is hard to estimate how frequently trial judges are admitting expert
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-30
testimony on eyewitness identification since “when expert testimony is admitted, there is
no appeal on the admissibility issue, and no opinion is issued. Similarly, when the
defendant is acquitted there is no appeal of a decision to exclude expert testimony.”
MISTAKEN IDENTIFICATION at 20.
The Fourth Circuit has recognized that cross-racial impairment falls into a narrow
category of circumstances in which expert testimony on the reliability of eyewitness
identifications may be appropriate in order to complement effective cross-examination of
eyewitnesses. United States v. Harris, 995 F.2d 532, 535 (4th Cir. 1993). A number of
courts have acknowledged that experts have found that cross-racial identifications are
“particularly unreliable.” Gonzales v. Thaler, 643 F.3d 425, 432 (5th Cir. 2011); see also
United States v. Jernigan, 492 F.3d 1050, 1054 (9th Cir. 2007) (“Cross-racial
identifications . . . are particularly suspect.”).
It does not appear that North Carolina appellate courts have specifically addressed the
admissibility of expert testimony on cross-racial impairment. In 2002, the North Carolina
Court of Appeals recognized that “expert testimony concerning eyewitness identification
may be appropriate in some cases,” while reaffirming that the admissibility of expert
testimony on eyewitness identification is generally a matter for the trial court’s
discretion. State v. Lee, 154 N.C. App. 410, 417 (2002). In an earlier case, the North
Carolina Court of Appeals, in upholding the rejection of expert testimony on eyewitness
identification, cautioned against interpreting the ruling as prohibiting such testimony
across the board: “Criminal defendants have increasingly presented expert testimony on
the reliability of eyewitness identification, and some courts have held its exclusion
reversible error.” State v. Knox, 78 N.C. App. 493, 496–97 (1985). The door is therefore
open in North Carolina to arguments that expert testimony on cross-racial impairment is
necessary and appropriate in a given case.
Practice note: In seeking the admission of expert testimony on cross-racial eyewitness
identification, defendants should highlight consequences that may result from exclusion.
For example, two North Carolina defendants who were denied the opportunity to present
expert testimony on the unreliability of cross-racial identification, were convicted, served
time in prison, and have since been exonerated.
The first was Ronald Junior Cotton. See State v. Cotton, 99 N.C. App. 615, 621–22
(1990) (affirming exclusion of expert witness on ground that the effects of stress, cross-
racial factors, priming of memory, and confidence malleability were commonly known to
jurors), aff’d, 329 N.C. 764 (1991); DNA Test Frees Innocent Man, NEWS & RECORD
(Greensboro), July 1, 1995, at A1. See supra “Illustration” in § 3.2B, Factors Affecting
Eyewitness Identifications.
The second was Terence Levonne Garner. See State v. Garner, 136 N.C. App. 1, 7–10
(1999); FRONTLINE: An Ordinary Crime (PBS television broadcast, Jan. 10, 2002);
Garner's Conviction Thrown Out, NEWS AND OBSERVER (Raleigh), February 6, 2002, at
A1. See supra “Case study: State v. Terence Garner” in § 3.3B, Impact of Cross-Racial
Impairment.
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Ch. 3: Eyewitness Identifications (Sept. 2014) 3-31
Role of the expert in eyewitness identification cases. Eyewitness experts typically
provide background information about factors influencing eyewitness accuracy. See, e.g.,
MISTAKEN IDENTIFICATION at 19. An expert witness may not offer testimony as to the
credibility of a witness. See generally State v. Ryan, __ N.C. App. __, 734 S.E.2d 598,
603 (2012) (in the absence of a proper foundation, an expert may not testify as to whether
sexual abuse in fact occurred, as such testimony amounts to opinion on credibility of
victim); see also State v. Stancil, 355 N.C. 266 (2002) (same). In the context of cross-
racial identifications, experts cannot testify as to the accuracy of a particular cross-racial
identification, since “the evidence . . . suggests that once a suspect has been selected from
a lineup by an eyewitness, there is no known way to make a useful judgment about the
likelihood that the eyewitness is correct.” Steven M. Smith et al., Postdictors of
Eyewitness Errors: Can False Identifications be Diagnosed in the Cross-Race Situation?,
7 PSYCHOL. PUB. POL’Y & L. 153, 166 (2001). Nevertheless, the context provided by an
expert would assist jurors in evaluating the accuracy of the eyewitness’s identification.
Case specific expert testimony. North Carolina courts may be more receptive to expert
testimony on eyewitness identification when it is “case specific.” In three cases, the
North Carolina Court of Appeals upheld the exclusion of expert testimony on eyewitness
identification where the trial court found that the proffered testimony was insufficiently
tied to the facts of the case. See State v. Lee, 154 N.C. App. 410, 417 (2002); State v.
Suddreth, 105 N.C. App. 122, 134 (1992); State v. Knox, 78 N.C. App. 493, 495–96
(1985). Thus, the court in Lee observed that although expert testimony “may be
appropriate in some cases,” it was not warranted in this case where the expert had “not
interviewed the victims, did not visit the crime scene, and did not observe any of the
eyewitnesses’ testimony at trial.” Lee, 154 N.C. App. 410, 417 (also discussing other
factors that supported trial judge’s ruling). Similarly, when reviewing the admissibility of
expert testimony on eyewitness identification, courts in other jurisdictions have examined
the “fit” between the testimony offered and the facts of the case. See, e.g., United States
v. Dowling, 855 F.2d 114, 118 (1988), aff’d, 493 U.S. 342 (1990); United States v.
Harris, 995 F.2d 532, 535 (4th Cir. 1993). For example, testimony regarding weapon
focus may properly be excluded where it is not linked to evidence about the presence of
weapons at the time the eyewitness observed the perpetrator and, therefore, would not
assist the jury. Dowling, 855 F.2d 114, 119. Defenders should ensure that the proposed
expert testimony bears a close relationship to the facts of the case and that the expert has
familiarized him or herself with the facts of the case before testifying. Although the
defense does not have a right to have an expert interview the victim, our expanded
discovery statutes ensure that the defense will be able to obtain, and an expert will be
able to review, any statements of the victim or notes or other materials reflecting the
victim’s observations.
Indigent defendants entitled to appointment of experts. Indigent defendants are
entitled to the assistance of counsel and other necessary expenses, including expert
assistance. G.S. 7A-450(b); G.S. 7A-454; State v. Tatum, 291 N.C. 73 (1976). Defenders
in cases involving cross-racial identifications may file motions for funds for an expert
witness in the field of eyewitness identification, as such experts may be necessary to
guarantee the defendant’s fundamental right to a fair trial and to effective assistance of
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Ch. 3: Eyewitness Identifications (Sept. 2014) 3-32
counsel, including the effective cross-examination of the State’s witnesses. In certain
circumstances, the refusal to grant funds for an expert witness on issues concerning
eyewitness identification may deprive the defendant of an opportunity to present a
defense of mistaken identity and violate the defendant’s constitutional right to due
process under the North Carolina Constitution and United States Constitution. See
generally Tatum, 291 N.C. 73; State v. Ballard, 333 N.C. 515 (1993); Ake v. Oklahoma,
470 U.S. 68 (1985).
For a discussion of obtaining funds for an expert witness, including applying ex parte for
funds, see 1 NORTH CAROLINA DEFENDER MANUAL Ch. 5 (Experts and Other Assistance)
(2d ed. 2013). See also Motion for Funds for Defense Expert in Eyewitness Identification
and for Ex Parte Hearing in the Race Materials Bank at www.ncids.org (select “Training
& Resources”).
Further resources. A sample motion for appropriate relief and petition for habeas corpus
challenging the rejection of expert testimony on cross-racial identification may be found
in the Race Materials Bank at www.ncids.org (select “Training & Resources”). A list of
local experts in the field of eyewitness identification can be accessed on the North
Carolina Indigent Defense Services Forensic Resources website. Additional resources,
including a sample direct examination of an expert on cross-racial identification by
Innocence Project Attorney Barry C. Scheck, can be accessed at www.eyeID.org.
E. Jury Instructions
Another way of addressing cross-racial impairment is to educate jurors about the problem
through the use of jury instructions. “The purpose of a specific jury instruction on cross-
racial identification is to permit juries to consider the increased possibility of
misidentification in determining whether or not there is sufficient evidence of guilt.”
American Bar Association, American Bar Association Policy 104D: Cross-Racial
Identification, 37 SW. U. L. REV. 917, 925 (2008).
General instructions. Jury instructions relevant to eyewitness identification cases
include N.C.P.I. 101.15, credibility, including opportunity to see and hear; N.C.P.I.
104.90, identification of defendant as perpetrator of a crime; and N.C.P.I. 104.94,
testimony of expert witness. In North Carolina, there is not a pattern jury instruction on
cross-racial impairment. Proposed instructions are discussed below in this section.
EIRA Instruction. EIRA provides that the Court shall instruct the jurors that they may
consider credible evidence of non-compliance with EIRA in evaluating the reliability of
eyewitness identification. In any case in which compliance with EIRA is at issue, the
defendant should tender in writing a jury instruction as governed by the statute and
reflected in pattern jury instruction N.C.P.I. 105.70, live lineup requirements, and/or
N.C.P.I. 105.65, photo lineup requirements.
Cross-racial impairment jury instructions in other jurisdictions. Some courts have
granted jury instructions advising jurors of the empirical findings about cross-racial
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Ch. 3: Eyewitness Identifications (Sept. 2014) 3-33
impairment. In State v. Cromedy, 727 A.2d 457, 467 (N.J. 1999), the New Jersey
Supreme Court considered forty years of empirical studies concerning the psychological
factors affecting eyewitness identifications in holding that a cross-racial identification
“requires a special jury instruction in an appropriate case.” The court noted that most,
although not all, experts agreed that people experience more difficulty identifying people
of other races. The court found that, “notwithstanding those differences [in expert
opinions], there is an impressive consistency in results showing that problems exist with
cross-racial eyewitness identification.” Cromedy, 727 A.2d 457, 467.
Thereafter, in State v. Henderson, 27 A.3d 872 (N.J. 2011), the New Jersey Supreme
Court revisited and updated the state’s jury instructions concerning cross-racial
impairment on the basis of research conducted after Cromedy. The court noted that one
“meta-analysis conducted after Cromedy, involving thirty-nine studies and nearly 5,000
identifications, confirmed the Court’s prior finding” that witnesses may have more
difficulty making a cross-racial identification. Henderson, 27 A.3d 872, 907 (citing
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, 21
(2001)). That meta-analysis concluded that a mistaken identification is 1.56 times more
likely in cross-race conditions; in other words, an innocent Black suspect has a 56%
greater chance of being misidentified by a White eyewitness than by a Black eyewitness.
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). The court recognized that most potential jurors were not aware of this issue: a
2006 study found that while 90% of experts recognize the problem of own-race bias, only
47% of jurors do. Henderson, 27 A.3d 872, 910 (referencing the Report of the Special
Master, available at www.eyeID.org). As a result of these findings, the Court expanded
its holding in Cromedy and concluded that an instruction cautioning jurors about the
problems of cross-racial identification should be given whenever cross-racial
identification is an issue at trial. Henderson, 27 A.3d 872, 926.
Other states in which cross-racial identification jury instructions must be given in these
circumstances include Utah, see State v. Long, 721 P.2d 483, 494 n.8 (Utah 1986)
(instruction that would satisfy the court’s concerns instructs jurors to “consider whether
the witness is of a different race than the criminal actor. Identification by a person of a
different race may be less reliable than identification by a person of the same race.”);
State v. Brink, 173 P.3d 183, 185 n.1 (Utah 2007) (discussing with approval an
instruction providing in part that “a witness identification of a person of a different race
may be less reliable”); and California, see People v. Palmer, 203 Cal. Rptr. 474, 475 n.2
(Cal. Ct. App. 1984) (reversible error to reject defendant’s proposed jury instruction that
would have instructed jurors to “consider whether or not the witness is the same race as
the individual he is attempting to identify. If they are not, you should consider the effect
this would have on an accurate identification.”).
Cross-racial jury instructions in North Carolina. The rejection of proposed jury
instructions on cross-racial impairment was upheld by the North Carolina Supreme Court
in 1980 and by the North Carolina Court of Appeals in 1984. State v. Allen, 301 N.C. 489
Raising Issues of Race in North Carolina Criminal Cases
Ch. 3: Eyewitness Identifications (Sept. 2014) 3-34
(1980); State v. Miller, 69 N.C. App. 392 (1984). Since that time, scientific evidence of
cross-racial impairment has grown.
In Allen, the Court upheld the rejection of jury instructions on cross-racial identification
because there was “no indication that race in any way affected the identification of
defendant by the witnesses.” Allen, 301 N.C. 489, 495. When requesting an instruction on
cross-racial identification, counsel should argue that the reasoning of Allen does not
account for later scientific findings concerning cross-racial impairment. 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, 21
(2001); see supra § 3.3A, Empirical Evidence of Cross-Racial Impairment. Further,
defense attorneys should argue that Allen does not require that the defendant show that
the cross-racial identification was erroneous, only that a reasonable jury could find that
the identification was affected by cross-racial factors. As appropriate, defense attorneys
should also distinguish the facts of their client’s case from those in Allen, which involved
an eyewitness identification occurring during the daytime in close quarters.
Recently, in State v. Watlington, ___ N.C. App. ___, 759 S.E.2d 116, 127 (2014), the
North Carolina Court of Appeals upheld the rejection of proposed jury instructions
concerning eyewitness identification that “bore a strong resemblance to the New Jersey
instruction developed as a result of the Henderson decision.” Among other things, the
defendant requested that the court instruct the jury that, “since research has shown that
people may have greater difficulty in accurately identifying members of a different race,
[the jurors should consider] whether the witness and the alleged perpetrator are of the
same or different races.” Id. (internal quotations omitted). The court concluded that the
defendant failed to offer evidentiary support for the facts embedded in the proposed
instructions and that it would be improper for an appellate court to make the factual
findings necessary to reverse the trial court’s failure to deliver the proposed instructions.
Id. at 129–30. The Watlington opinion indicates that, when proposing jury instructions
concerning eyewitness identification generally and cross-racial impairment specifically,
defendants should support the proposed instructions with empirical research supporting
the factual assertions contained in the proposed instructions. See supra § 3.3A, Empirical
Evidence of Cross-Racial Impairment.
Content of cross-racial impairment jury instructions. Chief Judge Bazelon of the D.C.
Circuit Court of Appeals proposed a jury instruction on the issue of cross-racial
identification in his concurring opinion in United States v. Telfaire, which has served as a
model in many jurisdictions. United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972)
(Bazelon, C.J., concurring). But see State v. Allen, 301 N.C. 489 (1980) (citing majority
opinion in Telfaire as support for its conclusion that a cross-racial jury instruction was
not mandated). This instruction, though still widely cited, contains a potentially
misleading suggestion that, despite possible risks of cross-racial misidentification, jurors
may “conclude that the witness has had sufficient contacts with members of the
defendant’s race that he would not have greater difficulty in making a reliable
identification.” Telfaire, 469 F.2d 552, 561 (Bazelon, C.J., concurring). Scientific
research indicates that exposure to members of the defendant’s racial group alone does
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Ch. 3: Eyewitness Identifications (Sept. 2014) 3-35
not necessarily improve the accuracy of cross-racial identifications. See supra “Practice
note” in § 3.3C, Causes of Cross-Racial Impairment. For this reason, defense attorneys
should not include this language in proposed jury instructions on cross-racial impairment.
An alternative instruction that incorporates both everyday experience and evidence from
psychological studies was proposed by Professor Sherri Lynn Johnson:
In this case the identifying witness is of a different race than the
defendant. In the experience of many it is more difficult to identify
members of a different race than members of one’s own.
Psychological studies support this impression. In addition, laboratory
studies reveal that even people with no prejudice against other races
and substantial contact with persons of other races still experience
difficulty in accurately identifying members of a different race. Quite
often people do not recognize this difficulty in themselves. You should
consider these facts in evaluating the witness’s testimony, but you
must also consider whether there are other factors present in this case
that overcome any such difficulty of identification.
Sherri Lynn Johnson, Cross-Racial Identification Errors In Criminal Cases. 69 CORNELL
L. REV. 934, 976 (1984).
You may want to be prepared to propose alternative wording if the court refuses the
above instruction, such as:
Research has shown that people may have greater difficulty in
accurately identifying members of a different race. You should
consider whether the fact that the witness and the defendant are not of
the same race may have influenced the accuracy of the witness’s
identification.
New Jersey Identification Instruction: In-Court and Out-of-Court Identifications
at 5,
New Jersey Criminal Model Jury Charges, revised February 2014.
Further resources. For a discussion of strategies for seeking a jury instruction on cross-
racial impairment and examples of jury instructions considered in other jurisdictions, see
A New Legal Architecture: Litigating Eyewitness ID Cases in the 21st Century 323–66,
PowerPoint presentation, NYU School of Law (March 14, 2008). available
at www.eyeID.org.
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