by Jill Paperno,
Last week the Court of Appeals issued a decision requiring that if requested, a jury charge must be given on the potential lack of reliability of identification evidence in cross-racial identification cases. People v. Boone, 2017 N.Y. Lexis 1722. Notably, the Court did not require expert testimony on cross-racial identification, or even cross-exam of the witness, for the charge to be given. The Court stated:
In light of our discussion of the cross-race effect, which has been accepted by a near consensus in the relevant scientific community of cognitive and social psychologists, and recognizing the very significant part that inaccurate identifications play in wrongful convictions, we reach the following holding: in a case in which a witness's identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of [*18] a [**8] different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness's identification. The instruction would not be required when there is no dispute about the identity of the perpetrator nor would it be obligatory when no party asks for the charge.
People v Boone, 2017 N.Y. LEXIS 3722, *17-18, 2017 NY Slip Op 08713, 7-8
Jury charges usually used by judges can be found on the Office of Court Administration website here http://www.nycourts.gov/judges/cji/index.shtml. Charges are divided into charges of general applicability and penal law charges. Browse them sometime; you might be surprised at what is in there - especially the charges of general applicability. You can download them in pdf or wordperfect. If you have a mobile device and a file sorting app like Goodreader you can download them in pdf and sort them and have them easily available for trial. You should always be reviewing the jury charges in any case you are litigating well in advance of trial.
The jury charges on the OCA website do not contain mandatory language, but instead suggested language. That means a charge may be flawed in general, or as it applies to your particular case. You can always submit your own jury charges too, if there are particular legal or factual issues that warrant a unique charge. Remember, if you don't get a charge you want, or the judge reads a charge you believe is improper, you must object after the charge when the judge asks if there are any "exceptions to the charge" or if the judge asks if you have any requests following the charge. That is usually done by approaching the bench. Make sure your requests are on the record. Also, if you've submitted written charges, make sure they are marked as court or defense exhibits so they are made part of the record. (Documents not marked as exhibits and made part of the record do not exist for purposes of appeal. So mark them and note what they are verbally on the record.)
If you have a one witness ID case and there is no confession or other evidence, you may be entitled to what is referred to as the "Expanded Identification Charge." It's a good one. Here it is: http://www.nycourts.gov/judges/cji/1-General/CJI2d.Identification-One_Witness.pdf I'd suggest given the growing body of information about eyewitness identification, you may want to request the expanded charge even if it's a two witness ID case with no other evidence.
The Court of Appeals in Boone included the cross-racial language from the one-witness jury charge in its decision:
"You may consider whether there is a difference in race between the defendant and the witness who identified the defendant, and if so, whether that difference affected the accuracy of the witness's identification. Ordinary human experience indicates that some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. With respect to this issue, you may consider the nature and extent of the witness's contacts with members of the defendant's race and whether such contacts, or lack thereof, affected the accuracy of the witness's identification. [*17] . . ." (CJI 2d [NY] Identification [One Witness]; CJI 2d [NY] Identification [Witness Plus]).
People v Boone, 2017 N.Y. LEXIS 3722, *16-17, 2017 NY Slip Op 08713, 7
That means that even if it's not a one witness case, you can still request this language (or stronger if you craft your own) be used in your request to charge on cross-racial identification. My understanding is that there are efforts underway to create a cross-racial identification charge even as we speak (or write).
Last week the Court of Appeals issued a decision requiring that if requested, a jury charge must be given on the potential lack of reliability of identification evidence in cross-racial identification cases. People v. Boone, 2017 N.Y. Lexis 1722. Notably, the Court did not require expert testimony on cross-racial identification, or even cross-exam of the witness, for the charge to be given. The Court stated:
In light of our discussion of the cross-race effect, which has been accepted by a near consensus in the relevant scientific community of cognitive and social psychologists, and recognizing the very significant part that inaccurate identifications play in wrongful convictions, we reach the following holding: in a case in which a witness's identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of [*18] a [**8] different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness's identification. The instruction would not be required when there is no dispute about the identity of the perpetrator nor would it be obligatory when no party asks for the charge.
People v Boone, 2017 N.Y. LEXIS 3722, *17-18, 2017 NY Slip Op 08713, 7-8
Jury charges usually used by judges can be found on the Office of Court Administration website here http://www.nycourts.gov/judges/cji/index.shtml. Charges are divided into charges of general applicability and penal law charges. Browse them sometime; you might be surprised at what is in there - especially the charges of general applicability. You can download them in pdf or wordperfect. If you have a mobile device and a file sorting app like Goodreader you can download them in pdf and sort them and have them easily available for trial. You should always be reviewing the jury charges in any case you are litigating well in advance of trial.
The jury charges on the OCA website do not contain mandatory language, but instead suggested language. That means a charge may be flawed in general, or as it applies to your particular case. You can always submit your own jury charges too, if there are particular legal or factual issues that warrant a unique charge. Remember, if you don't get a charge you want, or the judge reads a charge you believe is improper, you must object after the charge when the judge asks if there are any "exceptions to the charge" or if the judge asks if you have any requests following the charge. That is usually done by approaching the bench. Make sure your requests are on the record. Also, if you've submitted written charges, make sure they are marked as court or defense exhibits so they are made part of the record. (Documents not marked as exhibits and made part of the record do not exist for purposes of appeal. So mark them and note what they are verbally on the record.)
If you have a one witness ID case and there is no confession or other evidence, you may be entitled to what is referred to as the "Expanded Identification Charge." It's a good one. Here it is: http://www.nycourts.gov/judges/cji/1-General/CJI2d.Identification-One_Witness.pdf I'd suggest given the growing body of information about eyewitness identification, you may want to request the expanded charge even if it's a two witness ID case with no other evidence.
The Court of Appeals in Boone included the cross-racial language from the one-witness jury charge in its decision:
"You may consider whether there is a difference in race between the defendant and the witness who identified the defendant, and if so, whether that difference affected the accuracy of the witness's identification. Ordinary human experience indicates that some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. With respect to this issue, you may consider the nature and extent of the witness's contacts with members of the defendant's race and whether such contacts, or lack thereof, affected the accuracy of the witness's identification. [*17] . . ." (CJI 2d [NY] Identification [One Witness]; CJI 2d [NY] Identification [Witness Plus]).
People v Boone, 2017 N.Y. LEXIS 3722, *16-17, 2017 NY Slip Op 08713, 7
That means that even if it's not a one witness case, you can still request this language (or stronger if you craft your own) be used in your request to charge on cross-racial identification. My understanding is that there are efforts underway to create a cross-racial identification charge even as we speak (or write).
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