The New Jersey Supreme Court held in State v. Cromedy in 1999 that uncorroborated cross-racial identifications required a jury charge to offset the impairment that has been observed by social scientists when members of one race attempt to identify members of another race.
Yesterday, the same court identified a limit on the application of that holding, finding the cross-racial jury charge unnecessary in cases of cross-ethnic, yet same-race, identifications. In State v. Romero (PDF), --- A.2d ----, 2007 WL 1461022 (N.J. 2007), the court observed the following:
Social science research does not tie identification unreliability directly to ethnic differences in the same way that racial differences can affect identification reliability. That said, identification testimony is an area that warrants vigilant supervision. An eyewitness's identification carries significant impact in criminal cases. This appeal highlights the importance of the model charge that guides jurors in the assessment of the reliability of that powerful evidence. We use this opportunity to refine the charge so that it will alert jurors in all eyewitness identification cases that such testimony requires close scrutiny.
The case involved the identification of a "Hispanic Caucasian" by a "non-Hispanic Caucasian, which the court found to fall outside of the reach of Cromedy. The court based its distinction in part on the practice of the US Census Bureau, which "considers race and Hispanic origin to be two separate and distinct concepts," in recognition that "Hispanics may be of any race." The court held that applying the same reasoning used in Cromedy would require an expansion of that rule, and declined to do so at this time, citing insufficient research to date on the specific issue of cross-ethnic identifications. It stopped short, however, of holding that such an expansion of the rule might not be appropriate if future research bears out a similar impairment in cross-ethnic scenarios.
Highlighting the demonstrated fallibility of eyewitness identifications generally, the court went on to require a modification to the general charge on eyewitness testimony:
In light of the social science research noting the fallibility of eyewitness identifications, we direct that the charge should underscore, for jurors in all eyewitness identification cases, that eyewitness identification testimony requires close scrutiny and should not be accepted uncritically. Accordingly, we shall require that the following additional language be included in the out-of-court identification charge immediately before the enumeration of factors to be considered by the jury when it gauges the reliability and believability of an eyewitness's identification:
Although nothing may appear more convincing than a witness's categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications, although made in good faith, may be mistaken. Therefore, when analyzing such testimony, be advised that a witness's level of confidence, standing alone, may not be an indication of the reliability of the identification.
New Jersey continues to be a source of hope for progress, as its high court has been consistent in expressing an openness to the social science research that informs the issue. Romero's lawyer Richard Berg, while disappointed with the court's decision, expressed confidence (subscription required) that the court would eventually come to require the Cromedy charge in cross-ethnic cases.
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