Recently, a New York judge made waves in the legal system almost as devastating as Rosie O'Donnell jumping off the high dive. Acting Bronx Supreme Court Justice Dominic R. Massaro agreed to allow experts to testify that cross-racial identifications are inherently suspect. Or in other words, experts can testify that white witnesses have trouble properly identifying black defendants and vice versa. Many observers worry that if other courts allow such testimony, then almost every criminal defendant will be able to use the race card. Well, I say, "Deal 'em up, baby!"
Everyday, we send people to prison or worse, to their deaths, based on eyewitness testimony. This is despite the fact that eyewitness testimony is as unreliable as my brother-in-law. Of the first 40 death row inmates exonerated through DNA testing, 36 of them had been sent to death row based on eyewitness testimony. Nevertheless, jurors often treat eyewitness testimony as the single most reliable piece of evidence; even more reliable than DNA, ballistics and home pregnancy tests. This was illustrated in the Simpson case. The jury was able to ignore a mountain of scientific evidence in reaching its verdict. However, if the prosecution had been able to present eyewitness testimony, the verdict would have come out differently. This is true even if that testimony came from an intoxicated 98-year-old woman with cataracts.
Eyewitness testimony is even more unreliable when the witness and the defendant are of different races. More than a dozen studies have found that there's about a 15% difference between the accuracy rates of identifying someone of your own race vs. identifying people of a different race. However, from my experience, I would have to say that these studies greatly underestimate the extent of the problem. When I was worked on Wall Street, the lawyers, accountants and investment bankers would assemble in a big conference room at the start of each deal. Very often, I was the only black man in the room (at least, the only one not holding a mop). Invariably, someone would approach me and say something like, "Hey Sean, I haven't seen you since the XYZ merger." Of course, I had never heard of XYZ Company. Nevertheless, I would usually play along saying something like, "It's good to see you too, Bill. By the way, I hate to bring this up now but do you have the $300 I loaned to you the night of the closing dinner?"
And these cases of mistaken identity weren't isolated to interactions with relative strangers. My co-workers often confused me with the only other black lawyer in our firm. This is despite the fact that I was six inches taller, fifty pounds heavier and infinitely cuter. Nevertheless, while walking through the office, I would often hear "Hi Darryl! How's it going?"
I usually ignored these greetings until the day I received an angry call from Darryl. He explained that he had been approached about his "attitude problem." Apparently, he was being perceived as arrogant for ignoring the greetings of his fellow colleagues.
Of course, in my case, these misidentifications were harmless and resulted in nothing more than a few laughs (and the threat of a multi-million dollar lawsuit if I was ever fired). However, just imagine if my freedom depended upon whether one of my co-workers could tell me apart from Darryl.
And it must be remembered that these people saw me five times a week walking through a well-lit office. Yet, they still couldn't correctly identify me. Now, imagine these people trying to identify a complete stranger as he runs through a dark alley.
Yet, for some reason, we routinely allow juries to decide a person's fate based upon these types of identifications.
Of course, I really shouldn't be surprised. After all, the symbol we use to represent our legal system is a statue of a blindfolded woman.
For years, I wondered why this was the case but now I know. She was the first eyewitness. In fact, I think she testified in the trial of Socrates. For the record, Socrates was convicted and executed, although he too was later exonerated. Seriously, eyewitness testimony has its place in our system but jurors should be warned about its limitations. After all, although justice should be blind, it shouldn't be deaf and extremely dumb as well.
I am a practicing attorney who writes a weekly humor column on current legal events called "Lawpsided." This column appears in a growing number of general circulation papers across the country. Moreover, my musings on the law appear on nationally recognized websites, such as findlaw.com and newsandopinion.com, and legal publications, such as The National Law Journal and The Los Angeles Daily Journal. Lastly, I am a regular contributor to national magazines like Razor and Tirade.