Early on the morning of January 10, 1999, a cab driver gave a ride to a young African-American man wearing a green mask which covered his mouth. After paying the cab driver, the man pointed a gun at the cabbie and declared he would "take all of it." The cab driver returned the man’s money but no more. The man fled on foot. With the cab driver chasing him, the man dropped his mask and escaped from the scene.
The next day, the cab driver was shown a photo line-up. He immediately identified the photo of Bobby Kelly as the robber. He said he got a good look at the robber’s eyes when the mask came off. DNA analysis of the mask confirmed that Kelly, and at least two others, had worn that mask. The state indicted Kelly for armed robbery.
Commonly Held Belief
Before trial, Kelly requested funds to retain an expert witness regarding the reliability of cross-racial identifications. The trial court denied the request on the basis that there is a widely held belief that cross-racial identifications are less reliable. Therefore, the expert testimony would not be helpful to the jury. The court did instruct the jury regarding cross-racial identification and both sides discussed it their arguments to the jury. The jury convicted Kelly. He appealed, claiming the trial court abused its discretion in denying his request for an eyewitness identification expert.
The Maine Supreme Judicial Court observed that the trial court is vested with broad discretion with regard to the admission of expert testimony, including expert testimony on reliability of eyewitness identification. No court has held that excluding such testimony is an abuse of discretion.
Here the trial judge instructed the jury on cross-racial identification and both parties argued the issue to the jury. The trial court’s determination that the expert testimony would not assist the trier of fact is not clearly erroneous and its decision was within its broad discretion. Judgment affirmed.
| Lauren R. Shapiro, Ph.D. Associate Professor of Psychology Emporia State University |
Shapiro: As a witness to a crime, the police may present you with a photograph spread containing faces of strangers from a different ethnic background than yourself. Would you be able to distinguish the suspect among them? The issue of identification memory has been a concern of psychology researchers for over thirty years. Contrary to beliefs held by those in the legal system, what people see and remember about a crime is influenced by their knowledge of crimes and criminals.
Thus, both perception and memory of witnesses are subject to inaccuracies and distortions. The increasing number of innocent people who were mistakenly convicted of crimes based on eyewitness identifications, but were later exonerated using forensic DNA tests exemplifies the degree of fallibility. Unfortunately, this problem is prevalent even when photograph line-up procedures are performed in ways that limit bias as indicated in the NIJ recommended guidelines for eyewitness evidence (e.g., presentation, instructions). For example, in two of my studies, 67% of the witnesses made false identifications.
Different Race Increases False Identification
"Once a witness has classified a person as belonging to a particular group, then stereotypes about that group will affect his or her expectations and memory of how the suspect looked."
High rates of false identifications have generally been found when the suspect is from a different ethnic background as the witness. This "cross-ethnic" identification problem has been found for both European-American and African-American witnesses. What makes the identification process flawed? Stereotyped notions of criminals affect what people see and remember about the crime and the perpetrator. Stereotypes help people to remember information, such as physical facial attributes shared by a group, and make judgments more efficiently than having to recall specific features of an individual’s face. Once a witness has classified a person as belonging to a particular group, then stereotypes about that group will affect his or her expectations and memory of how the suspect looked.
People believe that facial features of members from a different ethnic background are relatively homogeneous, whereas members from the same ethnic background are perceived as heterogeneous. This misconception may explain why witnesses who are faced with cross-ethnic identification have difficulty selecting the perpetrator and may lament, "They all look alike." Witnesses may be basing their selection of the suspect on how well the person in the photograph represents a particular group rather than on their memories of how the perpetrator actually looked. Consequently, as with any shortcut, the identification of a particular person belonging to the cross-ethnic group will be impaired.
Black Nose
Recent research suggests that witnesses’ difficulty in selecting a suspect from a different ethnic background may also stem from how they examine features of the perpetrator’s face. Eyewitnesses use holistic rather than feature-based processing to identify a suspect. That is, people do not focus on separate features of the face, such as the shape of the eyes, but rather they consider inter-featural properties, such as the distance between features, relative sizes of the features (i.e., shape of the nose relative to its placement near the eyes), and other aspects of how the face is configured. Eyewitnesses also classify the suspect as belonging to a particular ethnic background (e.g., "a black nose"), but fail to explore the features further to recognize the person as an individual. The ability to distinguish among features of different faces to discriminate one stranger from another is present in three-month-old infants. Thus, it is not that witnesses are incapable of discerning among suspects cross-ethnically, but rather they simply don’t.
