Now this radical lawyer's lobby is urging that courts adopt their model jury instruction which would tell juries
In this case, the defendant, _______________ (insert name), is of a different race than ________________(insert name of identifying witness), the witness who has identified [him] [her]. You may consider, if you think it is appropriate to do so, whether the fact that the defendant is of a different race than the witness has affected the accuracy of the witness’ original perception or the accuracy of a later identification. Youshould consider that in ordinary human experience, some people may have greater difficulty inaccurately identifying members of a different race than they doin identifying members of their own race.So in effect a jury is to be told that they can ignore "cross-racial" identifications based not on the facts of the case or the credibility of the witnesses actually testifying, but rather on their own unsupported assumption that cross-racial identification "may" be unreliable for "some people" (whether this witness is one of the "some people" is apparently irrelevant).
Ordinarily, out-of-court witness identifications are subject to the following factors in determining their reliability, and defense attorneys can use each of these factors to attack an identification:
(1) The witness' opportunity to view the person who committed the offense at the time of theoffense.Assume for a moment a robbery case where the witness focused solely on the defendant's face for three minutes in full light, gave a full and accurate description to the police before seeing the perpetrator again 5 minutes later when the defendant was caught by police, and the witness was 100% certain of his susequent identification which happened only minutes after the crime.
(2) The witness' degree of attention on the perpetrator when [he/she] observed the crime being committed.
(3) The accuracy of any description the witness gave prior to identifying the
(4) The degree of certainty expressed by the witness in making any identification.
(5) The length of time between the witness' observation of the offense and the first identification.
(6) Discrepancies or inconsistencies between identifications, if any.
Under this ABA model instruction, the jury would be invited to throw a very strong identification out the window and disregard it solely because it was a cross-racial identification.
Very convenient for the defense bar. No need to argue that one or more of the 6 traditional factors is so weak as to render the identification unreliable. No, just put this instruction out there, appeal to the uninformed bias of the jurors, and let them ignore the 6 factors, which after all are simply common-sense indicators of the reliability of an identification.
This insulting instruction is also unecessary. In Virginia, we instruct the jury thus:
You are the judges of the facts, the credibility of the witnesses and the weight of the evidence. You may consider the appearance and manner of the witnesses on the stand, their intelligence, their opportunity for knowing the truth and for having observed the things about which they testified, their interest in the outcome of the case, their bias, and, if any have been shown, their prior inconsistent statements, or whether they have knowingly testified untruthfully as to any material fact in the case.A good defense attorney explores the 6 identification factors listed above, then using this instruction, tells a jury that the witness did not have a sufficient opportunity to make a credible, reliable ID. The jury is told to use their "common sense," so if it's really the case (as asserted in the ABA instruction) that cross-racial identifications are unreliable as a matter of "ordinary human experience," the current instruction is sufficient, and the ABA's race-instruction is unecessary.
You may not arbitrarily disregard believable testimony of a witness. However, after you have considered all the evidence in the case, then you may accept or discard all or part of the testimony of a witness as you think proper.
You are entitled to use your common sense in judging any testimony. From these things and all the other circumstances of the case, you may determine which witnesses are more believable and weigh their testimony accordingly.
You might be forgiven for concluding that this is yet another tired attempt by the criminal defense lawyer's lobby to make it easier to gain acquittals for their clients.