"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, May 14, 2008

ABA: Lazy Lawyer's Lobby

The ABA has long lost all credibility as a "professional" organization for lawyers, having long ago embraced the most extreme and radical positions that have absolutely zero to do with encouraging professionalism amongst lawyers, from abortion rights to illegal alien amnesty to opposing Federal action to protect marriage from re-definition to outright abolition of the death penalty.

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.
(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.
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.

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.
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.
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 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.


Anonymous said...

Maybe it was based on the decades of research that shows that cross-racial idenitifications are not all that reliable. See e.g., Michael Salfino, Limits to the Lineup: Why We’re Twice as Likely to Misidentify a Face of Another Race, 40 Psych. Today 6, 30 (Nov./Dec. 2006).

Is it just me, or do you not cite the ABA standard for prosecutors in the heading of your blog? Maybe they are doing what they say- trying to "seek justice, not merely to convict," and you are the one who talks the talk but doesn't walk the walk.

S said...

This is a change that is not only good, but long past due. One of the common threads in the DNA exonerations has been faulty eyewitness identifications. We should now do everything we can to limit the possibility of false ids leading to wrongful convictions. Social science research has demonstrated how faulty our common sense perceptions of ids have been. Factor 4, for example, the certainty of the witness, has been scientifically proven to have no correlation to the validity of the identification. It certainly seems logical that a person who is really certain of his pick would be more reliable than someone who is only 70% sure, but the research has clearly shown this is not true. So why would we continue to instruct jurors that they can consider that factor when we know it's an unreliable factor? As we in the legal profession learn more about eyewitness identifications, we should pass on that knowledge to the jurors.

I find it interesting that your example of a really strong id involves a one-person show-up, the most suggestive, unreliable identification possible.

Anonymous said...

the point of this post, which neither of you address, is that this instruction is really just a shortcut for a defense attorney doing his job, which is flesh out whether a particular witness' ID is reliable.

This instruction is so broad, so general and sweeping in its scope, that it really denies the govt a fair trial.

Or aren't they entitled to a fair trial also?

As to the junk science underlying this push, generalizations drawn from sampling are of little use in the courtroom, where the question is NOT, "whether SOME people MAY" have cross-racial ID issues, but whether THIS WITNESS, given all the surrounding circumstances, made a reliable ID.

I'm sure defense attorneys would like to tell the jury in effect, in any cross-racial case you can just nullify, but that's a bit of a sledgehammer reaction to the relative gnat-sized "problem" of cross-racial identifications.

S said...

It isn't a shortcut for the defense attorney. With the current instruction that you favor and with most courts still not allowing defense attorneys to put on experts on the subject of eyewitness identifications, defense attorneys are precluded from doing an effective cross-x. You want juries still to be instructed that they should consider the certainty of the eyewitness, even though certainty has no correlation to the accuracy of the id. We know that, but it's still a logically-appealing argument to lay people (you know, jurors). How is a defense attorney supposed to work around that unless we're able to put on the expert or change the instructions?

I just don't see the problem in giving the jury a big picture framework for deciding whether this witness did make a proper id.

And, no, it really isn't so general and sweeping in scope as to deny the poor state a fair trial. If it really is a "gnat-sized problem," this instruction won't affect many cases at all. If it's a strong cross-racial identification, the jury is not invited to throw it out. They're just being given better factors to consider.

I just don't understand why you would oppose giving juries the best tools possible for evaluating eyewitness identifications. Aren't you supposed to be seeking justice, not just a conviction of whoever you can convince a jury to find guilty?

But I'm just one of those radial abolitionists who favor abortion rights and gay marriage.

Tom McKenna said...

To say that SOME witnesses MAY misidentify (the ABA's modifiers, not mine) is akin to saying "some witnesses are nearsighted and may misidentify."

It's an interesting observation, but hardly relevant unless there is some evidence that THIS witness in THIS case is one of the "some" who "may" have this cross-racial problem.

That's the problem I have with the instruction... it invites the jury to make an illogical jump from "some people may" to "this witness did." And unless there is evidence to support that leap, it's just a cheap gimmick to attack IDs that can't be attacked in traditional ways.

And your beliefs on abortion and homosexual rights enter into this how? Don't recall putting a litmus test on who could post a comment around here.

karl said...


Eyewitness ID is the leading reason for wrongful conviction according to every study of the subject. Scores of men in recent years were convicted on such hogwash later only to be exonerated by DNA.

Turning to the instruction at issue here, the reality is the prosecution will object to any defense closing that mentions cross-racial ID. The defense, in almost every jurisdiction, is not permitted to put in to evidence, through an expert, testimony about how bad eyewitness ID is in general and how bad it specifically is in cross-racial circumstances. All this jury instruction does is permit the Defense to argue in closing and accepts what science already knows, cross-racial ID is suspect.

A prosecutor is still free to discuss how good the ID is, how the victim, staring down the barrel of gun will NEVER FORGET the face of the man who robbed/raped/threatened them. The reality is this instruction merely levels the playing field.

If it makes you feel any better, I have received similar instructions in jury trials where cross-racial eyewitness ID and lost more times than I care to admit.