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Cross-Racial Identification

Miami-Dade County is a diverse community. Many citizens hail from Latin America, the Caribbean, and all over the world.

While diversity is something to celebrate in a community, it can also lead to many problems pertaining to criminal law. One of those problems is known as cross-racial identification.

Studies have shown that people can better identify people of their own race than people of other races. That means that if you are white and you see another white person, you would have a better chance of identifying that person than if you had seen a black or Hispanic person.

Cross-racial identification - literally when a person of one race identifies a person of another race as a culprit - is full of problems. The reliability of a cross-racial identification is always a question.

Let's take an armed robbery for instance. A middle-aged Hispanic male is walking down a poorly-lit street at night and a young black male approaches. The young black male is wearing dark clothing and a hooded sweatshirt. He pulls out a gun, demands the Hispanic man's wallet and cellphone, takes the items and then runs away. The whole robbery takes about 10-15 seconds. Police arrive on scene and process it for evidence but reveal nothing. No shoe impressions on the sidewalk, no items dropped that can be tested for DNA or fingerprints. Not a trace of physical evidence. No surveillance footage either. Just the Hispanic man's account that a black male, between the ages of 15-20, medium height and build, approached and robbed him. He cannot give details about the hairstyle, skin tone (dark or light), tattoos, scars, or any other unique characteristics.

Miami-Dade RID (Robbery Intervention Detail) detectives believe that they know who committed the robbery so they put a photo lineup together. Using images from the driver's license database, investigators compile a page with 6 images on it. Each image depicts a young black male of medium height and build.

The lineup is shown to the Hispanic male 5 days after the robbery. He tells investigators that he "thinks" he can make an identification. The Hispanic male looks at the lineup and studies the 6 images for about 30 seconds. He then points to one of the photos and says, "that's the guy." Investigators ask him how sure he is. The Hispanic male replies, "70% sure."

The investigators are pleased since the person identified by the Hispanic male is the person they have suspected. They immediately go the suspect's parents' house where they arrest the suspect. The suspect invokes Miranda and does not give a statement. However, with the Hispanic male's positive ID, they legally have enough evidence to charge him. He is charged and held without bond for one count of armed robbery with a firearm.

These situations happen all of the time. But courts are now taking into account the extreme unreliability of these cross-racial identifications.

In fact, some states are now including the following jury instruction for cross-racial identification cases:

“Research has shown that people may have greater difficulty in accurately identifying members of a different race. You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification... Human memory is not foolproof. Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.”

I have handled cross-racial identification cases and I can tell you that it is downright scary that a person can be accused of a crime just because a person of a different race identified them.

I hope that more states and more courts understand the importance of informing jurors that they must consider the implications of cross-racial identification when deliberating in a case that involves such evidence.

Eric Matheny is a criminal defense attorney serving Miami-Dade County.