Cross-racial Misidentification: a Call to Action in Washington State and Beyond

• Publication year: 2015

SEATTLE UNIVERSITY LAW REVIEW Volume 38, No. 3, SPRING 2015

Cross-Racial Misidentification: A Call to Action in Washington State and Beyond

Taki V. Flevaris* and Ellie F. Chapman(fn**)

ABSTRACT

Research indicates eyewitness identifications are incorrect approximately one-third of the time in criminal investigations. For years, this phenomenon has significantly contributed to wrongful convictions all over the country, including in Washington State. But jurors, attorneys, and police remain unaware of the nature and extent of the problem and continue to give undue weight to eyewitness evidence. Experts have estimated that approximately 5,000-10,000 felony convictions in the United States each year are wrongful, and research suggests that approximately 75% of wrongful convictions involve eyewitness misidentification. The phenomenon of eyewitness misidentification is also amplified and most troublesome in the context of cross-racial identification-when a witness identifies someone of another race. Experimental research suggests that an eyewitness trying to identify a stranger is over 50% more likely to make a misidentification when the stranger and eyewitness are of different races. Consistent with this finding, approximately one-third of wrongful convictions uncovered by DNA analysis nationwide have involved whites misidentifying blacks. For these reasons, this Article focuses on cross-racial misidentification, and discusses the nature and extent of the problem and potential tools for addressing it; however, this Article's reasoning applies in large part to eyewitness misidentification in general.

The Washington State Supreme Court had two recent opportunities to address the issue of cross-racial misidentification in State v. Cheatam and State v. Allen. These cases establish that Washington State trial courts have broad discretion to permit expert testimony and jury instruction on cross-racial misidentification when relevant. In light of this precedent, this Article proposes that Washington State trial courts begin exercising their broad discretion regularly to admit such testimony and instruction whenever relevant as an initial step toward preventing wrongful convictions and improving our criminal justice system. Going forward, additional education and reform efforts will be needed to solve this ongoing problem.

I. INTRODUCTION

The story of Michael Marshall presents a prime example of how undue reliance on eyewitness identification can lead to a wrongful conviction.(fn1) The story begins on November 3, 2007, when a woman and her son were carjacked at gunpoint.(fn2) Police were called to the scene, spotted the woman's stolen vehicle less than half a mile away, and gave chase.(fn3) The suspect eventually pulled over the vehicle, ran off on foot, and got away.(fn4) But the suspect left behind his shirt, cell phone, and phone case, which the police collected as evidence.(fn5)

The police then developed a composite sketch of the suspect based on information from the woman's son, who described the suspect as a middle-aged black man.(fn6) Ten days later, the police were called to a nearby apartment complex where a black man, Michael Marshall, had been found unconscious lying in a hallway.(fn7) The police called to the scene noticed similarity between Marshall and the composite sketch of the carjacker.(fn8) The police then called the woman's son to the scene, who positively identified Marshall as the carjacker.(fn9) On this basis, Marshall was charged with armed robbery and aggravated assault.(fn10) Facing likely conviction and up to twenty-five years in prison, Marshall pleaded guilty to theft and was sentenced to serve four years.(fn11)

From prison, Marshall reached out to exoneration advocates, who investigated his case and discovered that the carjacker's shirt, cell phone, and phone case never were subjected to DNA testing or otherwise examined or investigated.(fn12) Marshall's advocates then obtained an order requiring the evidence undergo DNA testing, and the testing exculpated Marshall and matched the DNA of another man.(fn13) After spending more than two years in prison for a crime he did not commit, Michael Marshall was finally exonerated and freed.(fn14)

Michael Marshall's story underscores the need to approach eyewitness evidence with caution, and the need to develop and rely on other types of evidence in criminal prosecutions. Marshall's story is only one of many throughout the United States involving eyewitness misidentification and wrongful conviction.(fn15) A disproportionate number of these stories involve cross-racial misidentification in particular-a witness misidentifying someone of another race.(fn16) This is consistent with experimental research demonstrating that the risk of mistaken identification is uniquely high in the context of cross-racial identification, on top of any other factors contributing to eyewitness error.(fn17) In Michael Marshall's case, the race of the police officers and victim who misidentified Marshall is not publicly available information, but it would not be surprising to find that these individuals were white, for reasons more fully explained below.

Beyond causing wrongful convictions, cross-racial misidentification also contributes to racial disparity in the criminal justice system.(fn18) Washington's Task Force on Race and the Criminal Justice System recently documented racial disparities throughout Washington's criminal justice system and advocated for ongoing dialogue to address those disparities.(fn19) The Task Force identified cross-racial misidentification as an important aspect of the problem.(fn20) This is true for numerous reasons. First, research has indicated that white persons are more susceptible to committing cross-racial misidentification than racial minorities.(fn21) Second, members of racial minority groups are more susceptible to cross-racial misidentification because potential witnesses to crimes are more likely to be white.(fn22) Third, once misidentified, racial minorities in Washington also face disparately higher rates of arrest, charging, and conviction, and also receive harsher sentences, even after controlling for legally relevant factors.(fn23) It should not be surprising, then, that African American men are disproportionately represented among exonerees as compared to the incarcerated population in general.(fn24) Efforts to address cross-racial misidentification thus fall within the broader ongoing efforts in Washington to address racial disparities in the criminal justice system.

Although eyewitness misidentification has received increasing scholarly attention in recent years as more and more wrongful convictions resulting from such misidentification have been discovered and documented,(fn25) too many persons-including police, attorneys, judges, and jurors-remain unaware of this phenomenon or its scope.(fn26) Thus, much more work remains to be done. With that in mind, this Article seeks to supplement the existing literature in a number of distinct ways. First, to promote needed incremental change and awareness, this Article focuses on cross-racial misidentification as the most pressing eyewitness problem, and focuses on two discrete court tools-expert testimony and jury instruction-that can be utilized immediately to begin addressing the problem. Second, this Article focuses on Washington State, as part of the ongoing efforts to improve Washington's criminal justice system and in light of two recent Washington State Supreme Court cases-State v. Cheatam(fn27) and State v. Allen(fn28)-which acknowledge the problem of cross-racial misidentification and establish that Washington State trial courts have broad discretion to permit expert testimony and jury instruction to address the problem. Third, this Article presents a grounded approach to misidentification issues, with an emphasis on empirical and scientific research rather than speculative theory. This approach incorporates research on the potential effectiveness of expert testimony and jury instruction to prevent the wrongful convictions that would otherwise result from eyewitness misidentifications.

This Article proceeds in six parts. Part II provides further background on the issue of eyewitness misidentification and, more specifically, cross-racial misidentification. Part III argues that, in appropriate cases, the proper admission of expert testimony and jury instruction on cross-racial misidentification can prevent wrongful convictions and improve the criminal justice system by helping jurors to properly weigh the evidence before them. Part IV explains that under State v. Cheatam, Washington trial courts have significant discretion to admit expert testimony on cross-racial misidentification-more discretion, in fact, than many in the legal community might expect. Part V explains that under State v. Allen, Washington trial courts have broad discretion to permit jury instruction on cross-racial misidentification, while the discretion to refuse such an instruction is relatively narrow. Part VI argues that Washington trial courts should exercise their discretion liberally to permit expert testimony and jury instruction on cross-racial misidentification whenever relevant, which should be supplemented with the development of a publicly available pool of qualified experts and the formal adoption of pattern instructions. Part VII advocates for broader education and reform...