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Staggering Injustice

Experts Say Cross-Racial Eyewitness Identification Errors Are Widespread and Contribute to Thousands of Wrongful Convictions

by Derek Gilna

In a time where much of the American criminal justice system is justifiably under intense pressure to eliminate potential racial bias, there is at least one issue that could be resolved without wholesale changes, expense, or political disagreement. That issue is the elimination of the shocking number of wrongful convictions based upon faulty cross-racial eyewitness identifications.

This problem occurs when individuals of one race falsely identify/accuse individuals of another race of criminal action that leads to their arrest, conviction, and imprisonment. Statistics show that individuals – or eyewitnesses – of one race make many more misidentifications of individuals of other races than of individuals of the witness’ own race. Researchers have attempted to quantify the number of wrongful convictions due to Cross Race Effect (“CRE”) at approximately 5,000 to 10,000 a year, a staggering figure. What is the reason for this phenomenon, and what actions are legislatures, prosecutors, and judges doing to eliminate it?

Unlike many other racially based criminal justice issues, the bulk of such misidentifications do not appear to be willful, although the bulk of the wrongful convictions appear to have fallen more heavily upon the Black community. Misidentifications appear to be based on the fact that humans seem to be more able to differentiate and identify previously unknown individuals of their own race than individuals of races different than their own, and that ability is true of all races, to varying degrees.

Psychiatrists, psychologists, and other social scientists have repeatedly studied the issue and share the opinion that the phenomenon, in fact, exists. Many legal professionals have suggested that there is enough scientific basis for it that there should be form jury instructions issued regarding the peril of relying too heavily on cross-racial identification.

It’s unfortunate this seemingly obvious solution has run into opposition from prosecutors who fear that such an instruction will make it more difficult to win convictions in cases where the victim and alleged offender might be of different races.

Most courts have required the use of expert testimony to negate the effects of CRE but have met with prosecutorial opposition.

Most experts agree that the own-race bias in cross-racial identifications creates yet another form of racial discrimination in a criminal justice system in which most defendants are Black or brown. Despite the traditional safeguards available to the defense, such as cross examination, argument, and summation, the problem persists, and defendants are too often at the mercy of overworked public defenders or appointed attorneys who might not be vigorous enough advocates to successfully counter CRE.

The Boone Case

Otis Boone, a Black man, was convicted of two robberies; the identification evidence for each conviction was solely the testimony of the two victims, both of whom were White. The trial judge denied the defense request for a jury instruction that “some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race.” Boone was sentenced to 25 years, which was reduced by the intermediate appellate court to 15 years.

Various prisoner rights groups weighed in on the case, which returned to court. The American Psychological Association (“APA”) weighed in on the problem of CRE and filed a brief on Boone’s behalf:

“APA’s brief explains that the limitations of eyewitness identification in general, and the relative unreliability of cross-race identification, have been the subject of significant psychological research. APA also explains why the failure to give jury instruction on cross-race identification creates a substantial risk of wrongful conviction. Finally, APA’s brief concludes with a discussion of why the trial judge’s failure to give the cross-race instruction was not harmless.”

The Court of Appeals of New York (highest court in the state) opinion that resulted in Boone being freed came down strongly in favor of the suggested CRE jury instruction. The Court was moved by the weight of evidence to make the following observation:

“In light of the near consensus among cognitive and social psychologists that people have significantly greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race, the risk of wrongful convictions involving cross-racial identifications demands a new approach.”(New York Court of Appeals, Judge Eugene Fahey, December 2017.)

In Boone, the Court of Appeals held that when identification is at issue during a criminal trial and the identifying eyewitness and defendant appear to be of different races, upon request, the defendant is entitled to a charge on cross-racial identification. People v. Boone, 91 N.E.3d 1194 (N.Y. 2017). This is now known as the “Boone Rule.”

Mistaken Identification
Confounds Investigations

It should come as no surprise that the New York-based Innocence Project, which has spearheaded the nationwide initiative of exonerating the wrongfully convicted based on advances in the use of DNA evidence, would emerge as a powerful advocate in favor of reforms that would eliminate or mitigate CRE.

As noted by that organization:

“Mistaken identifications are the leading factor in wrongful convictions. Mistaken eyewitness identification contributed to approximately 69% of the more than 375 wrongful convictions in the United States overturned by post-conviction DNA evidence. Inaccurate eyewitness identifications can confound investigations from the earliest stages. Despite solid and growing proof of the inaccuracy of traditional eyewitness ID procedures – and the availability of simple measures to reform them – traditional eyewitness identifications still are among the most used and compelling evidence brought against criminal defendants.”

Certainly, there are many more wrongful convictions based upon faulty eyewitness identifications that have not yet been set aside. “[M]istaken identifications have been responsible for more miscarriages of justice than any other factor – more so perhaps than all other factors combined,” according to John C. Brigham in his study, “Disputed Eyewitness Identification Evidence,” published in 1999. That study built upon nearly 80 years of scholarship in the area, beginning with Edwin M. Borchard, who wrote, “Convicting the Innocent,” published in 1932. Borchard noted 65 instances of wrongful conviction, finding that mistaken eyewitness identification was one of the most prominent causes.

While courts have on many occasions discussed the many issues mistaken eyewitness testimony poses, little has been done to prevent or correct wrongful convictions.

Nonetheless, there is no shortage of state and federal precedent on the issues of the reliability of eyewitness identification and the ways of avoiding tainting the process of victim identification of a suspect. However, studies have shown that crime witnesses and victims’ testimony, even if innocently mistaken, can be compelling and convincing to a trier of fact, as noted by U.S. Supreme Court Justice William O. Douglas, who wrote:

“[T]here is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”

In one sociological study, which examined the power of eyewitness testimony, jurors in a simulated criminal trial were presented with facts and conditions and then were asked to vote on whether to convict the defendant. As expected, the study found that only 18% of jurors were in favor of conviction when there were no eyewitnesses to the crime, while 72% voted to convict when at least one credible witness saw the crime occur. What’s extremely troubling was the fact that 68% of jurors still voted to convict the defendant even when the eyewitness was discredited or impeached by defense counsel. The influence of eyewitness identification on the trier of fact cannot be overstated.

Misguided Reliance
on Eyewitnesses

In criminal trials, this misguided reliance upon the accuracy of eyewitness testimony is based upon two issues: (1) human memory is inaccurate and changes over time, rendering eyewitness testimony inaccurate; and (2) juries generally believe and rely heavily on eyewitness testimony when the witness appears confident in his or her recollection. Combine this with the “one-witness rule,” which in some jurisdictions allows a conviction based on a single witness’ identification of the defendant despite the lack of any corroborating evidence, and the likelihood of a wrongful conviction increases substantially.

Researchers agree that human memory is complex, and the procedural aspects of memory are often misunderstood. Several courts over the years have commented unfavorably on the unreliability of eyewitness testimony, e.g., United States v. Wade, 388 U.S. 218 (1967) (“[T]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”); White v. State, 926 P.2d 291 (Nev. 1996) (“Courts have long recognized that eyewitness testimony is highly unreliable.”); State v. Cromedy, 727 A.2d 457 (N.J. 1999) (citing Jackson v. Fogg, 589 F.2d 108 (2d Cir. 1978)) (“[C]enturies of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect. Of all the various kinds of evidence it is the least reliable, especially where unsupported by corroborating evidence.”)

“There is no significant division of opinion on the issue. The studies lead inexorably to the conclusion that human perception is inexact and that human memory is both limited and fallible.” Cromedy, 727 A.2d at 461 (N.J. 1999) (“[F]or more than forty years, empirical studies concerning the psychological factors affecting eyewitness cross-racial or cross-ethnic identifications have appeared with increasing frequency in professional literature of the behavioral and social sciences.”) Nonetheless, the practice of convicting individuals on the basis of such highly dubious identifications continues, with little guidance from higher courts.

High Court Falls Short

Unfortunately, the U.S. Supreme Court has not yet responded to the overwhelming findings by researchers on the issue of CRE, failing to articulate any jurisprudence that might provide lower courts with some framework to avoid, or at least mitigate the effects of, the CRE problem. Instead, most of the High Court’s eyewitness-related cases focus on misconduct in arranging suggestive eyewitness line-ups, which unfairly focus on a specific individual.

The constitutional standard for admission of eyewitness testimony was articulated by the U.S. Supreme Court in Manson v. Brathwaite, 432 U.S. 98 (1977). In that case, the Court held that if an identification procedure is unnecessarily suggestive, the evidence should be excluded unless the prosecutor can show through the totality of the circumstances that the identification is nevertheless still reliable. In determining whether the evidence is admissible, a court may consider the opportunity of the witness to view the perpetrator, the witness’ degree of attention, the accuracy of the witness’ description, the witness’ degree of certainty, and the time elapsed between the crime and the identification. In the decades since, the Supreme Court has provided little additional guidance regarding factors that make a lineup unnecessarily suggestive.

The Supreme Court also has never directly addressed the strong scientific evidence in favor of the existence of CRE. This lack of direction is reflected in the often conflicting opinions issued by the federal circuits, which purport to recognize the problem of CRE but often fail to reverse convictions when the issue has been raised for the first time on appeal, refusing to find “plain error” in all but the most egregious cases. As noted by Michael H. Hoffheimer, whose article, “Requiring Jury Instructions on Eyewitness Identification Evidence at Federal Criminal Trials,” exhaustively explores the complexity of federal rulings on the subject.

“Although most circuits have approved of identification instructions, they have proposed two distinct kinds of instructions. Both kinds are designed to reduce the danger of wrongful conviction, but significant differences in operation exist between the two. Particularized identification instructions direct factfinders to consider problematic features of primary identification, such as the circumstances of the initial observation, the mental or emotional condition of the witness at the time of observation, and previous contact between the eyewitness and the person identified.”

Hoffheimer suggests that, “the burden of proving identity seeks to reduce the risk of wrongful conviction by imposing the risk of non-persuasion” should be put on the government. He also notes that, otherwise, there is too often pressure on the jury to convict the accused, even if the eyewitness evidence has been discredited.

“The circuits have affirmed robbery and armed robbery convictions, despite omission of identification instructions, in over 30 cases. Only one such conviction was reversed. They have affirmed convictions of assault, arson, kidnapping, rape, and homicide, despite omissions of identification instructions.”

The clear implication is that the U.S. Circuit Courts of Appeals have been reluctant to overturn convictions in cases where violence is present, putting even more importance on eliminating CRE from the criminal justice equation.

The William Jackson Case

One especially vivid example of the potential for injustice due to CRE is the case of William Jackson who was wrongfully accused in 1978 of two rapes and served five years in Ohio prisons before the true offender was arrested. Both men were Black with trimmed Afros and similar body types, but facially, they bore no similarity to each other. Two White rape-victim eyewitnesses positively identified William Jackson as their assailant, yet both were categorically wrong. And despite alibi witnesses, he was convicted by an all-White jury. He was later granted over $700,000 in compensation for his wrongful conviction by the Ohio legislature.

Jackson’s plight highlights the issue of what critics of CRE call the fallacy of recognition confidence. “Confidence is a metacognitive assessment of accuracy that takes place at the time of, or following, the memory judgment, and is also an important factor in the courtroom,” as noted by researchers in 2006. But additional research has shown that “post-recognition confidence is an inconsistent predictor of accuracy in face recognition.” Additional research in the area shows that, once again, racial bias is not a factor in the misidentification, but rather, unfamiliarity of one race in the facial characteristics of a race not their own, which results in the witness failing to properly process and accurately recall exactly what they saw. In technical terms, this is described as an “encoding difference,” which enables more precise differentiation and results in a more accurate memory of an incident. Thus, individuals with more exposure to individuals of races different from their own do not appear to be as likely to fall victim to CRE.

The Michael Marshall Story

The story of Michael Marshall presents a chilling example of how undue reliance on eyewitness identification can lead to a wrongful conviction. On November 3, 2007, a woman and her son were carjacked at gunpoint. Police were called to the scene, spotted the stolen vehicle, and gave chase. The suspect got away but left behind his shirt, cellphone, and phone case. 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. 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. The police called to the scene noticed similarities between Marshall and the composite sketch of the carjacker. The police then called the woman’s son to the scene, who positively identified him as the carjacker.

Marshall was charged with armed robbery and aggravated assault. Fearing a 25-year term, he was induced to plead guilty to the reduced charge of theft and served only four years. While in prison, he convinced exoneration advocates to investigate his case, and they found that the shirt, phone, and phone case had never been tested for DNA evidence. Subsequent testing proved Marshall to be innocent and led to the arrest of the true perpetrator.

The list goes on. In November 1979, a White 26-year-old woman and her male companion were abducted at gunpoint by two Black men. The perpetrators raped the woman and debated killing her before leaving her alive. The victim later identified a man named Cornelius Dupree as one of her attackers. Largely based on this eyewitness identification, Dupree was convicted and sentenced to spend 75 years in prison. He professed his innocence throughout the trial and continued to do so over the course of the 30 years he spent in prison. In 2010, he was exonerated on the basis of DNA evidence after being released on parole.

Dupree’s case is just another example of the problem of relying upon the accuracy of eyewitness facial memory. Since DNA testing was first used in post-conviction appeals, over 270 people have been exonerated, and the majority of these involved eyewitness misidentification. Cases such as these, where eyewitnesses do not accurately recognize the faces of perpetrators, call out for a serious consideration of how the state of the art in science might be used to improve our criminal justice procedures so that not a single additional innocent person will spend a day in prison due to the misidentification of eyewitnesses.

In yet another case where a Black person was victimized by CRE, in 1997 Nathan Brown was putting his young daughter to sleep when the police arrested him based upon the statement of a young White woman who said she had been assaulted by a shirtless Black man wearing black shorts with strong body odor walking through her apartment’s courtyard. Minutes later, the police took Brown outside and put him in the patrol car for a one-on-one “showup.” They brought him out by himself to see the victim wearing black shorts without a shirt, and she quickly identified him as her attacker, even though he lacked a strong body odor. The victim explained later that she believed he had showered right after the attack, meaning he was her attacker.

At trial, Brown testified on his own behalf, stating that he was home at the time of the attack caring for his “fussy infant daughter,” which was corroborated by four family members. He was still convicted of attempted aggravated rape and sentenced to 25 years in prison solely on the basis of the victim’s identification. In June 2014, Brown was exonerated of the crime when DNA evidence revealed that he could not have been the attacker. He spent nearly 17 years in prison for a crime that he did not commit after being positively identified by the victim.

These are only a few of the many wrongful convictions resulting from CRE. While the public is rightfully outraged at any hint of racial bias in the criminal justice process, the devastating effects of CRE have largely escaped public notice and scrutiny. Criminal justice experts have estimated that currently up to 6% of incarcerated persons in the U.S. are factually innocent, which would translate nationwide to approximately 140,000 wrongfully imprisoned individuals.

Ruinous Outcomes

The cost of this injustice, both financially and socially, is beyond calculation. Innocent persons who are wrongly convicted are deprived of their liberty; burdened with substantial personal debt; suffer emotional, psychological, and physical harm; and face stigmatization, lack of support, and difficulty finding employment upon release. In addition, they must overcome substantial legal and administrative hurdles to obtain any financial compensation. Governments are notoriously reluctant to admit mistakes and resist the payment of even modest compensation for even the most horrific injustices.

Meanwhile, the actual perpetrators who escape conviction often proceed to commit additional crimes and harm more victims. Wrongful convictions also seriously undermine public confidence in the administration of justice and inflict hundreds of millions of dollars in financial costs on the public. Eyewitness misidentification is a serious problem within the criminal justice system that must be addressed.

However, it is important not to overstate the unreliability of eyewitness identification as an entire category of evidence. This is not to suggest that all eyewitness identifications are flawed. If one-third are inaccurate, that means that two-thirds are correct. Further, the reliability of such evidence may depend on the circumstances. For example, research and exonerations implicating mistaken identification tend to involve identifications of strangers (e.g., a victim identifying an unknown attacker in a lineup or a third party identifying an unknown perpetrator from a photo array), so the issue of eyewitness misidentification tends to be less relevant for cases in which the parties know each other. Nevertheless, the percentage of mistaken identification in stranger-involved cases that contribute to wrongful convictions is still unacceptably high.

What about the use of expert testimony to eliminate some of the abuse? Although this is a growing trend, many courts still resist the practice. Given this deference to the trial courts, many federal district courts still do not allow expert testimony regarding the cross-racial effect because it typically “consists of generalized notions regarding the flaws of eyewitness testimony.” Evidentiary rules require that the expert testimony relate to the specific issues of the case.

To mitigate the problem, it has been suggested that federal courts should institute a per se rule granting an expert witness on the unreliable nature of cross-racial eyewitness identification in cases where the defendant is represented by a federal defender or indigent counsel and the issues of witness identification is central to the case. The U.S. Department of Justice has shown that it is at least willing to acknowledge the problem, but it has not instituted a policy in favor of expert testimony.

There is no question that the critical issue of CRE as it relates to indigent defendants requires a per se exception, as juries should be informed of the issues of such identifications to afford these defendants substantive due process. As previously indicated, eyewitness testimony and courtroom identifications are extremely influential, and juries are not advised of the circumstances surrounding the testimony. To ensure fair trials, courts must give juries some guidance about how much weight to give this testimony, especially when it is the primary piece of evidence connecting a defendant to a crime.

However, in courts that allow expert witness testimony, indigent defendants are less likely to receive its benefit because they cannot afford to hire experts, and public defenders and appointed attorneys are often reluctant to petition the court for funds to pay such experts.

The Criminal Justice Act, which provides counsel for indigent defendants, outlines an additional application that indigent defendants must submit to obtain an expert: Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court … shall authorize counsel to obtain the services.

The Hurdle to Bring an Expert

In the context of eyewitness testimony, the U.S. Court of Appeals for the Ninth Circuit has held that “[a]ny weaknesses in eyewitness identification testimony can ordinarily be revealed by counsel’s careful cross-examination of the eyewitnesses.” Therefore, to bring in expert testimony, “the defendant must establish why such cross-examination is inadequate and why an expert is required.” United States v. Labansat, 94 F.3d 527 (9th Cir. 1996).

Cross-examination is simply insufficient to protect an indigent defendant when the eyewitness identification is the primary piece of evidence against them. Given the weight that juries place on these identifications, they should be alerted to the documented reliability issues surrounding them. When a court-certified expert is allowed to testify to these problems, juries will be more likely to bring them up during deliberations and to weigh identifications accordingly.

The State of Maryland has proposed to solve the CRE problem with its proposed jury instruction:

“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. You should consider that in ordinary human experience, some people may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. You may also consider whether there are other factors present in this case which overcome any such difficulty of identification. [For example, you may conclude that the witness had sufficient contacts with members of the defendant’s race that [he][she] would not have greater difficulty in making a reliable identification.]1 This instruction is intended to supplement standard jury instructions identifying factors to be considered in evaluating the reliability of testimony.”

The Innocence Project has also published its suggestions to help eliminate or mitigate the effects of CRE, addressing the standard witness lineup, noting:

“In a standard lineup, the lineup administrator typically knows who the suspect is. Research shows that administrators often provide unintentional cues to the eyewitness about which person to pick from the lineup. In a standard lineup, without instructions from the administrator, the eyewitness often assumes that the perpetrator of the crime is one of those presented in the lineup. This often leads to the selection of a person despite doubts. In a standard lineup, the lineup administrator may choose to compose a live or photo lineup where non-suspect ‘fillers’ do not match the witness’s description of the perpetrator or do not resemble the suspect. This can cause the suspect to stand out to a witness because of the composition of the lineup. This unintentional suggestion can lead an eyewitness to identify a particular individual in a photo array or lineup.”

The Innocence Project also suggested strict guidelines for the taking of a statement from an eyewitness regarding their level of confidence of witness identification and made other suggestions to improve the accuracy of eyewitness identifications with implications for CRE problems:

“The Innocence Project endorses a range of procedural reforms to improve the accuracy of eyewitness identification. These reforms have been recognized by police, prosecutorial and judicial experience, as well as national justice organizations, including the National Institute of Justice and the American Bar Association. The benefits of these reforms are corroborated by over 30 years of peer-reviewed comprehensive research.”

These suggestions include a “double-blind” lineup, “in which neither the administrator nor the eyewitness knows who the suspect is. This prevents the administrator of the lineup from supplying involuntary or intentional verbal or nonverbal cues to influence the eyewitness to pick the suspect.” It would also incorporate instructions by the lineup administrator “that deter the eyewitness from feeling compelled to make a selection. They also prevent the eyewitness from looking to the lineup administrator for feedback during the identification procedure. One of the recommended instructions includes the directive that the suspect may or may not be present in the lineup.”

Another suggestion for photo lineups includes using non-suspect photos that do not draw undue attention to the suspect. Confidence statements should be taken right after a lineup, articulating the level of confidence the eyewitness has in the identification made. An electronic record of the lineup should be made. Several states have instituted these reforms, including California, Colorado, Connecticut, Georgia, Louisiana, Maryland, Massachusetts, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, and Texas.

Although the problem of CRE is well-researched and known to all members of the criminal justice community, the problem is by no means resolved. Even though the limitations of cross-racial eyewitness identifications have continued to result in thousands of wrongful convictions and imprisonments, the U.S. Supreme Court and most state courts have refused to consistently impose limitations on these types of identifications. While it is recognized that eyewitness identifications are a valuable tool for police and prosecutors to use to solve crimes, reforms are needed to ensure that their use is proper – and promotes accurate identifications.

Some state courts have started to implement some reforms, and police departments can supplement these measures with practices like double-blind procedures and the sequential presentation of lineups designed to ensure that the correct suspect is arrested.

Perhaps Justice Harlan said it best when he wrote in In re Winship, 397 U.S. 358 (1970) (Harlan, J., concurring): “[I]t is far worse to convict an innocent man than to let a guilty man go free.” Justice Harlan’s observation regarding such a “fundamental value determination of our society” compels Congress, the courts, and the legal community to eliminate CRE and its taint from criminal prosecutions and to ensure that even the indigent are able to access the expert assistance needed to overcome the destructive effect it has had on minority communities and eliminate the scourge of wrongful convictions that CRE leaves in its wake. 

 

Sources: Southall – A Black Man Spent 7 Years in Prison. Then a Court Changed the Rules on Racial Bias. (2019); Cross-Race Effect in Eyewitness Identification (n.d.); Innocence Project – Eyewitness Identification Reform (n.d.); Folley – Two Black Men Wrongfully Convicted of Murder Freed After 43 Years (2019); Equal Justice Initiative – Wrongful Convictions (n.d.); Sturgis – Troy Davis Case Shows Need for Eyewitness Identification Reform (2011); Medwed – The Hallmarks of Innocence: Eyewitness Misidentification (2019); CBS News – How Faulty Eyewitness Testimony Can Lead to Wrongful Convictions (2019); Benson – The Problem with Eyewitness Identification (2014); Australian National University – Early Exposure Key to Recognising ‘Other-Race’ Faces (2019); Lopez and Zarracina – Study: Black People Are 7 Times More Likely Than White People to Be Wrongly Convicted of Murder (2017); Wilson, Hugenburg, and Bernstein – The Cross-Race Effect and Eyewitness Identification: How to Improve Recognition and Reduce Decision Errors in Eyewitness Situations (2013); Connelly – Cross-Racial Identifications: Solutions to the “They All Look Alike” Effect (2015); Ryan – Alleviating Own-Race Bias in Cross-Racial Identifications (2015); Sporer – Recognizing Faces of Other Ethnic Groups: An Integration of Theories (2001).

 

Additional sources: Brigham, Meissner, and Mitchell – The Influence of Race on Eyewitness Memory (2007); Bornstein, Laub, Meissner, and Susa – The Cross-Race Effect: Resistant to Instructions (2013); Flevaris and Chapman – Cross-Racial Misidentification: A Call to Action in Washington State and Beyond (2015); People of the State of New York v. Boone – Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. (2017); Hoffheimer – Requiring Jury Instructions on Eyewitness Identification Evidence at Federal Criminal Trials (1989); Albright – Why Eyewitnesses Fail (2017); O’Connor – Effects of Judicial Warnings About Cross-Race Eyewitness Testimony on Jurors’ Judgements (2013); Reedy – Witnessing the Witness: The Case for Exclusion of Eyewitness Expert Testimony (2011); Havard, Memon, and Humphries – The Own-Race Bias in Child and Adolescent Witnesses: Evidence form Video Line-Ups (2017); Young, Hugenberg, Bernstein, and Sacco – Perception and Motivation in Face Recognition: A Critical Review of Theories of the Cross-Race Effect (2011); Hourihan, Benjamin, and Liu – A Cross-Race Effect in Metamemory: Predictions of Race Recognition Are More Accurate for Members of Our Own Race (2012); Gwinn, Barden, and Judd – Face Recognition in the Presence of Angry Expressions: A Target-Race Effect Rather Than a Cross-Race Effect (2014); Johnson – Cross-Racial Identification Errors in Criminal Cases (1984).

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