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Publication Title

Washington University Jurisprudence Review

Abstract

Over the past 80 years, courts, social scientists, and legal scholars have come to agree that eyewitness testimony is largely unreliable due to a variety of confounding factors. One prominent factor that makes eyewitness testimony faulty is own-race bias; individuals are generally better at recognizing members of their own race and tend to be highly inaccurate in identifying persons of other races. This instance, where a witness of one race attempts to identify a member of another race, is referred to as a cross-racial identification. Own-race bias in cross-racial identifications creates racial discrimination in the American judicial system, where a majority of defendants in criminal cases are minorities. Courts have traditionally ignored the problem of own-race bias in the courtroom, believing that traditional safeguards such as cross-examination and summation effectively resolve racial discrimination in the judicial system.

Critical race theorists, however, argue that this response not only fails to address own-race bias, but actually contributes to racial discrimination by reinforcing ordinariness–the idea that racism and racial discrimination are ordinary experiences, not abnormalities. In response, academics have proposed multiple solutions, including allowing expert testimony, issuing jury instructions, or eliminating eyewitness testimony altogether, to address the problem of own-race bias. Applying ordinariness, and balancing the concerns of the judiciary, the optimal solution to alleviate own-race bias is to issue a jury instruction. I argue, though, that the few cross-racial identification jury instructions that are currently in place have critical flaws. Applying critical race theory and, more specifically, ordinariness, I argue that an optimal jury instruction must be mandatory in all situations where a cross-racial identification has occurred, drafted using objective language, and issued before the identifying witness testifies against the defendant and separate from the general eyewitness testimony jury instruction.

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