BY DIANE DIMOND
How fair are criminal trials in America? How confident should we be that prosecutors have the right perpetrator, and how much weight should be put on eyewitness identification of suspects?
A growing number of states are now instructing their courts to encourage jurors to ask themselves those very questions.
Many studies have exposed the frailties of eyewitness accounts. Researchers at the Innocence Project, for example, conclude that faulty eyewitness identifications played a role in more than 70 percent of cases in which DNA tests have proved the wrong person was convicted of a crime. As compelling as it is to watch someone point across a courtroom and declare “There is the person I saw,” such testimony is notoriously unreliable.
There are a lot of reasons for a witness to innocently misidentify a suspect. The witness may have experienced extreme stress at the crime scene, only caught a fleeting glance of the criminal, participated in a flawed police lineup or be of a different race than the suspect.
Now wait. Before you leap to the conclusion that misidentification must come from inborn racism, let your mind consider that it could be something much different.
Follow me here.
If a criminal has an outstanding characteristic — say a prominent birthmark on the face, a missing limb or extreme height — he or she is easier to remember. But if the criminal has regular, unmemorable features, it is human nature to not remember the person very vividly. And when it comes to people of other races, psychologist Lawrence T. White says, “they all look alike (to us) because we unwittingly look at the wrong things.”
This phenomenon even has a name. Psychologists call it “own-race bias” or “the other-race effect,” and it’s been demonstrated in dozens of laboratory experiments, according to White. It is born not of racism but of the inability of any one ethnic group to easily recall the features of someone from a different group.
Faces are not alike. Each tribe has differing characteristics. Black people, for example, display many variations in skin tone, but their hair and eyes are most often dark. White people, on the other hand, don’t usually have stark differences in skin tone but display more variations in hair and eye color. Let’s take this train of thought one step further.
Clinical psychology professor Gordon Nagayama Hall says people subconsciously categorize themselves as the “in group” — be they white, Asian, African-American, etc. — and everyone else as being in the “out group.”
“Research demonstrates that we are better at telling people apart in our own group than in outgroups,” writes Nagayama Hall. “Most people in the United States are White, which makes people of color the outgroup. So, most of the time, the people who are mistaken for someone else are people of color.” This underscores the Innocence Project’s finding that the majority of the misidentification cases were IDs made by whites against blacks. Often, Caucasians simply remember they saw a “black” person but can’t recall the specifics of the suspect’s face.
This thought process is not exclusive to whites. Consider what CNN’s black anchorman Don Lemon has said: “You go to Brooklyn, and everybody’s got a beard and a plaid shirt. They may be able to tell each other apart, but they kind of all look alike to me.”
The only thing that will change this phenomenon, say the scientists, is more intermingling of ethnic groups. The more we interact with one another the less likely it will be that we will have trouble identifying those from our out-group. Only then can we shed the attitude that “they all look alike.”
I explain all this because the public should understand why courts around the country are making changes to how trials are conducted and how jurors are instructed before they go into deliberations.
The New York Court of Appeals is the latest to tell lower courts they must give the defense an opportunity to present experts who can inform jurors about the inherent problems with cross-race witness identification. State courts in Hawaii, Massachusetts and New Jersey have already adopted similar rules. And courts in Washington state and Georgia, along with federal courts in Detroit, Indianapolis and the District of Columbia now allow the trial judge to decide whether to instruct jurors about flaw-filled eyewitness accounts before they adjourn to the deliberation room. Let’s hope other states’ courts follow this trend.
The Pledge of Allegiance states that we are one nation, under God, indivisible, with liberty and justice for all. But justice can be achieved only when we admit our cultural frailties and take them into account when passing judgment on others.
Rockland resident Diane Dimond is a syndicated columnist, author, regular guest on TV news programs, and correspondent for Newsweek/Daily Beast. Visit her at www.DianeDimond.net or reach her via email [email protected].