WWaasshhiinnggttoonn UUnniivveerrssiittyy JJuurriisspprruuddeennccee RReevviieeww Volume 8 Issue 1 2015 AAlllleevviiaattiinngg OOwwnn--RRaaccee BBiiaass iinn CCrroossss--RRaacciiaall IIddeennttiifificcaattiioonnss Bryan S. Ryan Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_jurisprudence Part of the Civil Rights and Discrimination Commons, Courts Commons, Jurisprudence Commons, and the Legal Theory Commons RReeccoommmmeennddeedd CCiittaattiioonn Bryan S. Ryan, Alleviating Own-Race Bias in Cross-Racial Identifications, 8 WASH. U. JUR. REV. 115 (2015). Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol8/iss1/5 This Note is brought to you for free and open access by Washington University Open Scholarship. It has been accepted for inclusion in Washington University Jurisprudence Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. ALLEVIATING OWN-RACE BIAS IN CROSS-RACIAL IDENTIFICATIONS BRYAN SCOTT RYAN 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  Editor in Chief, Washington University Jurisprudence Review; J.D. Candidate (2016), Washington University School of Law; B.A. (2013), Southern Illinois University Edwardsville. I would like to thank my wife, Kelsey, my family, and my friends for their continued love, support and encouragement. 115 Washington University Open Scholarship 116 WASHINGTON UNIVERSITY JURISPRUDENCE REVIEW [VOL. 8:115 testifies against the defendant and separate from the general eyewitness testimony jury instruction. INTRODUCTION Racial tensions are an undeniable part of America’s past, but such strains are far from history. Over the last eighteen months, we have seen racialized conflicts and social unrest arise in Ferguson, Missouri; Staten Island, New York; Baltimore, Maryland; Cleveland, Ohio; and Dallas, 1 Texas, among others. Each of these incidents constitutes a single example of larger recurring national problems. Complex racial disparities exist in 2 nearly every facet of American life: legally, culturally, and socially. Race 3 affects each of our lives. Racism is not dead, and race-based 1. See The Lessons of Ferguson, THE ECONOMIST (Aug. 23, 2014), http://www.economist. com/news/leaders/21613261-there-no-excuse-rioting-smarter-policing-would-make-it-less-likely-lessons; Ray Sanchez, Choke Hold by Cop Killed NY Man, Medical Examiner Says, CNN.COM (Aug. 2, 2014), http://www.cnn.com/2014/08/01/justice/new-york-choke-hold-death/; Oliver Laughland & Jon Swaine, Six Baltimore Officers Suspended Over Police-Van Death of Freddie Gray, THE GUARDIAN (Apr. 20, 2015), http://www.theguardian.com/us-news/2015/apr/20/baltimore-officers-suspended-death-freddie- gray; Elahe Izadi & Peter Holley, Video Shows Cleveland Officer Shooting 12-Year-Old Tamir Rice within Seconds, WASH. POST (Nov. 26, 2014), http://www.washingtonpost.com/news/post-nation/ wp/2014/11/26/officials-release-video-names-in-fatal-police-shooting-of-12-year-old-cleveland-boy/; Kim Bellware, Cop Placed on Leave After Video Emerges of Brutal Arrests at Teen Pool Party, HUFFINGTON POST (June 8, 2015), http://www.huffingtonpost.com/2015/06/07/ mckinney-police-pool- party_n_7530164.html. 2. See, e.g., John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28 AM. J. CRIM. L. 207, 214 (2001) (“One in three black males between the ages of twenty and twenty-nine is under judicial supervision in this country. And while only five percent of the U.S. population, black males make up more than half of America’s prisoners.”); Catherine Hill, How Does Race Affect the Gender Wage Gap?, HUFFINGTON POST (Apr. 14, 2014), http://www.huffington post.com/catherine-hill/how-does-race-affect-the-gender-wage-gap_b_5087132.html (stating that African American women, on average, earn 12% less than white women for the same job). One of the most compelling, and currently relevant thanks to the release of the New Line Cinema biopic Straight Outta Compton, examples of racial unrest due to perceived disparities is the 1988 NWA song, “Fuck Tha Police.” In 1989, songwriter Ice Cube addressed the lyrics to the song, which discussed, rather explicitly, racial disparities perpetuated by law enforcement: “Our people been wanting to say, ‘Fuck the police’ for the longest time. If something happened in my neighborhood, the last people we’d call was the police. Our friends get killed; they never find the killer. 387 people were killed in gang activity in L.A. in 1988. Nothing was said about that. But when this Korean girl got killed in Westwood, a white neighborhood, now it’s a gang problem. As long as [black Americans] was killing each other, there wasn’t nothing said.” John Leland, Kick the Ballistics, SPIN, Sept. 1989, at 12. 3. See generally Criminal Justice Fact Sheet, NAACP (2015), http://www.naacp.org/pages/ criminal-justice-fact-sheet (discussing vast difference in incarceration rates between white and minority populations); Joseph W. Rand, The Demeanor Gap: Race, Lie Detection, and the Jury, 33 CONN. L. REV. 1 (2000) (discussing gaps in credibility given to eyewitnesses based on race). https://openscholarship.wustl.edu/law_jurisprudence/vol8/iss1/5 2015] ALLEVIATING OWN-RACE BIAS 117 discrimination, both intentional and unintentional, is still rampant in 4 American culture. With the express intention of changing inherently discriminatory systems, critical race theory studies the convergence of racial biases with 5 social, political, and economic power structures. Critical race theory stands out from other social science fields, however, in its focus on individual and social narratives rather than defined factors or goals, 6 allowing critical race theorists to adopt significantly varied ideologies. As such, it is difficult to address a singular, agreed-upon tenet of critical race theory. One of the few shared opinions by the majority of critical race theorists, though, is that racism and racial discrimination are “ordinary, not 7 aberrational” experiences. This belief, referred to as “ordinariness,” argues that race, while generally acknowledged, is not specifically 8 understood within society. Our failure to consider the specific effects of race makes both racism and racial discrimination, especially unintentional 9 inequities, especially difficult to cure. In contrast to ordinariness, the judiciary has consistently applied the theory of colorblindness—a formal legal conception of equality that 10 “insists on treatment that is the same across the board.” Because 4. RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE THEORY: AN INTRODUCTION 26 (2d ed. 2012) (“Some have even managed to convince themselves that with the election of Barack Obama, we have arrived at a post-racial stage of social development.”). As the authors note, “Studies show that blacks and Latinos who seek loans, apartments or jobs are much more apt than similarly qualified whites to suffer rejections, often for vague or spurious reasons . . . chief executive officers, senators, surgeons, and university presidents are almost all white. Poverty, however, has a black or brown face: black families command, on the average, about one-tenth of the assets of their white counterparts . . . People of color lead shorter lives, receive worse medical care, complete fewer years of school, and occupy more menial jobs than do whites.” Id. at 11–12. 5. Id. at 3. It is important to differentiate between racism, “a belief that race is the primary determinant of human capacities in fixed racial patterns of superiority and inferiority,” and race discrimination, “treating members of different races differently, regardless of whether racism is the antecedent.” Martha Minow, Law and Social Change, 62 UMKC L. REV. 171, 178 (1993). While the word “racism,” is retained in quoted material in the text, the primary focus of this Note, own-race bias, is an example of race discrimination. 6. DELGADO & STEFANCIC, supra note 4, at 7 (“[N]ot every writer would subscribe to every tenet set out in this [discussion of critical race theory].”). 7. Id. (“[R]acism is . . . ‘normal science,’ the usual way society does business, the common, everyday experience of most people of color in this country.”). 8. Id. at 8. 9. Id. 10. Id. The theory of colorblindness is taken from Justice Harlan’s famous dissent in Plessy v. Ferguson, 16 S. Ct. 1138 (1896), in which he stated: “in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens.” Id. at 1146 (Harlan, J., dissenting). Justice Harlan’s dissent was cited in several major cases throughout the civil Washington University Open Scholarship 118 WASHINGTON UNIVERSITY JURISPRUDENCE REVIEW [VOL. 8:115 colorblindness does not address the differing circumstances and specific problems minorities face, it can “remedy only the most blatant forms of 11 discrimination,” such as intentional racism. Critical race theorists have pontificated that colorblindness not only ignores less obvious forms of discrimination, but “when applied to the complexity of civil society, 12 actually materializes into a disguised form of racial privileging.” Unintentional and inconspicuous discrimination, in this manner, continues 13 to disadvantage minorities. To remedy the specific, unseen effects of racial discrimination on 14 minorities, it is imperative to directly address race wherever possible. Increased attention to discriminatory results is especially important within the criminal justice system, where the consequence of unintentional racial bias is the loss of life and liberty for a citizen of a country founded on those very rights. Too often, Courts have found that the complicated issues of racial discrimination and prejudice fall “within the ambit of jurors’ 15 general knowledge and life experience.” This belief, that the general populace understands the complex subconscious biases and institutional prejudices that exist externally in our society and internally, to some degree, in every individual, is patently false. rights movement as the antithesis of affirmative action. E.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (“Our Constitution is color-blind.”) (citing Plessy, 16 S. Ct. 1138). 11. DELGADO & STEFANCIC, supra note 4, at 8. The writers include as examples of blatant forms of discrimination caught by “colorblind” rules the decision to hire a white college dropout over a black Ph.D. and the targeting of Latino workers through the use of an immigration dragnet in a food- processing plant. Id. 12. Harvey Gee, Cross-Racial Eyewitness Identification, Jury Instructions, and Justice, 11 Rutgers Race & L. Rev. 70, 95 (2009) [hereinafter Gee, Justice] (internal quotations marks omitted). 13. DELGADO & STEFANCIC, supra note 4, at 27 (“[I]f racism is embedded in our thought processes and social structures as deeply as many [critical race theorists] believe, then the ‘ordinary business’ of society—the routines, practices, and institutions that we rely on to do the world’s work— will keep minorities in subordinate positions.”). 14. Id. (“Only aggressive, color-conscious efforts to change the way things are will do much to ameliorate misery.”). 15. People v. Carrieri, 777 N.Y.S.2d 627, 628 (N.Y. Sup. Ct. 2004). See, e.g., Burgess v. United States, 953 A.2d 1055, 1059 n.5 (D.C. 2008) (“Interracial identification . . . [is not] beyond the ken of a jury to figure [out]. . . . Whether it’s white people or black people or Asians . . . lots of people understand that when you are making an identification across racial lines, it’s harder than within racial lines.”); State v. Cromedy, 727 A.2d 457, 463–64 (N.J. 1999) (refusing to allow expert testimony because difficulty in accurately identifying members of another race is a “commonsense view”). See also Joy L. Lindo, New Jersey Jurors Are No Longer Color-Blind Regarding Eyewitness Identification, 30 SETON HALL L. REV. 1224, 1252 (2000) (“The [Cromedy] court specifically disallowed expert testimony because of the widely held commonsense view that members of one race have greater difficulty in accurately identifying members of a different race—thus concluding that expert testimony on the topic would not assist the jury in any meaningful way.”) (internal quotation marks omitted). https://openscholarship.wustl.edu/law_jurisprudence/vol8/iss1/5 2015] ALLEVIATING OWN-RACE BIAS 119 This lack of public understanding regarding intricate racial issues becomes clear when analyzing cross-racial identifications. Cross-racial identifications are a form of eyewitness testimony in which the witness 16 and the identified individual are different races. Cross-racial identifications have been shown to be particularly unreliable due to “own- race bias,” the unintentional tendency of individuals to less accurately identify members of other races. There has been significant research indicating that juries do not understand the science behind eyewitness testimony generally. It is therefore unreasonable to assume that jurors comprehend the sub-factors (such as own-race bias) that affect eyewitness accuracy in specific circumstances. Juries, as a result of their lack of understanding, occasionally rely on faulty testimony, leading to wrongful 17 convictions. As minorities are per capita more likely to be brought into the courtroom as criminal defendants, wrongful convictions based entirely or in part on faulty cross-racial identifications almost certainly disproportionately affect persons of color.18 According to the rationale of ordinariness, a more race-specific 19 approach must be taken to correct this unintentional discrimination. This Note will apply the theory of ordinariness to address the fallibility of cross-racial identifications and assess potential solutions to alleviate own- race bias in these situations. Critical race theorists have not directly addressed cross-racial identification jury instructions, thus much of this analysis will hypothesize how critical race theorists would react to the solutions and situations addressed. 16. See Smith v. State, 880 A.2d 288, 294 (Md. 2005). 17. Juries often feel the need to convict an identified party due to a moral sense of justice. See Rutledge, supra note 2, at 208 (“Juries naturally want to punish [someone for] a vicious crime, [and] may well be unschooled in the effects that the subtle compound of suggestion, anxiety, and forgetfulness in the face of the need to recall often has on witnesses.”) (internal quotation marks omitted). 18. Report of the Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System, THE SENTENCING PROJECT (Aug. 2013), available at http://sentencingproject.org/doc/publications/rd_ICCPR%20Race%20and%20 Justice%20Shadow%20Report.pdf (last visited Oct. 7, 2015) (“[R]acial disparity . . . pervades the U.S. criminal justice system. Racial minorities are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences.”). See also Rutledge, supra note 2, at 212 (When viewing the issues present in cross-racial identification with the “belief that blacks are treated disparately in the criminal justice system, it is easy to see that the problem is complex and not easily allocated for or rectified.”). 19. Behavioral and Social Science has historical precedent in being used to support legal conclusions. See Cromedy, 727 A.2d at 463–64 (“The Court’s finding [in Brown v. Board. of Education, 347 U.S. 483 (1954)] was not based simply on [intuition] or common-sense . . . [but] was attributed to . . . seven social science studies.”) (internal quotation marks omitted). Washington University Open Scholarship 120 WASHINGTON UNIVERSITY JURISPRUDENCE REVIEW [VOL. 8:115 Part I of this Note will discuss the general frailty of eyewitness testimony and, more specifically, cross-racial identifications. Part II will address the four commonly proposed solutions to alleviate the cross-racial misidentifications: (1) excluding eyewitness testimony entirely; (2) relying on traditional safeguards of justice, e.g., cross-examination and summation; (3) utilizing expert testimony; and (4) implementing cautionary jury instructions. Part II will conclude that, balancing the beneficial effects of the solution per ordinariness with the willingness of the judiciary to enact a proposed remedy, cautionary jury instructions are the most feasible solution. Part III will analyze current cross-racial identification jury instructions and argue that future cautionary instructions should: (1) be mandatory in all cases where a cross-racial identification occurs; (2) use objective language; and (3) be administered separate from the general eyewitness testimony instruction and prior to the testimony which includes the cross-racial identification. I. THE FALLIBILITY OF CROSS-RACIAL IDENTIFICATIONS “[M]istaken identifications have been responsible for more miscarriages of justice than any other factor—more so perhaps than all 20 other factors combined.” For over 80 years, social scientists have 21 analyzed the fallibility of eyewitness testimony. Thanks to these researchers and the work of the Innocence Project, an organization that uses DNA evidence to exonerate wrongfully convicted persons, the faulty 22 nature of eyewitness testimony has been consistently verified. One study found that mistaken identifications factor in more than 75% of all overturned convictions, which is especially disconcerting considering the consequences of wrongful convictions: the incarceration and or death of 20. John C. Brigham et al., Disputed Eyewitness Identification Evidence: Important Legal and Scientific Issues, 36 COURT REVIEW 12 (1999) (quoting PATRICK WALL, EYEWITNESS IDENTIFICATION IN CRIMINAL CASES (1964)). 21. For one of the earliest known studies of eyewitness testimony frailty, see EDWIN M. BORCHARD, CONVICTING THE INNOCENT (1932). In his research, Borchard noted 65 instances of wrongful conviction, finding that mistaken eyewitness identification was one of the most prominent causes. Id. at xiii; see also Christian A. Meissner & John Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 PSYCHOL. PUB. POL’Y & L. 3 (2001). 22. The Innocence Project, INNOCENCE PROJECT, www.innocenceproject.org (last accessed Jan. 10, 2015); Stephen J. Saltzburg, Report to House of Delegates, 104D A.B.A. SEC. CRIM. J. 1, 6 (2008) (“Approximately three-quarters of more than 200 wrongful convictions in the United States overturned through DNA testing resulted from eyewitness misidentifications.”); see also Samuel R. Gross, Convicting the Innocent, 4 ANN. REV. L. & SOC. SCI. 173, 174–76 (2008). https://openscholarship.wustl.edu/law_jurisprudence/vol8/iss1/5 2015] ALLEVIATING OWN-RACE BIAS 121 23 innocent individuals. While courts have spent significant breath and ink discussing the many issues eyewitness testimony poses though, little has 24 been done to actually prevent or correct wrongful convictions. A. Eyewitness Testimony Justice Frankfurter famously stated in 1927 that “the identification of strangers is proverbially untrustworthy . . . the hazards of such testimony are established by a formidable number of instances in the records of 23. Sandra Guerra Thompson, Beyond a Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Identification Testimony, 41 U.C. DAVIS L. REV. 1487, 1490-91 (2008); Sandra Guerra Thompson, Wrongful Conviction Issues: Judicial Blindness to Eyewitness Misidentification, 93 MARQ. L. REV. 639, 639 (2009) [hereinafter Thompson, Wrongful Conviction] (“As of this writing, 252 people have been exonerated by means of DNA evidence, most leaving prison cells after many years in prison. These exonerations represent only the ‘tip of the iceberg’—the actual number of wrongly convicted people are undoubtedly much higher.”); see also Understand the Causes: Eyewitness Misidentification, INNOCENCE PROJECT, http://www.innocenceproject.org/understand/Eyewitness- Misidentification.php (last visited Nov. 1, 2014). 24. See generally United States v. Wade, 388 U.S. 218, 228 (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, 294 (Nev. 1996) (“Courts have long recognized that eyewitness testimony is highly unreliable.”); State v. Cromedy, 727 A.2d 457, 463–64 (N.J. 1999) (citing Jackson v. Fogg, 589 F.2d 108, 112 (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.”). See also Commonwealth v. Zimmerman, 441 Mass. 146, 154 (Mass. 2004) (citing Meissner & Brigham, supra note 21); Commonwealth v. Walker, 92 A.3d 766, 775–76 (Pa. 2014) (citing research conducted by the Amici Innocence Network and the Pennsylvania Innocence Project asserting the prominence of mistaken eyewitness identifications); State v. Long, 721 P.2d 483, 488 (Utah 1986) (“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.”). See Thompson, Wrongful Conviction, supra note 23, at 640 (“Studies led to numerous proposals for the reform of police procedures, yet we see little progress toward minimizing eyewitness identification error, a major cause of failure in our criminal justice systems.”). This lack of willingness to confront the problems inherent in eyewitness testimony is apparent in both trial and appellate courts. See id. at 642 (“The courts often overlook other indicia of reliability . . . [D]ubious eyewitness identification evidence continues to be admitted, and appellate courts continue to turn a blind eye to defense challenges based on suggestiveness and unreliability of evidence.”). And while even incremental change would be expected over time, studies of appellate holdings regarding eyewitness identification challenges are unreasonably bleak. See id. at n.22 (“A study of cases involving exonerations showed that constitutional challenges to eyewitness identifications had been rejected in 100% of the cases. . . . Apparently, even a heightened awareness of wrongful convictions and the perils of eyewitness identifications have not caused most appellate courts to review identification claims more generously.”). This leads to the ultimate conclusion that “reform in the criminal justice system will always be resisted.” Robert Buckhout, Nobody Likes a Smartass: Expert Testimony by Psychologists, 3 SOC. ACTION & L. 39, 49 (June 1976). Washington University Open Scholarship 122 WASHINGTON UNIVERSITY JURISPRUDENCE REVIEW [VOL. 8:115 25 English and American trials.” In stark contrast to Justice Frankfurter’s concession, eyewitness testimony continues to be one of the most persuasive forms of evidence to jurors. In a sociological study regarding the power of eyewitness testimony, jurors in a simulated criminal trial were presented with facts and conditions and then were asked to vote on 26 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 27 credible witness saw the crime occur. Disturbingly, though, 68% of jurors still voted to convict the defendant when the eyewitness was clearly 28 and thoroughly discredited by counsel. In criminal trials, this misplaced faith in eyewitnesses is the result of two unique, compounding problems: (1) human memory is inaccurate and changes over time, thus actual witness testimony is often inaccurate; and (2) juries tend to believe and rely heavily on eyewitness testimony when the witness appears confident 29 in her recollection. Compound this with the “one-witness rule”—which allows a conviction based upon a single witness’s identification of the defendant, despite the lack of any corroborating evidence—and the results 30 are terrifying. Human memory is complex, and the procedural aspects of memory are often misunderstood. Laymen incorrectly believe that the mind operates like a video camera, recording events as they occur and storing them for 25. Wade, 388 U.S. at 228 (quoting FELIX FRANKFURTER, THE CASE OF SACCO AND VANZETTI 30 (1927)); see also United States v. Smith, 563 F.2d 1361, 1365 (9th Cir. 1977) (Hufstedler, J., concurring) (“[Eyewitness identification] is at best, highly dubious, given the extensive empirical evidence that eyewitness identifications are not reliable.”). 26. Long, 721 P.2d at 488 (citing Buckhout, supra note 24, at 189–90). 27. Id. 28. Id.; see also Aaron H. Chiu, “We Can’t Tell Them Apart”: When and How the Court Should Educate Jurors on the Potential Inaccuracies of Cross-Racial Identifications, 7 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 415, 419 (2007) (“[J]urors generally tend to believe eyewitness accounts and take them at face value, even in ‘extremely doubtful’ circumstances.”). 29. See generally Harvey Gee, Book Review: Eyewitness Testimony and Cross Racial Identification, 35 NEW ENG. L. REV. 835 (2001) [hereinafter Gee, Eyewitness Testimony]; Cromedy, 727 A.2d 457, 461 (N.J. 1999) (“[J]urors tend to place great weight on eyewitness identifications, often ignoring other exculpatory evidence.”). 30. See Thompson, Wrongful Conviction, supra note 23; see also Rutledge, supra note 2, at 207 (“Many cases are based entirely upon uncorroborated eyewitness IDs.”). In a Maryland case, a Hispanic eyewitness made a pretrial statement identifying the defendant, who was African American, as the perpetrator. At trial, the eyewitness pointed to a different individual, the African American law student who was representing the defendant, and identified him as the perpetrator of the crime, despite the defendant being in the courtroom. The charges against the defendant were ultimately dismissed. See David E. Aaronson, Proposed Maryland Jury Instruction on Cross-Racial Identification, 3 CRIM. L. BRIEF 2 (Spring 2008). https://openscholarship.wustl.edu/law_jurisprudence/vol8/iss1/5 2015] ALLEVIATING OWN-RACE BIAS 123 perfect playback at a later date. Human memory, though, does not operate in this manner; the “human brain cannot receive and store all the stimuli simultaneously presented to it, . . . forc[ing] individuals to be selective in 31 what they perceive of any given event.” Events are recorded and stored 32 in three unique stages, each with the potential for flaws and errors. This makes memories “more like physical trace evidence, which can be altered, 33 mishandled, contaminated, or degraded.” Despite the flaws in memory, eyewitnesses are often confident in their recollection of an event. Educated members of the legal community— especially prosecutors—believe that confident witnesses are more likely to be accurate in their recollections and jurors, unsurprisingly, are equally 34 persuaded, regardless of the actual accuracy of the identification. As noted by the Sixth Circuit, “of all the evidence that may be presented to a jury, a witness’ [sic] in-court statement that ‘he is the one’ is probably the 35 most dramatic and persuasive.” Unfortunately, “the correlation between confidence and accuracy in eyewitness identifications is far lower than 36 people probably would expect.” Even under the “best of circumstances, eyewitness confidence is only a modest predictor of eyewitness accuracy,” due to confounding factors, such as own-race bias in cross-racial 37 identifications. 31. See Long, 721 P.2d at 488, 489 (citing Buckhout, Eyewitness Testimony, 15 JURIMETRICS J. 171, 172–81 (1975)); see also John C. Brigham et al., supra note 20, at 12. 32. See id. at 488–90. The “memory process” consists of three stages: 1. the acquisition of information; 2. the storage of information; and 3. the retrieval and communication of information. Id.; see also Joseph F. Savage Jr. & James P. Devendorf, Conviction After Misidentification: Are Jury Instructions A Solution?, 35 CHAMPION 30, 30 (2011) (“[T]he processes underlying eyewitness memory are dynamic and prone to error. Memory is an unconscious process that includes three stages—acquisition or encoding, retention, and recall or retrieval. Numerous physical and psychological factors can influence memory accuracy at each stage.”). 33. Savage & Devendorf, supra note 32, at 30. 34. Steven Pernod & Brian Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 PSYCHOL. PUB. POL’Y & L. 817, 817 (1995). In one study, 75% of prosecutors surveyed incorrectly believed that the eyewitness identification of a confident witness was more likely to be accurate. Id. In the same study, 56% of jury-eligible citizens reported the incorrect belief that the eyewitness identification of a confident witness was more likely to be accurate. Id. at 818. See also Rutledge, supra note 2, at 223. 35. United States v. Russell, 532 F.2d 1063, 1066–67 (6th Cir. 1976). 36. United States v. Stevens, 935 F.2d 1380, 1401 (3d Cir. 1991). 37. Savage & Devendorf, supra note 32, at 31 (internal quotation marks omitted). A plethora of psychological factors affect the accuracy and reliability of eyewitness identifications, including the “forgetting curve,” which explains how memory decreases over time, and the “feedback factor,” which theorizes that individual witnesses unconsciously reinforce mistaken identifications in discussing the case. See Gee, Eyewitness Testimony, supra note 29, at 838. For information on additional psychological variables and their effect on eyewitness identifications, see Thompson, Wrongful Washington University Open Scholarship