What is it and why is it important?
Thousands of people have spent time in prison for crimes they did not commit. Since 1989, 225 people have been exonerated after serving time in prison. Since the 1970’s, 123 people have been exonerated from death row. Eye witness misidentification, jailhouse informants that lie, poor forensic science, crime scene errors and lack of preserving evidence, prosecuting attorneys suppressing or withholding critical evidence, poor public defense attorneys, coerced confessions and flawed police work or misconduct are among the reasons why people are wrongfully convicted.
In 66 of the 216 wrongful convictions that have been overturned by DNA evidence, cross racial eyewitness identification was used to convict an innocent person. One well known case is that of Ronald Cotton who was identified by college student, Jennifer-Thompson-Canning as her rapist. Convicted in 1985, DNA evidence exonerated him a decade later.
What is Cross Racial Identification?
Sometimes called cross-race bias, other-race bias, the cross-race effect or the look alike effect, cross racial identification is when an individual from one race identifies a person from another race. The tendency for humans is to more easily recognize faces that belong to one’s own race. Social science has researched cross-racial bias for over 30 years and has proven it exists in identification. People tend to not familiarize themselves with people of other races. To non-Asian people, all Asians may look alike. Many people cannot differentiate between a Japanese, Vietnamese, Chinese or Korean.
Can you identify the different nationalities within a race?
Prodigy Investigative Group specializes in cross-racial identification cases. One such investigation we conducted was an armed robbery at a convenience store. There were three witnesses, one black and two white, who identified a Guatemalan man. Two of the witnesses referred to the Guatemalan man as Mexican. An investigation by Prodigy Investigative Group proved that none of the witnesses had regular encounters or associates that were Guatemalan. We were able to locate another witness who was Guatemalan, but not on the State’s witness list, that testified that the man arrested for the armed robbery was not the one who committed the crime. Charges were dropped and the real suspect was later arrested.
The research behind Cross Racial Identification.
Research on the cross-race effect began in 1914. It showed that people of one race tend to perceive people of other races to all look alike. Recognizing people of other races is directly connected to the familiarity or contact with that race known as contact hypotheses. Different processing mechanisms, social cognition, feature selection, and cognitive disregard factor into this. If a non-black person does not have interpersonal relationships with the black community, it is unlikely they will be able to positively identify a black they have never engaged with before. To non-white races, all blonde females may look alike. To non-Hispanic races, all Hispanics may look alike.
Technology has allowed for advances in the cross-race effect. According to research, different parts of the brain activate when processing own-race faces. Other race effect happens when facial processing and feature selection is influenced by biased experience. For example, if a non-Hispanic person was to look at a Hispanic, they would immediately recognize the dark hair, brown eyes and skin tone. This is biased experience because we know that most Hispanics have these features. What a non-Hispanic would likely not be attentive to is the facial structure. How defined is jowl line, shape of nose, size of lips? Are the eyes wideset or narrow? What is their cheekbone structure? Do they have a high forehead? This is not a racist issue. This is a result of how our brains process own-race and non-own-race faces.
The cross-race effect is connected to the ingroup advantage phenomenon and the outgroup disadvantage. The in-group allows for the same races to evaluate and judge people within their own race more accurately, whereas the outgroup does not recognize features of people outside their race. People tend to think more categorically about those outside their race or outgroup and more individually about people within their race or ingroup. When identifying an outgroup people may associate specific features with a particular race and not notice the subtle variations in skin tone, brow strength, lip size, or nose structure. This is the opposite when identifying someone in the ingroup. Cognitive theories conclude we have a cognitive disregard for outgroup individual features.
Challenges for cross racial identification in eyewitness testimony.
There are two challenges to cross-racial identification of an eyewitness. Proving a witness has a cognitive disadvantage in positively identifying a person of another race is key. This requires an in-depth investigation into a witness’ history and experience in associating with people of other races. Just because an individual might work with people of another race does not discount the fallible cognitive recognition as an eyewitness of a stranger of another race. The faces of co-workers are familiar to us. We see them 8 hours a day, 5 days a week. We may know an individual when they are dressed in a suit and tie or a uniform everyday but may not recognize them when they are in shorts, t-shirt and flip flops at the grocery store. We may think they look familiar, but are not certain why. An individual should have a history of actively engaging, associating, and immersing themselves with those of other cultures to overcome their cognitive disadvantage. Most people may have only been widely exposed to people of other races after becoming an adult and joining the workforce and engaging in more widespread activities. They will not have imbedded cognitive cross race identifiers. They only notice identifying features of people of other races that they have been exposed to a regular basis.
The second challenge to cross racial identification, is the lack of development and training on cross-race effect and its presentation in the courtroom. There is mixed evidence on the cross-race effect. Some studies show the cross-race identification is based on attentiveness when encoding a face to memory. This challenge can be met by testing a witness’ attentiveness to encoding a face to memory by showing them pictures of individuals outside of their race, for the same length of time, that they saw the robbery suspect running out of the store. The witness is shown 3 to 4 pictures for those 10 seconds and then asked to describe the person in detail. You can also test this by having an individual run through a room and ask the witness to describe in detail then identify them.
Failure in jury instructions.
The American Bar Association has failed in the
language they recommend that judges read to juries that involve cross-racial identification. The language reads, “You may consider if you think it is appropriate” instead of, “You should consider.” There is no mention of the numerous scientific studies that have shown empirically that cross-racial bias exists. Defense attorneys fail in not bringing in experts on cross-racial bias to testify. The jury instructions instead of stating that “scientific studies have shown” the court cites the amorphous, “ordinary human experience.”
Educating law enforcement and prosecutors on the proper procedures in making a cross racial positive identification, having defense attorneys understand the defense strategies when combatting this evidence and correct jury instructions will reduce the number of wrongfully arrested and convicted individua’s and make way for the actual suspect to be apprehended.
https://en.wikipedia.org/wiki/Cross-race_effect
https://www.prisonfellowship.org/resources/advocacy/sentencing/wrongful-convictions
https://academic.udayton.edu/race/03justice
https://cases.justia.com/washington/supreme-court/86119-6-1.pdf?ts=1396151907
https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1135&context=law_jurisprudence