The New York Court of Appeals has cited scholarship by Director of Advocacy Programs Jules Epstein in a landmark decision mandating jury instructions on the problems of cross-racial identifications. The ruling applies to all cases where a witness’s identification of the perpetrator is an issue and the instruction is requested by the defendant, who the judges said must appear to be of a different race than the eyewitness who identified him. Epstein was cited for the proposition that, “most eyewitnesses think they are telling the truth even when their testimony is inaccurate, and because the eyewitness is testifying honestly (i.e., sincerely), he or she will not display the demeanor of the dishonest or biased witness. Instead, some mistaken eyewitnesses, at least by the time they testify at trial, exude supreme confidence in their identifications.”
The case, People v. Boone, and its ramifications were summarized in a recent article by the New York Times. Courts in several states either require or allow such an instruction on the basis that it is necessary to reduce the risk of wrongful convictions, which disproportionately affect black men. Both the Innocence Project and the NAACP Legal Defense Fund filed briefs with the court in support of mandating the instruction.
Epstein, who is a noted authority on eyewitness identifications and unconscious bias, has written extensively about this and related issues. His scholarship and other relevant works can be found at Advocacy and Evidence Resources, an open access repository of resources on trial advocacy and state and federal Rules of Evidence for legal academics, students, and practitioners.