Special Jury Instructions Need if Cross Racial ID Uncorroborated

Matt Ackermann
New Jersey Law Journal
April 19, 1999

The state Supreme Court settled an issue in New Jersey that is slowly being settled throughout the country: the need for a special jury instruction in a criminal case where the complaining witness and the defendant are of different races.

The justices ruled that despite a lack of "substantial agreement in the scientific community that cross racial recognition impairment of eyewitnesses is significant enough to warrant a special jury instruction," juries should be so charged when an eyewitness's cross racial identification is not corroborated.

Failure to submit such an instruction is reversible error, the unanimous Court held Wednesday in State v. Cromedy, A 166 97. The justices ordered a new trial for McKinley Cromedy, a black man who was convicted and sentenced to 50 years in prison for raping a white Rutgers University student.

The ruling puts into effect a recommendation of the Supreme Court Task Force on Minority Concerns Final Report, 131 N.J.L.J. 1145, which had been published but not yet adopted by the Court at the time of Cromedy's 1993 trial. The task force comprised of judges, prosecutors, defense lawyers, social scientists and laymen spent five years studying the issue and ultimately recommended a special jury charge regarding the unreliability of cross racial identifications. The proposed charge, though in draft form, has been stalled in the Court's Model Jury Charge Committee pending the outcome of the Cromedy case.

The question for the justices was whether a defendant who requests a cross racial charge had the burden of showing, through expert testimony, that cross racial eyewitness identifications are unreliable or whether, as Cromedy's lawyer asserted, trial courts can take judicial notice of their fallibility.

The state argued that there is no consensus within the scientific community that cross racial impairment exists nor any general agreement on what factors influence a person's ability to correctly identify a member of another race.

But the author of the opinion, Justice James Coleman Jr., while conceding that there was less than perfect agreement among social scientists in published studies about the extent to which cross racial identification is unreliable, said that Cromedy's requested charge wasn't based upon "scientific, technical, or other specialized knowledge" to assist the jury, as contemplated by N.J.R.E. 702. "He relied instead on ordinary human experience and the legislative type findings of the Task Force because the basis for his request did not involve a matter that was beyond the ken of the average juror," Coleman wrote.

Cromedy's accuser, called D.S. in the opinion, was unable to identify Cromedy from police photographs shortly after the alleged attack in August 1992. There were no other witnesses to the crime and forensic evidence was inconclusive. But in April 1993, D.S. spotted Cromedy at a street corner in New Brunswick and had him arrested.

At trial, McKinley's attorney, East Brunswick solo practitioner Anderson Harkov, requested this jury instruction, citing the June 1992 task force report: "You may consider, if you think it is appropriate to do so, whether the cross racial nature of the identification has affected the accuracy of the witness's original perception and/or accuracy of a substantial identification."

Middlesex County Superior Court Judge Barnett Hoffman denied the request because the task force report was not yet adopted and Harkov submitted no expert testimony. Hoffman gave the jury the Model Jury Charge on Identification, and Cromedy was convicted of first degree aggravated sexual assault, second degree robbery, second degree burglary, and third degree terroristic threats.

A split Appellate Division panel agreed with the result below, holding that expert testimony concerning cross racial identification was not definitive or unanimous. But Judge Thomas Shebell Jr. dissented, saying that the trial judge ignored the task force report and denied Cromedy a fair trial. Shebell wrote, "Since when does New Jersey wait for other jurisdictions to take the lead?"

Coleman agreed. "Although there have been no reported decisions in our own State addressing the propriety of requiring a cross racial identification jury instruction, decisions have been rendered by courts in other jurisdictions," he wrote. "The majority of courts allowing cross racial identification charges hold that the instruction is a matter within the trial judge's discretion."

Civil rights attorneys say the decision is long overdue. "Jurors come to court thinking that eyewitness identification is much more reliable than it actually is," observes William Buckman, a Moorestown solo practitioner who does legal work for the American Civil Liberties Union. "Each of us has been on the street and called out to people that we have mistook as a friend. Memories are fallible, yet imagine what it is like when someone's life is hanging in the balance."

Simon Rosenbach, the assistant Middlesex County prosecutor who argued the appeal, says he is disturbed that the Court is willing to rely on an "old wives' tale" for identification of evidence.

"This old belief, this old wives' tale that white people can't tell black people apart has suddenly become the basis for whether or not a jury should believe an eyewitness," Rosenbach says. He adds that the decision won't have an overarching effect because, in his experience, there are very few trials that rely solely on the testimony of one eyewitness.

Rosenbach says he is considering asking for reconsideration on the issue of whether, even in light of the Court's decision, the case should be remanded since there was corroborating evidence about the clothing that Cromedy was wearing at the time of the crime and when he was apprehended eight months later.

Eyewitness ID
Truth in Justice