When race differs, identification is iffy

Court of Appeals opinion acknowledges hazards in whites' identification of blacks


From the witness stand the victim, a white woman with an artistic talent for painting people, convincingly identified the two black men who she believed had tried to rob her at gunpoint near her Fells Point home. Based on Christine Crandall's testimony alone, the jury had no trouble finding the suspects guilty.

But the state's highest court threw out the convictions of Jason Mack and James Smith. In a closely divided opinion that could affect scores of future cases throughout the state, the Court of Appeals ruled that defense attorneys should have been allowed to tell jurors about the pitfalls of a white person trying to identify a black person.

"This will be a greater challenge to us in securing convictions in cases where there is a cross-racial identification," said Tony Gioia, a city prosecutor who tracks appeals court decisions and trains other prosecutors on legal issues.

The opinion, however, makes clear that the cross-racial argument need not be permitted in all cases - only in those in which the eyewitness testimony of one person is pivotal.

Recent studies have found cross-racial identification can pose a problem, which jurors should have heard during closing arguments, the Court of Appeals ruled. Mack and Smith are scheduled for a new trial in January.

Many times, particularly in robbery cases, the victim - the witness to the crime - is the prosecution's only evidence, Gioia said. Defense attorneys have long called such testimony unreliable, particularly when the witness is identifying someone of another race.

Scientific laboratory and field research, published in articles such as "They All Look Alike: The Inaccuracy of Cross-Racial Identification," has suggested that witnesses are better able to identify people of their own race than they are people of different races. This is particularly true, according to the research, of whites identifying blacks.

"Eyewitness testimony is fraught with error even under the best of circumstances," said defense attorney Flynn M. Owens, who represented Smith. "And there's documented research to show that whites have a more difficult time identifying blacks."

Mack and Smith are accused of approaching Crandall, a teacher and an artist, as she walked near her home in Fells Point just after 10:30 p.m. one evening in May 2002. One man pointed a gun at her, according to police, and the other tried to grab her keys from her hand. The robbery was interrupted by a neighbor who peered out of a second-floor window.

About two weeks later, Crandall picked Mack and Smith out of a photographic lineup and they were arrested.

"There's no doubt she's a well-intentioned lady," Owens said. "But that doesn't mean that she isn't mistaken."

Owens said he wanted the jury to hear about cross-racial identification problems in opening statements, closing arguments and in a jury instruction. He said he considered putting on the witness stand a researcher on the topic, but it proved too expensive.

Baltimore Circuit Judge Brooke M. Murdock prohibited Owens from bringing up the topic during openings and closings, and she said the general jury instruction on witness testimony provided jurors with a sufficient warning about the reliability of Crandall's identification of Mack and Smith.

Murdock said the lawyer was allowed only to point out to jurors in his closing argument that his client is black and that Crandall is white, which Owens said would have been "obvious and curious" to jurors without any other explanation of why he was mentioning race.

Raising questions about cross-racial identification, Owens said, was particularly important in a case with only one real witness and no physical evidence. Crandall's word meant everything.

"The state got to say that she has this special talent in her ability to remember details about people's faces because of her art background," he said. "But I was not allowed to counter-balance that with issues about cross-racial identification."

Mack and Smith were found guilty of attempted robbery, attempted theft and first- and second-degree assault, respectively.

But Murdock should have given Owens and Mack's defense attorney the chance to discuss cross-racial identification during closing arguments, the Court of Appeals ruled in a 4-3 decision issued in August.

"Defense counsel clearly was entitled to challenge Ms. Crandall's `educated' identification of the defendants by arguing to a jury that her identification should not be accorded the weight that she credited to her own ability to identify them," the majority opinion states.

Three judges dissented, arguing that the defendants could have introduced evidence through their own witnesses about any difficulties that come when a white person identifies a black person.

"The trial judge properly exercised her discretion in denying defense counsel the desired opportunity to interject in closing unsupported arguments bearing on witness credibility," the dissenting opinion states.


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