The People, Respondent,v.Otis Boone, Appellant.BriefN.Y.October 17, 2017APL-2016-00015 COURT OF APPEALS STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, v. OTIS BOONE, Appellant. BRIEF FOR AMICI CURIAE IN SUPPORT OF APPELLANT NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE 4805 Mt. Hope Drive Baltimore, MD 21215 NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE NEW YORK STATE CONFERENCE 5 Bryant Park, Suite 820 1065 6th Avenue New York, NY 10018 March 16, 2017 DEBO P. ADEGBILE JENNY R. A. PELAEZ KEVIN J. HOLT WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 CHRISTOPHER D. DODGE WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Attorneys for Movants NAACP and NAACP New York State Conference i CORPORATE DISCLOSURE STATEMENT Pursuant to 22 NYCRR § 500.1(f), the National Association for the Advancement of Colored People (“NAACP”) and the NAACP New York State Conference (“New York State Conference”) provide the following corporate disclosure statement: The NAACP is a nonprofit corporation organized under the laws of the State of New York and under Section 501(c)(3) of the Internal Revenue Code. The NAACP has no parent company, and no publicly held corporation has an ownership interest in the NAACP. The NAACP shares common management with the NAACP Foundation, a nonprofit corporation; the NAACP wholly owns Crisis Publishing Company, Inc., a for-profit corporation that publishes The Crisis, a quarterly magazine. The NAACP has a state conference or state-area conference in every state, and has over two-thousand local units within its organizational structure. All units are organized under Section 501(c)(4) of the Internal Revenue Code as nonprofit corporations operated exclusively for the promotion of social welfare. The NAACP New York State Conference is the statewide unit of the NAACP in New York State, and has been a vital component of the NAACP for over seventy-five years. The New York State Conference contains approximately sixty local branches. ii TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT .......................................................... i TABLE OF CASES AND AUTHORITIES ............................................................ iii INTEREST OF AMICI CURIAE ............................................................................... 1 PRELIMINARY STATEMENT ............................................................................... 2 ARGUMENT ............................................................................................................. 4 I. This Case Presents an Opportunity for the Court to Fulfill Its Critical and Historical Role of “Creating Constitutional and Procedural Safeguards Designed to Maintain the Integrity of the Judicial System and to Protect Criminal Defendants” .................................... 4 II. The Court Should Act to Ameliorate the Inadequacies of the New York Criminal Justice System’s Protections of Defendants of Color from the Risk of Wrongful Convictions Due to Mistaken Eyewitness Identifications ............................................................. 11 A. Mistaken Eyewitness Identifications, and Especially Cross-Racial Identifications, Contribute to Wrongful Convictions .......................................................................................... 11 B. Unreliable Cross-Racial Identification Evidence Exacerbates Pervasive Racial Disparities in the Criminal Justice System ..................................................................................... 14 1. The Impact of Unconscious Bias .............................................. 17 2. The Cost of Wrongful Convictions ........................................... 20 a. Personal and Familial Costs of Wrongful Convictions ..................................................................... 20 b. Systemic Costs of Wrongful Convictions ...................... 24 III. The Court Should Ameliorate the Risk of Wrongful Convictions Due to Erroneous Cross-Racial Identifications by Requiring a Presumptive Cross-Racial Jury Instruction ............................... 27 CONCLUSION ........................................................................................................ 36 iii TABLE OF AUTHORITIES Page(s) CASES Brodes v. State, 614 S.E.2d 766 (Ga. 2005) ............................................................ 29 Buck v. Davis, 137 S. Ct. 759 (2017) ................................................................. 18, 25 California v. Greenwood, 486 U.S. 35 (1988) .......................................................... 4 Carmel v. Lunney, 70 N.Y.2d 169 (1987) ........................................................... 5, 26 City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982) .............................. 4 Commonwealth v. Bastaldo, 32 N.E.3d 873 (Mass. 2015) ...................................... 29 Davis v. United States, 160 U.S. 469 (1895) ............................................................. 8 Escobedo v. Illinois, 378 U.S. 478 (1964) ................................................................. 9 Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) .......................... 15 Hoop v. State, 909 N.E.2d 463 (Ind. Ct. App. 2009) ................................................. 7 Illinois v. Gates, 462 U.S. 213 (1983) ....................................................................... 7 Massiah v. United States, 377 U.S. 201 (1964) ......................................................... 9 Miranda v. Arizona, 384 U.S. 436 (1966) ................................................................. 9 Patterson v. Illinois, 487 U.S. 285 (1988) ................................................................. 6 Peña-Rodriguez v. United States, 580 U.S. __, No. 15–606, slip op. (Mar. 6, 2017) .................................................................................... 25, 27, 28 People v. Cahill, 2 N.Y.3d 14 (2003) ...................................................................... 15 People v. Caserta, 19 N.Y.2d 18 (1966) ................................................................. 26 People v. Donovan, 13 N.Y.2d 148 (1963) ............................................................... 9 People v. Dunn, 77 N.Y.2d 19 (1990) ....................................................................... 7 iv People v. Griminger, 71 N.Y.2d 635 (1988) ............................................................. 7 People v. Harris, 77 N.Y.2d 434 (1991) ................................................................... 5 People v. Jenkins, 75 N.Y.2d 550 (1990) ................................................................ 25 People v. LeGrand, 8 N.Y.3d 449 (2007) .......................................................... 11, 13 People v. Marshall, 26 N.Y.3d 495 (2015) ................................................. 10, 12, 25 People v. McCann, 18 N.Y. 58 (1857) ...................................................................... 8 People v. McDonald, 690 P.2d 709 (Cal. 1984) ...................................................... 16 People v. Mendoza, 4 P.3d 265 (Cal. 2000) ............................................................ 16 People v. Odell, 230 N.Y. 481 (1921) ..................................................................... 28 People v. Owens, 69 N.Y.2d 585 (1987) ................................................................. 28 People v. P.J. Video, Inc., 68 N.Y.2d 296 (1986) ..................................................... 4 People v. Riley, 70 N.Y.2d 523 (1987) .................................................................... 26 People v. Santiago, 17 N.Y.3d 661 (2011) ........................................................ 10, 12 People v. Scott, 79 N.Y.2d 474 (1992) ........................................................ 4, 5, 7, 32 People v. Settles, 46 N.Y.2d 154 (1978) .............................................................. 6, 26 People v. Vilardi, 76 N.Y.2d 67 (1990) ............................................................... 6, 26 People v. Waterman, 9 N.Y.2d 561 (1961) ........................................................... 8, 9 People v. Weaver, 12 N.Y.3d 433 (2009) ................................................................ 10 People v. Witenski, 15 N.Y.2d 392 (1965) ............................................................ 8, 9 Smith v. State, 880 A.2d 288 (Md. 2005) ................................................................ 29 State v. Allen, 294 P.3d 679 (Wash. 2013) .............................................................. 29 State v. Bullock, 901 P.2d 61 (Mont. 1995) ............................................................... 7 State v. Cabagbag, 277 P.3d 1027 (Haw. 2012)...................................................... 29 v State v. Cardenas-Alvarez, 25 P.3d 225 (N.M. 2001) ............................................... 7 State v. Guilbert, 49 A.3d 705 (Conn. 2012) ........................................................... 13 State v. Henderson, 27 A.3d 872 (N.J. 2011) .......................................................... 29 State v. Kono, No. CR120264061, 2014 WL 7462049 (Conn. Super. Ct. Nov. 18, 2014) ........................................................................................... 7 State v. Long, 721 P.2d 483 (Utah 1986) ................................................................. 29 State v. Ortiz, 600 N.W.2d 805 (Neb. 1999) ............................................................. 7 State v. Romero, 922 A.2d 693 (N.J. 2007) ............................................................. 12 State v. Torres, 262 P.3d 1006 (Haw. 2011) .............................................................. 7 Turner v. Murray, 476 U.S. 28 (1986) ..................................................................... 18 United States v. Bagley, 473 U.S. 667 (1985) ........................................................... 6 United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006) ......................................... 30 United States v. Jones, 132 S. Ct. 945 (2012) ......................................................... 10 United States v. Lester, 254 F. Supp. 2d 602 (E.D. Va. 2003) ................................ 30 United States v. Rodriguez-Felix, 450 F.3d 1117 (10th Cir. 2006) ......................... 13 United States v. Smith, 621 F. Supp. 2d 1207 (M.D. Ala. 2009) ............................. 30 United States v. Wade, 388 U.S. 218 (1967) ........................................................... 25 Utah v. Strieff, 136 S. Ct. 2056 (2016) ...................................................................... 2 Young v. Conway, 698 F.3d 69 (2d Cir. 2012) ........................................................ 13 OTHER AUTHORITIES Alexander, Michelle, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2d ed. 2012) ............................................................. 22 Anwar, Shamena et al., The Impact of Jury Race in Criminal Trials, 127 Quarterly J. Econ. 1017 (2012) .............................................................. 19 vi Benton, Tanja R. et al., Eyewitness Memory Is Still Not Common Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20 Applied Cognitive Psychol. 115 (2006) .................. 31 Bjerk, David & Eric Helland, Using a Ratio Test to Estimate Racial Differences in Wrongful Conviction Rates (April 2016), available at http://economics.ucdavis.edu/events/ papers/519Bjerk.pdf; ..................................................................................... 11 Blackstone, William, 4 Commentaries on the Laws of England 352 (1st ed. 1765-69) ............................................................................................ 15 Bonventre, Vincent M., Court of Appeals - State Constitutional Law Review, 1991, 14 Pace L. Rev. 353 (1994) ..................................................... 4 Bonventre, Vincent M., State Constitutionalism in New York: A Non- Reactive Tradition, 2 Emerging Issues in St. Const. L. 32 (1989) ............................................................................................................... 8 Bowers, William J. et al., Crossing Racial Boundaries: A Closer Look at the Roots of Racial Bias in Capital Sentencing When the Defendant Is Black and the Victim Is White, 53 DePaul L. Rev. 1497 (2004) .................................................................................................... 19 Brennan, Jr., Honorable William J., A Tribute to Chief Judge Charles S. Desmond, 36 Buff. L. Rev. 1 (1987) ........................................................... 4 Brennan, Jr., Honorable William J., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977) ...................... 10 Broun, Kenneth S. et al., McCormick on Evidence § 2067 (6th ed. 2006) .............................................................................................................. 11 Chiricos, Ted et al., Racial Typification of Crime and Support for Punitive Measures, 42 Criminology 359 (2004) ........................................... 17 Covert, Bryce, Here’s How Much It Costs to Have a Family Member in Prison, ThinkProgress, Sept. 15, 2015, https://thinkprogress.org/heres-how-much-it-costs-to-have-a- family-member-in-prison-64cd7c3a37dd#.wnh9x8xua (last visited Mar. 15, 2017) .................................................................................... 23 vii Criminal Justice Section, American Bar Association, Report to House of Delegates 104D (2008) ........................................................................ 34, 35 Desmarais, Sarah L. & J. Don Read, After 30 Years, What Do We Know About What Jurors Know? A Meta-Analytic Review of Lay Knowledge Regarding Eyewitness Factors, 35 Law & Hum. Behav. 200 (2011) ............................................................................... 30 Doyle, James M., Discounting the Error Costs: Cross-Racial False Alarms in the Culture of Contemporary Criminal Justice, 7 Psychol., Pub. Pol’y & L 253 (2001) ............................................................ 18 Eberhardt, Jennifer L. et al, Seeing Black: Race, Crime, and Visual Processing, 87 J. Personality & Soc. Psychol., no. 6, 876 (2004) ................ 17 Eisenberg, Theodore & Sheri L. Johnson, Implicit Racial Attitudes of Death Penalty Lawyers, DePaul L. Rev. 1545 (2004) .................................. 18 Ella Baker Center, Forward Together, Who Pays? The True Cost of Incarceration on Families, available at http://whopaysreport.org/who-pays-full-report/ (last visited Mar. 15, 2017) ......................................................................................... 22, 23 Eyewitness Testimony: Psychological Perspectives (Gary L. Wells & Elizabeth F. Loftus, eds., 1984) ..................................................................... 14 Frankfurter, Honorable Felix, The Case of Sacco and Vanzetti (1927) .................. 12 Garrett, Brandon L., Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard Univ. Press 2011) ............................... 3, 14 Gerety, Rowan Moore, Visit A Loved One In Jail? It’ll Cost You, NWPR, Jan. 13, 2015, http://nwpr.org/post/visit-loved-one-jail- itll-cost-you (last visited Mar. 15, 2017) ....................................................... 23 Grimsley, Edwin, The Innocence Project, What Wrongful Convictions Teach Us About Racial Inequality, Sept. 26, 2012, http://www.innocenceproject.org/what-wrongful-convictions- teach-us-about-racial-inequality/ ............................................................. 12, 14 Grounds, Adrian, Psychological Consequences of Wrongful Conviction and Imprisonment, 46 Canadian J. Criminology & Crim. Just. 165 (2004) ................................................................................... 21 viii Gross, Samuel R. & Michael Shaffer, National Registry of Exonerations, Exonerations in the United States: 1989-2012, at 43 (2012), http://www.law.umich.edu/ special/exoneration/Documents/exonerations_us_ 1989_2012_full_report.pdf (last visited Feb. 15, 2017) .......................... 11, 12 Grosso, Catherine M. & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531 (2012) .................................................................................................... 19 Hager, Eli & Rui Kaneya, The Prison Visit That Cost My Family $2,370, The Marshall Project, Apr. 12, 2016, https://www.themarshallproject.org/2016/04/12/the-hawaii- prison-visit-that-cost-my-family-2-370 ......................................................... 23 Hancock, Jr., Stewart F., The State Constitution, A Criminal Lawyer’s First Line of Defense, 57 Alb. L. Rev. 271 (1993) ...................................... 8, 9 Identification, C.J.I.2d [N.Y.]—Final Instructions, available at www.nycourts.gov/judges/cji/5- SampleCharges/CJI2d.Final_Instructions.pdf ......................................... 33, 34 Jackson, Kaitlin & Samuel Gross, Nat’l Registry of Exonerations, Tainted Identifications, http://www.law.umich.edu/special/ exoneration/Pages/taintedids.aspx (last visited Feb. 17, 2017) ..................... 12 Johnson, Sheri L., Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 (1984) ........................................................... 16 Jolls, Christine & Cass R. Sunstein, The Law of Implicit Bias, 94 Cal. L. Rev. 969 (2006) ......................................................................................... 17 Jones, Joshua A., Wrongful Conviction in the Amer-ican Judicial Process: History, Scope, and Analysis, 4 Inquiries J., no. 8, 2012, available at https://www.inquiriesjournal.com/a?id=682 ................... 12 Kain, Erik, The High Cost of Wrongful Convictions, Forbes, June 29, 2011, https://www.forbes.com/sites/erikkain/2011/06/29/the- high-cost-of-wrongful-convictions/#8c330a472ec5 ..................................... 24 ix Kang, Jerry et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124 (2011-2012) .................................................................................... 17, 31 Kaye, Honorable Judith S., Contributions of State Constitutional Law to the Third Century of American Federalism, 13 Vt. L. Rev. 49 (1988) ............................................................................................................... 5 Kaye, Honorable Judith S., Dual Constitutionalism in Practice and Principle, 61 St. John’s L. Rev. 339 (1987) ................................................ 4, 5 Kaye, Honorable Judith S., State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. Rev. 1 (1995).................................................... 10 Katz, Jonathan M. & Erik Eckholm, DNA Evidence Clears Two Men in 1983 Murder, N.Y. Times, Sept. 2, 2014, https://www.nytimes.com/2014/09/03/us/2-convicted-in-1983- north-carolina-murder-freed-after-dnatests.html ..................................... 21, 24 Levin, Daniel T., Race as a Visual Feature: Using Visual Search and Perceptual Discrimination Tasks to Understand Face Categories and the Cross-Race Recognition Deficit, 129 J. Experimental Psychol.: General, no. 4 (2000), available at http://www.apa.org/pubs/journals/ releases/xge1294559.pdf ............................................................................... 14 Levinson, Justin D. & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307 (2010) ........................................ 19, 20, 31 Levinson, Justin et al., Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St. J. Crim. L. 187 (2010) ....................................................................................................... 19, 31 Lindsay, R.C.L. et al., Can People Detect Eyewitness-Identification Accuracy Within and Across Situations?, 66 J. Applied Psychol. 79 (1981) ........................................................................................................ 30 Loftus, Elizabeth, Eyewitness Testimony (Harvard Univ. Press 1996) ................... 29 x Love, David A., Dealing with the Racial Nature of Wrongful Convictions, Huffington Post (Dec. 23, 2014, 10:00 PM), http://www.huffingtonpost.com/david-a-love/dealing-with-the- racial-nature-of-wrongful-convictions_b_6337850.html .............................. 15 Lyon, Andrea D., Race Bias and the Importance of Consciousness for Criminal Defense Attorneys, 35 Seattle U. L. Rev. 755 (2012) .................... 19 Mauer, Marc & Virginia McCalmont, The Sentencing Project, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits (2013), available at http://sentencingproject.org/doc/publications/cc_A%20Lifetime %20of%20Punishment.pdf ............................................................................ 22 Meissner, Christian A. & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta- Analytic Review, 7 Psychol. Pub. Pol’y & L. 3 (2011) ........................... 13, 14 Mitchell, Tara L. et al., Racial Bias in Mock Juror Decision-Making: A Meta-Analytic Review of Defendant Treatment, 29 Law & Hum. Behav. 621 (2005) ............................................................................... 19 NAACP, 2014 NAACP Resolutions Results (2014), http://action.naacp.org/page/resolutions/2014_Resolutions _Results.pdf ..................................................................................................... 1 National Registry of Exonerations, Basic Patterns, http://www.law.umich.edu/special/exoneration/Pages/Basic- Patterns.aspx (last visited Feb. 15, 2017) ...................................................... 20 National Registry of Exonerations, Detailed View, http://www.law.umich.edu/special/exoneration/ Pages/detaillist.aspx (last visited Feb. 15, 2017) ........................................... 13 National Registry of Exonerations, Exonerations by Race and Crime, www.law.umich.edu/special/exoneration/Pages/ ExonerationsRaceByCrime.aspx (last visited Feb. 15, 2017) ....................... 15 National Reserach Council, Identifying the Culprit: Assessing Witness Identification, available at http://public.Psychol.iastate.edu/glwells/NAS_Eyewitness_ID_ Report.pdf; ......................................................................................... 11, 14, 31 xi NBC News/AP, Wrongfully Convicted Brothers, Each Get $750K Payout, http://www.nbcnews.com/news/us-news/henry- mccollum-leon-brown-wrongfully-convicted-brothers-each-get- 750k-n420281 (last visited Mar. 15, 2017) ................................................... 24 Neff, Joseph, For Henry McCollum and Leon Brown, Freedom Has a Cost, The News & Observer (Jan. 31, 2015) ................................................. 23 New York State Justice Task Force, Recommendations for Improving Eyewitness Identifications 1 (2011), available at http://www.nyjusticetaskforce.com/2011_02_01_Report_ID_R eform.pdf........................................................................................................ 34 O’Connor, Meg, City Makes Slow Progress in Effort to Prevent Wrongful Convictions, Gotham Gazette, Jan. 24, 2017, http://www.gothamgazette.com/city/6726-city-makes-slow- progress-in-effort-to-prevent-wrongful-convictions ..................................... 25 Rachlinski, Jeffrey J. et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195 (2009) ..................................... 18 Rapping, Jonathan A., Implicitly Unjust: How Defenders Can Affect Systemic Racist Assumptions, 16 N.Y.U. J. Legislation & Pub. Pol’y 999 (2013) ............................................................................................ 18 Rehavi, M. Marit & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences, May 2012, http://economics.ubc.ca/files/2013/05/pdf_paper_marit- rehavi-racial-disparity-federal-criminal.pdf .................................................. 15 Richardson, L. Song & Phillip Atiba Goff, Implicit Racial Bias in Public Defender Triage, 122 Yale L.J. 2626 (2013) ..................................... 19 Rutledge, John P., They All Look Alike: The Inaccuracy of Cross- Racial Identifications, 28 Am. J. Crim. L. 207 (2001) ...................... 14, 16, 29 Santos, Fernanda & Janet Roberts, Putting a Price on a Wrongful Conviction, N.Y. Times, Dec. 2, 2007, http://www.nytimes.com /2007/12/02/weekinreview/02santos.html ..................................................... 21 Scheck, Barry et al., Actual Innocence: When Justice Goes Wrong and How to Make It Right (2003) ......................................................................... 23 xii Scott, Leslie,“It Never, Ever Ends”: The Psychological Impact of Wrongful Conviction, 5 Am. U. Crim. L. Brief 10 (Spring 2010) ................ 21 Smith, Robert J. & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795 (2012) ......................................................................................... 19 Sommers, Samuel R. & Phoebe C. Ellsworth, How Much Do We Really Know About Race and Juries? A Review of Social Science Theory and Research, 78 Chi.-Kent L. Rev. 997 (2003) ................. 19 Sommers, Samuel R. & Phoebe C. Ellsworth, Race in the Courtroom: Perceptions of Guilt and Dispositional Attributions, 26 Personality & Soc. Psychol. Bull. 1367 (2000) .................................. 19, 31 Sommers, Samuel R. & Phoebe C. Ellsworth, “Race Salience” in Juror Decision-Making: Misconceptions, Clarifications, and Unanswered Questions, 27 Behav. Sci. & L. 599 (2009) ............................. 31 Sommers, Samuel R. & Phoebe C. Ellsworth, White Juror Bias: An Investigation of Prejudice Against Black Defendants in the American Courtroom, 7 Psychol. Pub. Pol’y & L. 201(2001) ................ 19, 31 Taslitz, Andrew E., Wrongly Accused: Is Race a Factor in Convicting the Innocent?, 4 Ohio St. J. Crim. L. 121 (2012) .......................................... 18 The Sentencing Project, Black Lives Matter, http://www.sentencingproject.org/publications/black-lives- matter-eliminating-racial-inequity-in-the-criminal-justice- system/ ..................................................................................................... 15, 18 The Sentencing Project, Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies, http://www.sentencingproject.org/wp- content/uploads/2015/11/Race-and-Punishment.pdf; .................................... 17 The Sentencing Project, State-Level Estimates of Felon Disenfranchisement in The United States, 2010 (July 2012), http://sentencingproject.org/wp-content/uploads/2016/01/State- Level-Estimates-of-Felon-Disenfranchisement-in-the-United- States-2010.pdf .............................................................................................. 22 xiii United States Census Bureau, United States Department of Commerce, 2010 Census of Population & Housing: Summary Population & Housing Characteristics (2013), available at https://www.census.gov/prod/cen2010/cph-1-1.pdf ...................................... 35 Westervelt, Saundra D. & Kimberly J. Cook, Life After Death Row: Exonerees’ Search for Community and Identity (2012) ................................ 23 1 INTEREST OF AMICI CURIAE The National Association for the Advancement of Colored People (“NAACP”), established in 1909, is the nation’s oldest and largest civil rights organization. The fundamental mission of the NAACP, and its state arm, the NAACP New York State Conference (“New York State Conference”), is the advancement and improvement of the political, educational, social, and economic status of minority groups; the elimination of prejudice; the publication of adverse effects of discrimination; and the initiation of lawful action to eliminate age, racial, religious, and ethnic bias. Regrettably, discrimination and racial disparities persist at every stage of the criminal justice system, from policing, to trial, to sentencing, and beyond. The NAACP and its New York State Conference are deeply committed to eliminating sources of racial disparity in the criminal justice system, including the prevalence of mistaken identifications of people of color by eyewitnesses that results in people of color being wrongfully convicted at an intolerable and disproportionate rate.1 Amici accordingly file this brief in support of Mr. Boone and to urge the Court to embrace a readily available and common-sense safeguard which would protect the 1 Most recently, the NAACP has partnered with the Innocence Project to prevent wrongful convictions from occurring in the first instance, and adopted a 2014 resolution to “advocate for states to adopt core procedural reforms to improve the accuracy of eyewitness identification[.]” NAACP, 2014 NAACP Resolutions Results 2 (2014), http://action.naacp.org/page/-/resolutions/ 2014_Resolutions_Results.pdf. 2 reliability of criminal verdicts: requiring trial courts to issue a jury instruction explaining the unreliability of cross-racial eyewitness identification in all criminal cases, unless the defendant and the government stipulate that no cross-racial identification is at issue in the case. PRELIMINARY STATEMENT The integrity of our system turns upon its fair administration without regard to race. Absent measures to remedy racial disparity, “our justice system will continue to be anything but.” Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J., dissenting). This case presents a rare opportunity in which an easily-applied and low cost procedural protection could meaningfully improve the integrity of the criminal justice system and ensure more reliable outcomes. Throughout its history, this Court has led federal and state courts in erecting guardrails to protect defendants from systemic unfairness that threatens individual liberties and undermines public confidence in our system of justice. These procedural rules have become critical to the canon of protections afforded to defendants and definitional to our understanding of fairness in New York and beyond. This case summons the Court to this important role once again. Experience establishes that people of color are more likely to be convicted wrongfully. A distressingly high percentage of cases with overturned convictions 3 involve an identification by an eyewitness of another race than the defendant—one study showed that at least 49% of DNA exonerations due to mistaken identification turned on cross-racial or cross-ethnic identifications. Brandon L. Garrett, Convict- ing the Innocent: Where Criminal Prosecutions Go Wrong 73 (Harvard Univ. Press 2011). Despite the proven unreliability of cross-racial identification evidence and juror misconceptions on the strength of such identifications, New York trial courts continue to allow juries to consider cross-racial identification evidence without qualification. As a consequence, jurors throughout the state who are charged with deciding guilt or innocence are not fully equipped with the information necessary for them to effectively evaluate the evidence before them. This poses a serious and unacceptable risk of erroneous convictions for defendants of color. The approach proposed by Mr. Boone and other amici—to require that a cross-racial jury instruction issue in all cases unless the parties stipulate other- wise—is an available, efficient, and prudent rule that would add a necessary measure of reliability into the system. Adopting this rule serves the purposes of reducing racial inequity and promoting the integrity of criminal verdicts, and thus the criminal justice system more broadly. 4 ARGUMENT I. This Case Presents an Opportunity for the Court to Fulfill Its Critical and Historical Role of “Creating Constitutional and Procedural Safeguards Designed to Maintain the Integrity of the Judicial System and to Protect Criminal Defendants.” Adopting safeguards that protect criminal defendants and maintain the integrity of the judicial system, like the rule requested by Boone and amici, is a tradition of this Court. The Court of Appeals has an established and venerable tradition of safeguarding the rights of New Yorkers when the minimum protections afforded under the federal constitution have failed to adequately protect citizens of this state. See, e.g., People v. P.J. Video, Inc., 68 N.Y.2d 296, 303 (1986) (noting “New York’s long tradition of interpreting our State Constitution to protect individual rights”).2 The Court’s jurisprudence reflects a particular concern for 2 See also Vincent M. Bonventre, Court of Appeals - State Constitutional Law Review, 1991, 14 Pace L. Rev. 353, 365 (1994) (recognizing that the New York Court of Appeals “has historically been a national leader in enforcing individual rights under the state constitution regardless of the trends in federal law”); Hon. Judith S. Kaye, Dual Constitutionalism in Practice and Principle, 61 St. John’s L. Rev. 339, 412 (1987) (noting New York’s “long tradition of reading the parallel clauses independently and affording broader protection . . . under the State Constitution”); Hon. William J. Brennan, Jr., A Tribute to Chief Judge Charles S. Desmond, 36 Buff. L. Rev. 1, 3 (1987) (describing this Court as an “acknowledged leader” among state courts that “protect individual rights and liberties”). The United States Supreme Court, in turn, invites this constitutional independence. See, e.g., City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 293 (1982) (“[A] state court is entirely free to read its own State’s constitution more broadly than this Court reads the Federal Constitution, or to reject the mode of analysis used by this Court in favor of a different analysis of its corresponding constitutional guarantee.”); California v. Greenwood, 486 U.S. 35, 43 (1988) (“Individual States may surely construe their own constitutions as imposing more stringent constraints . . . than does the Federal Constitution.”); see also People v. Scott, 79 N.Y.2d 474, 505 (1992) (Kaye, C.J., concurring) (noting that “the Supreme Court as well as its 5 “constitutional and procedural safeguards [that are] designed to maintain the integrity of the judicial system and to protect criminal defendants.” Carmel v. Lunney, 70 N.Y.2d 169, 173 (1987); see also People v. Scott, 79 N.Y.2d 474, 480 (1992) (collecting cases in which the Court of Appeals “adopt[ed] a more protective rule under our State Constitution” than the federal constitution); People v. Harris, 77 N.Y.2d 434, 439 (1991) (observing that New York has “established a protective body of law . . . resting on concerns of due process, self-incrimination, and the right to counsel provisions in the State Constitution which is substantially greater than that recognized by other State jurisdictions and far more expansive than the Federal counterpart”) (citations omitted). As in Scott and Harris, Mr. Boone has appealed to the Court for relief under New York’s constitutional protections, see Boone Br. at 8, 18, 54, which “reflect[] the State’s own [constitutional] values.” Hon. Judith S. Kaye, Contributions of State Constitutional Law to the Third Century of American Federalism, 13 Vt. L. Rev. 49, 55 (1988); see also Kaye, Dual Constitutionalism, 61 St. John’s L. Rev. at 422 (“It is a function of constitutional law, then, to preserve a community’s overarching values in the face of its transient choices. And it is a significant function of the courts to ascertain and identify these most basic values, and flag them when they are at risk.”). individual Justices have reminded State courts not merely of their right but also of their responsibility to interpret their own Constitutions.” (emphasis added)). 6 For example, this Court has diligently protected defendants’ right to counsel beyond the minimum protections under the federal constitution. “So valued is the right to counsel in this State, it has developed independent of its Federal counterpart,” with the Court of Appeals “extend[ing] the protections afforded by our State Constitution beyond those of the Federal well before certain Federal rights were recognized.” People v. Settles, 46 N.Y.2d 154, 161 (1978) (parentheticals omitted). Although federal law permits an indicted individual to waive their right to counsel without an attorney present, see Patterson v. Illinois, 487 U.S. 285, 292 (1988), this Court has held that a “criminal defendant under indictment and in custody may not waive his right to counsel unless he does so in the presence of an attorney,” Settles, 46 N.Y.2d at 162-63. In so doing, the Court emphasized that this procedural protection is important “not only to insure the rights of the individual defendant but for the protection and well-being of society[.]” Id. at 161. This Court also has held that the government’s failure to disclose material requested by a defendant warranted reversal because it was so “serious . . . in its potential to undermine the fairness of the trial,” People v. Vilardi, 76 N.Y.2d 67, 77 (1990), unlike the Supreme Court which had previously held that such withheld material only warranted reversal if there was a “reasonable probability” the evidence would have altered the trial outcome, United States v. Bagley, 473 U.S. 7 667, 682 (1985). In another example, this Court strengthened the warrant as a procedural safeguard by requiring that affidavits submitted in support of warrant applications satisfy a test that is more demanding than the flexible standard adopted by the Supreme Court, expressing doubt that the “[federal] approach provides a sufficient measure of protection” for citizens of New York. People v. Griminger, 71 N.Y.2d 635, 639 (1988). These cases, among others, represent this Court’s fundamental commitment to vigilantly guarding criminal defendants from potential inequities in the criminal justice system. Moreover, these decisions have contributed to a new and firmer conception of what is required to ensure that our criminal laws are justly applied, and in turn, have since become fundamental to our understanding of fairness, even shaping jurisprudence in other states3 and, at times, the Supreme Court. As early as 1857, the New York Court of Appeals set groundbreaking constitutional precedent 3 For instance, this Court’s decision led several other states to adopt similar rules governing searches by drug-sniffing dogs. See People v. Dunn, 77 N.Y.2d 19, 26 (1990) (concluding that a canine sniff outside an apartment, which did not constitute a search under the federal Fourth Amendment, constituted a search within the meaning of article 1, § 12 of the New York Constitution and required reasonable suspicion), cited in, e.g., State v. Ortiz, 600 N.W.2d 805, 816 (Neb. 1999); Hoop v. State, 909 N.E.2d 463, 467 n.7 (Ind. Ct. App. 2009); State v. Kono, No. CR120264061, 2014 WL 7462049, at *3 (Conn. Super. Ct. Nov. 18, 2014). Likewise, this Court’s decision was extensively relied upon by the Montana Supreme Court in adopting a similar rule regarding open fields. See Scott, 79 N.Y.2d at 501 (concluding that, unlike under federal law, the New York constitution guarantees a reasonable expectation of privacy to open field beyond the curtilage of their home, and that the police must obtain a warrant before searching the premises), cited in State v. Bullock, 901 P.2d 61, 74 (Mont. 1995). The Supreme Courts of Hawaii and New Mexico cited this Court’s opinion in Griminger when electing to retain a stricter test than the one adopted by the Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983), for testing affidavits in support of warrant applications. See State v. Torres, 262 P.3d 1006, 1016-17 (Haw. 2011); State v. Cardenas-Alvarez, 25 P.3d 225, 243 (N.M. 2001). 8 related to the rights of criminal defendants that would subsequently be embraced by the Supreme Court. See Vincent M. Bonventre, State Constitutionalism in New York: A Non-Reactive Tradition, 2 Emerging Issues in St. Const. L. 32, 37-48 (1989). In People v. McCann, this Court held that when a criminal defendant raises the defense of insanity, the burden “remains with the prosecution to show the existence of those requisites or elements which constitute the crime,” including a sane mental state. 18 N.Y. 58, 65 (1857). Nearly forty years later, the Supreme Court relied upon McCann in adopting the same rule. See Davis v. United States, 160 U.S. 469, 488 (1895) (describing state high court decisions, including the McCann decision, as “adjudications that are entitled to high respect.”); see also Stewart F. Hancock, Jr., The State Constitution, A Criminal Lawyer’s First Line of Defense, 57 Alb. L. Rev. 271, 279 (1993) (“Some of these early New York decisions protecting individual rights under state law . . . were later adopted as federal law by the Supreme Court.”). In the 1960s, a trio of this Court’s landmark cases laid the foundation for the broad federal rights embraced by the Warren Court. In 1961, this Court held that the New York constitution requires that defendants be advised of basic constitutional rights before being questioned, and further that the New York constitution barred questioning a defendant after indictment without the presence of their counsel. See People v. Waterman, 9 N.Y.2d 561, 565-66 (1961); People v. 9 Witenski, 15 N.Y.2d 392, 396-97 (1965) (noting that despite the lack of similar federal guarantees at the time, we “must not forget that in our State the right to counsel was announced and insisted upon in much older case law”). This Court then extended the right to counsel to pre-indictment interrogation. See People v. Donovan, 13 N.Y.2d 148, 152-53 (1963). When these constitutional precepts were later read into the federal constitution, the Supreme Court expressly relied upon these New York precedents for support. See Massiah v. United States, 377 U.S. 201, 205 (1964) (citing Waterman, 9 N.Y.2d at 565) (holding that the government may not question defendant after Sixth Amendment right to counsel attaches); Escobedo v. Illinois, 378 U.S. 478, 486-87 (1964) (citing Donovan, 13 N.Y.2d 148) (holding that the right to counsel attaches before the government obtains an indictment); Miranda v. Arizona, 384 U.S. 436, 473 n.42 (1966) (citing Witenski, 15 N.Y.2d 392) (“The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent—the person most often subjected to interrogation—the knowledge that he too has a right to have counsel present.”).4 More recently, Justice Sotomayor relied upon this Court’s opinion in People v. Weaver, which 4 The Supreme Court acknowledged the influence of this Court in Escobedo, writing “The New York Court of Appeals, whose decisions this Court cited with approval in Massiah has recently recognized that, under circumstances such as those here, no meaningful distinction can be drawn between interrogation of an accused before and after formal indictment.” Escobedo, 378 U.S. at 486; see also Hancock, Jr., 57 Alb. L. Rev. at 279-80 (“Indeed, the Warren Court acknowledges its debt to the New York Court of Appeals decisions in its landmark holdings in Massiah, Escobedo, and Miranda.”). 10 held that the installation and use of a GPS device to track an individual’s location necessitated a warrant under the New York constitution. See United States v. Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring) (citing People v. Weaver, 12 N.Y.3d 433, 441-42 (2009)). New York’s history of vigorously enforcing rights of criminal defendants and protecting the integrity of the criminal justice system represents a critical function for state courts. As Justice Brennan observed, “state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution.” Hon. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977). Without “the independent protective force of state law . . . the full realization of our liberties cannot be guaranteed.” Id.; see also Hon. Judith S. Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. Rev. 1, 18 (1995) (expressing “confiden[ce] that courts will continue to consult their own constitutions to vindicate the rights of their citizens”). This Court has acknowledged that wrongful convictions “pose a serious danger to defendants and the integrity of our justice system,” People v. Marshall, 26 N.Y.3d 495, 502 (2015), and that “mistaken eyewitness identifications play a significant role in many wrongful convictions,” People v. Santiago, 17 N.Y.3d 661, 669 (2011). More specifically, this Court has already recognized “that 11 ‘witnesses often make mistakes, [and] that they tend to make more mistakes in cross-racial identifications[.]’” People v. LeGrand, 8 N.Y.3d 449, 455 (2007) (quoting 1 Kenneth S. Broun et al., McCormick on Evidence § 2067, at 880 (6th ed. 2006)). This case presents a rare opportunity in which a low cost and easily applied procedural protection—a presumptive jury instruction on cross-racial identification evidence—can meaningfully improve protections for criminal defendants and enhance the integrity of New York’s criminal justice system. II. The Court Should Act to Ameliorate the Inadequacies of the New York Criminal Justice System’s Protections of Defendants of Color from the Risk of Wrongful Convictions Due to Mistaken Eyewitness Identifications. A basic measure of a just criminal system is that it does not systematically treat people differently based on race or other personal characteristics. Our criminal justice system regrettably falls short of that mark. In a society that too often conflates minority communities with criminality, people of color involved in the criminal justice system face additional risks. A. Mistaken Eyewitness Identifications, and Especially Cross-Racial Identifications, Contribute to Wrongful Convictions The most common reason for a wrongful conviction is eyewitness error.5 5 Nat’l Res. Council, Identifying the Culprit: Assessing Witness Identification, available at http://public.Psychol.iastate.edu/glwells/NAS_Eyewitness_ID_Report.pdf; David Bjerk & Eric Helland, Using a Ratio Test to Estimate Racial Differences in Wrongful Conviction Rates (April 2016), available at http://economics.ucdavis.edu/events/papers/519Bjerk.pdf; Samuel R. Gross & Michael Shaffer, Nat’l Registry of Exonerations, Exonerations in the United States: 1989- 2012, at 43 (2012), http://www.law.umich.edu/special/exoneration/Documents/exonerations_us 12 See State v. Romero, 922 A.2d 693, 701 (N.J. 2007) (citing Hon. Felix Frankfurter, The Case of Sacco and Vanzetti 30 (1927)) (describing the “identification of strangers” to be “proverbially untrustworthy”). “[M]istaken eyewitness identifications play a significant role in many wrongful convictions.” People v. Santiago, 17 N.Y.3d 661, 669 (2011); see also Marshall, 26 N.Y.3d at 502 (wrongful convictions “pose a serious danger to defendants and the integrity of our justice system”). Almost 75% of a sample of 297 DNA exonerations studied by the Innocence Project involved wrongful convictions based on eyewitness misidentification.6 And mistaken witness identifications were a contributing factor in 43% of all exonerations in the United States from 1989 to 2012 collected by the National Registry of Exonerations.7 That percentage increases for certain types of crimes—81% of robbery and 80% of sexual-assault exonerations involved mistaken witness identifications. Of the eight exonerations from New York City in _1989_2012_full_report.pdf (last visited Feb. 15, 2017) (describing eyewitness misidentification as the most common cause of false convictions); Kaitlin Jackson & Samuel Gross, Nat’l Registry of Exonerations, Tainted Identifications, http://www.law.umich.edu/special/exoneration/Pages/ taintedids.aspx (last visited Feb. 17, 2017); Joshua A. Jones, Wrongful Conviction in the Amer- ican Judicial Process: History, Scope, and Analysis, 4 Inquiries J., no. 8, 2012, available at https://www.inquiriesjournal.com/a?id=682. 6 Edwin Grimsley, The Innocence Project, What Wrongful Convictions Teach Us About Racial Inequality, Sept. 26, 2012, http://www.innocenceproject.org/what-wrongful-convictions- teach-us-about-racial-inequality/. 7 Gross & Shaffer, supra n.5. 13 2016, four turned on a mistaken eyewitness identification.8 The problems with eyewitness identification evidence are exacerbated when the identification is cross-racial. As noted above, this Court recognized “that ‘witnesses often make mistakes, [and] that they tend to make more mistakes in cross-racial identifications[.]’” LeGrand, 8 N.Y.3d at 455 (emphasis added) (quotation omitted). This Court is not alone in its assessment: “Courts across the country now accept that . . . cross-racial identifications are considerably less accurate than same race identifications.” State v. Guilbert, 49 A.3d 705, 721-22 & n.15 (Conn. 2012) (citing United States v. Rodriguez-Felix, 450 F.3d 1117, 1124 & n.8 (10th Cir. 2006)). Decades of research demonstrate the problem posed by cross-racial identification identified by the courts. “[S]ocial science research indicates that people are significantly more prone to identification errors when trying to identify someone of a different race, a phenomenon known as ‘own-race bias.’” Young v. Conway, 698, F.3d 69, 81 (2d Cir. 2012). Study after study has shown that individuals tend to be highly inaccurate in recognizing individuals from other racial groups and that this cognition error is even worse for people in a majority population group.9 One study involving a sample of 5,000 witnesses over 8 Nat’l Registry of Exonerations, Detailed View, http://www.law.umich.edu/special/ exoneration/Pages/detaillist.aspx (last visited Feb. 15, 2017). 9 See, e.g., Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 Psychol. Pub. Pol’y & L. 3, 15 14 a thirty-year span determined that a person is 150% more likely to misidentify a stranger if he or she belongs to another race. Meissner & Brigham, 7 Psychol. Pub. Pol’y & L. at 15.10 This lack of reliability of cross-racial identifications translates to an unacceptably high risk of wrongful convictions. According to one study, at least 49% of mistaken identification cases later overturned with DNA evidence involved cross-racial or cross-ethnic identifications. Garrett, Convicting the Innocent at 73. Of the DNA exonerations that involved mistaken eyewitness identification studied by the Innocence Project, a staggering 42% of those wrongful conviction cases involved cross-racial identification. Grimsley, supra n.6; see also Nat’l Res. Council, Identifying the Culprit, supra n.5, at 96 (citing Grimsley). B. Unreliable Cross-Racial Identification Evidence Exacerbates Pervasive Racial Disparities in the Criminal Justice System People of color disproportionately bear the burden of errors in our criminal justice system. Mounting evidence establishes that people of color are more likely (2011); John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28 Am. J. Crim. L. 207, 211 (2001) (citing Eyewitness Testimony: Psychological Perspectives (Gary L. Wells & Elizabeth F. Loftus, eds., 1984)). 10 Studies suggest that the own-race bias may occur because individuals emphasize visual information on race at the expense of individuating information when recognizing faces of other racial groups. Daniel T. Levin, Race as a Visual Feature: Using Visual Search and Perceptual Discrimination Tasks to Understand Face Categories and the Cross-Race Recognition Deficit, 129 J. Experimental Psychol.: General, no. 4, 2000, at 559-74, available at http://www.apa.org/ pubs/journals/releases/xge1294559.pdf. 15 to be detained by police, arrested, charged, convicted, and subjected to higher bail amounts and harsher sentences.11 Despite our nation’s fundamental and oft- repeated tenet that “the law holds[] that it is better that ten guilty persons escape[] than that one innocent suffer,”12 people of color are wrongfully convicted at alarmingly disproportionate rates. A study conducted by the Innocence Project found that of 324 people who have been wrongfully convicted and freed by DNA evidence, 70% are people of color, and 63% are African American.13 And of the 1,983 people exonerated in the United States between 1989 and February 15, 2017, 1,206 (60.8%) are people of color and 929 people (46.8%) are black.14 Another study analyzing 25 years of exoneration data found that the rate of wrongful 11 See, e.g., The Sentencing Project, Black Lives Matter, http://www.sentencingproject.org/ publications/black-lives-matter-eliminating-racial-inequity-in-the-criminal-justice-system/; M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences, May 2012, http://economics.ubc.ca/files/2013/05/pdf_paper_marit- rehavi-racial-disparity-federal-criminal.pdf; see also Floyd v. City of New York, 959 F. Supp. 2d 540, 572-75 (S.D.N.Y. 2013) (noting that in 52% of the 4.4 million police stops under New York City’s stop-and-frisk policy, the person stopped was black.”); People v. Cahill, 2 N.Y.3d 14, 94- 95 (2003) (G.B. Smith, J., concurring) (noting that “[i]t is undeniable that racial prejudice is alive in many aspects of society,” including the criminal justice system, and citing studies that “concluded that similarly situated minorities and Whites were not treated equally, with the former held in jail on indictment and sentenced to incarceration more often”). 12 William Blackstone, 4 Commentaries on the Laws of England 352 (1st ed. 1765-69). 13 David A. Love, Dealing with the Racial Nature of Wrongful Convictions, Huffington Post (Dec. 23, 2014, 10:00 PM), http://www.huffingtonpost.com/david-a-love/dealing-with-the- racial-nature-of-wrongful-convictions_b_6337850.html. 14 Nat’l Registry of Exonerations, Exonerations by Race and Crime, www.law.umich.edu/ special/exoneration/Pages/ExonerationsRaceByCrime.aspx (last visited Feb. 15, 2017). 16 convictions for sexual assault among black defendants is at least three times greater than it is for white defendants.15 This case presents a clear opportunity to protect defendants of color from the disproportionate risk of wrongful convictions. Since people of color are already overrepresented as defendants in the criminal justice system and must contend with a slew of explicit and implicit biases, permitting the unqualified introduction of cross-racial identification perpetuates the high rate of wrongful convictions of defendants of color and contributes to the racial imbalance in the administration of our criminal laws. The risk of wrongful conviction based on a mistaken cross-racial identification is amplified when the identifying eyewitness is white and the defendant is black. Studies show that the effect of own-race bias “is strongest when white witnesses attempt to recognize black subjects; in such circumstances ‘[t]he impairment in ability to recognize black faces is substantial.’” People v. McDonald, 690 P.2d 709, 720 (Cal. 1984) (en banc) (quoting Sheri L. Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934, 938- 39 (1984)), overruled in part on other grounds by People v. Mendoza, 4 P.3d 265 (Cal. 2000); see also Rutledge, 28 Am. J. Crim. L. at 211; Johnson, Cross-Racial Identification Errors, 69 Cornell L. Rev. at 939-40. 15 Bjerk & Helland, supra n.5. 17 1. The Impact of Unconscious Bias The unconscious and unintentional biases commonly present in our society enhance the risks posed by unreliable cross-racial identifications for defendants of color. This is a serious risk even among those who disavow overt prejudice.16 Race undoubtedly plays a role, even if a subconscious one, in a person’s perceptions of the world and their decisions. See Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1126 (2011-2012) (“implicit biases”—or “attitudes or stereotypes that affect our understanding, decisionmaking, and behavior, without our even realizing it”—“exist, are pervasive, are large in magnitude, and have real-world effects”). Research has uncovered widespread tendencies among Americans, and whites in particular, to strongly associate blacks and Latinos with criminality—an association that is reinforced by media crime coverage that over-represent minorities as crime suspects.17 For example, Americans tend to significantly overestimate the proportion of crime committed by blacks and Latinos.18 The Supreme Court has very recently recognized the 16 See Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 Cal. L. Rev. 969 (2006). 17 The Sentencing Project, Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies, http://www.sentencingproject.org/wp-content/uploads/2015/11/Race-and- Punishment.pdf; see Jennifer L. Eberhardt et al, Seeing Black: Race, Crime, and Visual Processing, 87 J. Personality & Soc. Psychol., no. 6, 876 (2004). 18 See Ted Chiricos et al., Racial Typification of Crime and Support for Punitive Measures, 42 Criminology 359 (2004). 18 “poten[cy]” of expert testimony on the criminal propensity of a black defendant because it “appealed to a powerful racial stereotype—that of black men as ‘violence prone.’” Buck v. Davis, 137 S. Ct. 759, 776 (2017) (quoting Turner v. Murray, 476 U.S. 28, 35 (1986) (plurality opinion)). Moreover, research has linked racially unequal outcomes to implicit biases held by participants and key decision-makers in the criminal justice system. Due in large part to unintentional racial biases, there is evidence that some police officers tend to exercise discretion to stop and arrest people of color at disproportionately higher rates that are not explained by a difference in crime rates.19 White eyewitnesses may be more willing to hazard a guess when attempting to identify black people from lineups than when attempting to identify a white suspect, and tend to be more punitive than people of color.20 Studies have also found that judges, prosecutors, and defense lawyers are not immune to exhibiting bias favoring whites over blacks.21 Blacks are also more likely to be 19 Sentencing Project, Black Lives Matter, supra n.11. 20 See Andrew E. Taslitz, Wrongly Accused: Is Race a Factor in Convicting the Innocent?, 4 Ohio St. J. Crim. L. 121 (2012); James M. Doyle, Discounting the Error Costs: Cross-Racial False Alarms in the Culture of Contemporary Criminal Justice, 7 Psychol., Pub. Pol’y & L, no. 1, 253-62 (2001). 21 Jonathan A. Rapping, Implicitly Unjust: How Defenders Can Affect Systemic Racist Assumptions, 16 N.Y.U. J. Legislation & Pub. Pol’y 999, 1022-42) (2013) (suggesting that defense attorneys may exhibit racial bias in how they triage their heavy caseloads); Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195, 1210 (2009); Theodore Eisenberg & Sheri L. Johnson, Implicit Racial Attitudes of Death 19 struck from juries, despite research showing that a diverse jury tends to deliberate longer and more thoroughly than an all-white jury.22 Research also demonstrates that that implicit bias about a defendant’s race shapes jurors’ perceptions and decisions about criminal defendants.23 White jurors are substantially more likely to convict black defendants than white defendants based on similar evidence, tend to more readily believe that blacks will continue to be dangerous in the future, and are more likely to ignore mitigating evidence.24 Penalty Lawyers, DePaul L. Rev. 1545, 1546-51 (2004); Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795 (2012); L. Song Richardson & Phillip Atiba Goff, Implicit Racial Bias in Public Defender Triage, 122 Yale L.J. 2626 (2013); Andrea D. Lyon, Race Bias and the Importance of Consciousness for Criminal Defense Attorneys, 35 Seattle U. L. Rev. 755 (2012). 22 Catherine M. Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531 (2012); William J. Bowers et al., Crossing Racial Boundaries: A Closer Look at the Roots of Racial Bias in Capital Sentencing When the Defendant Is Black and the Victim Is White, 53 DePaul L. Rev. 1497 (2004); Shamena Anwar et al., The Impact of Jury Race in Criminal Trials, 127 Quarterly J. Econ. 1017 (2012). 23 Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 338 (2010); Samuel R. Sommers & Phoebe C. Ellsworth, White Juror Bias: An Investigation of Prejudice Against Black Defendants in the American Courtroom, 7 Psychol. Pub. Pol’y & L. 201, 255 (2001); Samuel R. Sommers & Phoebe C. Ellsworth, Race in the Courtroom: Perceptions of Guilt and Dispositional Attributions, 26 Personality & Soc. Psychol. Bull. 1367 (2000); Tara L. Mitchell et al., Racial Bias in Mock Juror Decision-Making: A Meta-Analytic Review of Defendant Treatment, 29 Law & Hum. Behav. 621, 627–28 (2005); Samuel R. Sommers & Phoebe C. Ellsworth, How Much Do We Really Know About Race and Juries? A Review of Social Science Theory and Research, 78 Chi.-Kent L. Rev. 997 (2003). 24 See, e.g., Sommers & Ellsworth, White Juror Bias, 7 Psy. Pub. Pol’y at 217; see also Justin Levinson et al., Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St. J. Crim. L. 187, 207 (2010) (finding that mock jurors possessed an implicit association between “black” and “guilty”). 20 Studies of mock jurors further showed that jurors exhibited skin-color bias in assessing evidence: they were more likely to view ambiguous evidence as indication of guilt for darker-skinned suspects than for lighter-skinned suspects.25 2. The Cost of Wrongful Convictions The disproportionate risk of wrongful convictions imposes serious and unjust costs on innocent people of color, on their families and communities, and on society at large. Because of their overrepresentation in the criminal justice system, individuals and communities of color are disproportionately affected by the burdens associated with wrongful convictions. a. Personal and Familial Costs of Wrongful Convictions The consequences of a wrongful conviction are far-reaching, impacting individuals and families in multiple ways during incarceration and long after release. A person convicted wrongfully often loses years of his life to imprisonment. People who were exonerated between 1989 to November 2016 spent an average of nine years in prison before being released; 37% served ten years or more for crimes they did not commit.26 For the wrongfully convicted, 25 Levinson & Young, 112 W. Va. L. Rev. at 338. 26 Nat’l Registry of Exonerations, Basic Patterns, http://www.law.umich.edu/special/ exoneration/Pages/Basic-Patterns.aspx (last visited Feb. 15, 2017). Of course, the experiences of exonerees provide an incomplete picture of the experiences of the wrongfully incarcerated, as relatively few successfully win an exoneration. Others languish for years under a wrongful deprivation of their liberties without ever being exonerated and face overwhelming challenges upon release. 21 years of unwarranted incarceration mean losing the ability to raise a family or watch their children grow, missing important milestones such as birthdays and graduations, missing opportunities to care for an elderly parent or sick family member, and to attend funerals of loved ones. See Jonathan M. Katz & Erik Eckholm, DNA Evidence Clears Two Men in 1983 Murder, N.Y. Times, Sept. 2, 2014, https://www.nytimes.com/2014/09/03/us/2-convicted-in-1983-north- carolina-murder-freed-after-dnatests.html (Henry McCollum, who spent three decades on death row before his exoneration, explained that “‘A long time ago, I wanted to find . . . a good wife, I wanted to raise a family . . . I never got a chance to realize those dreams.’”). Psychological consequences commonly associated with incarceration, including depression and post-traumatic stress disorder, also negatively impact the mental well-being and social relationships of people who were wrongfully convicted. Adrian Grounds, Psychological Consequences of Wrongful Conviction and Imprisonment, 46 Canadian J. Criminology & Crim. Just. 165 (2004); see Leslie Scott, “It Never, Ever Ends”: The Psychological Impact of Wrongful Conviction, 5 Am. U. Crim. L. Brief 10, 11 (Spring 2010). In addition, people who are wrongfully convicted miss critical years to build employment history, important work skills, and pursue a profession or business. See Fernanda Santos & Janet Roberts, Putting a Price on a Wrongful Conviction, N.Y. Times, Dec. 2, 2007, at 44, http://www.nytimes.com/2007/12/02/weekin 22 review/02santos.html (“It’s not just the years they lost and the mental anguish. . . . Your earnings are going to be impaired forever, your social interactions are going to be impaired forever.”). After release, a criminal conviction often creates a barrier to securing steady employment, contributing to racial economic inequality. In many localities, the mere fact of conviction can disqualify people from public assistance and housing, and even voting.27 See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 97-98 (2d ed. 2012) (describing the impact of a felony conviction, including: “You are no longer eligible for food stamps; you may be [legally] discriminated against in employment; you cannot vote for at least twelve years; and you are about to be evicted from public housing. Once homeless, your children will be taken from you and put in foster care”). Wrongful convictions also impose tremendous financial and emotional strain on families. See Ella Baker Center, Forward Together, Who Pays? The True Cost of Incarceration on Families, available at http://whopaysreport.org/who-pays-full- report/ (last visited Mar. 15, 2017). The economic burdens associated with a conviction of a loved one are substantial: families often struggle to cover the cost 27 Marc Mauer & Virginia McCalmont, The Sentencing Project, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits 7 (2013), available at http://sentencing project.org/doc/publications/cc_A%20Lifetime%20of%20Punishment.pdf; The Sentencing Project, State-Level Estimates of Felon Disenfranchisement in The United States, 2010 (July 2012), http://sentencingproject.org/wp-content/uploads/2016/01/State-Level-Estimates-of-Felon- Disenfranchisement-in-the-United-States-2010.pdf 23 of court and defense fees, transportation for visits to remote prisons, and phone and visitation fees.28 At the same time, many families experience a significant drop in income from the incarceration of a family member. See id. (finding that almost half of formerly incarcerated people surveyed contributed 50% or more of their families’ income). One survey of approximately 2,000 formerly incarcerated people and family members found that two of every three families experienced difficulty meeting basic needs as a result of their loved one’s incarceration. Id. Those close to the wrongfully convicted lose important emotional support from a parent, spouse, child, or sibling during the years of separation due to incarceration. Family members must also bear the psychological impact of the loss, and the social stigma that too often accompanies a conviction. See Joseph Neff, For Henry McCollum and Leon Brown, Freedom Has a Cost, The News & Observer (Jan. 31, 2015), newsobserver.com/news/local/article10240319.html; see generally Barry Scheck et al., Actual Innocence: When Justice Goes Wrong and How to Make It Right (2003); Saundra D. Westervelt & Kimberly J. Cook, Life After Death Row: Exonerees’ Search for Community and Identity (2012). 28 Bryce Covert, Here’s How Much It Costs to Have a Family Member in Prison, ThinkProgress, Sept. 15, 2015, https://thinkprogress.org/heres-how-much-it-costs-to-have-a- family-member-in-prison-64cd7c3a37dd#.wnh9x8xua (last visited Mar. 15, 2017); Rowan Moore Gerety, Visit A Loved One In Jail? It’ll Cost You, NWPR, Jan. 13, 2015, http://nwpr.org/post/visit-loved-one-jail-itll-cost-you (last visited Mar. 15, 2017); Eli Hager & Rui Kaneya, The Prison Visit That Cost My Family $2,370, The Marshall Project, Apr. 12, 2016, https://www.themarshallproject.org/2016/04/12/the-hawaii-prison-visit-that-cost-my-family-2- 370. 24 b. Systemic Costs of Wrongful Convictions Unreliable verdicts and resulting wrongful convictions also undermine our justice system. Wrongful convictions allow perpetrators to avoid justice while innocent people are sent to jail, threatening public safety.29 In one example, while brothers Henry McCollum and Leon Brown sat in prison for a rape and murder they did not commit—having been coerced to confess—another man committed a remarkably similar crime and confessed just weeks after the two brothers were arrested; but “[o]fficials never explained why, despite the remarkable similarities in the crimes, they kept their focus on Mr. McCollum and Mr. Brown even as the men proclaimed their innocence.” Katz & Eckholm, DNA Evidence Clears Two Men in 1983 Murder. After spending three decades in prison, McCollum and Brown were finally released when the DNA evidence was linked not to them but to the other man, thereby revealing that no physical evidence tied the brothers to the crime. NBC News/AP, Wrongfully Convicted Brothers, Each Get $750K Payout, http://www.nbcnews.com/news/us-news/henry-mccollum-leon-brown-wrongfully- convicted-brothers-each-get-750k-n420281 (last visited Mar. 15, 2017). Wrongful convictions also impose financial costs on society and our 29 A study conducted by the Better Government Association and the Center on Wrongful Convictions, which tracked exonerations in Illinois from 1989 through 2010, determined that “while 85 people were wrongfully incarcerated, the actual perpetrators were on a collective crime spree that included 14 murders, 11 sexual assaults, 10 kidnappings and at least 62 other felonies.” Erik Kain, The High Cost of Wrongful Convictions, Forbes, June 29, 2011, https:// www.forbes.com/sites/erikkain/2011/06/29/the-high-cost-of-wrongful-convictions/ #8c330a472ec5. 25 institutions of justice, resulting in years of legal proceedings to overturn the conviction and collateral civil litigation and settlements to recover damages for the wrongful incarceration.30 Moreover, the fact that failures of the justice system are disproportionately falling on minority, and particularly black communities, erodes public trust in the integrity and legitimacy of our criminal justice system. See Peña-Rodriguez v. United States, 580 U.S. __, No. 15–606, slip op. at 15-16 (Mar. 6, 2017) (“[R]acial bias [is] a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice.”); Buck, 137 S. Ct. at 778 (noting that “‘[d]iscrimination on the basis of race . . . is especially pernicious in the administration of justice’” as it “‘poisons public confidence’ in the judicial process” and “injures not just the defendant, but ‘the law as an institution, … the community at large, and . . . the democratic ideal reflected in the processes of our courts.” (citations omitted)).31 Unreliable and unequal verdicts due to mistaken identifications “pose a serious danger to defendants and the integrity of our justice system.” Marshall, 26 N.Y.3d at 502 (citing United States v. Wade, 388 U.S. 218, 30 See Meg O’Connor, City Makes Slow Progress in Effort to Prevent Wrongful Convictions, Gotham Gazette, Jan. 24, 2017, http://www.gothamgazette.com/city/6726-city- makes-slow-progress-in-effort-to-prevent-wrongful-convictions (noting that wrongful convictions cost New York tens of millions of dollars in settlements). 31 In decisions addressing racial discrimination in jury selection, this Court has found that discrimination on the basis of race “undermines public confidence in the fairness of justice.” People v. Jenkins, 75 N.Y.2d 550, 557-58 (1990). 26 228 (1967) (“The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”); People v. Riley, 70 N.Y.2d 523, 531 (1987) (“The complex psychological interplay and dependency of erroneously induced identification . . . must be vigilantly guarded against because [it] drives right into the heart of the adjudicative guilt or innocence process affecting the person accused and identified.”); People v. Caserta, 19 N.Y.2d 18, 21 (1966) (“One of the most stubborn problems in the administration of the criminal law is to establish identity by the testimony of witnesses to whom an accused was previously unknown, from quick observation under stress or when . . . there was no particular reason to note the person’s identity.”)). The well-recognized and persistent threat of inequitable outcomes in criminal prosecutions demonstrates the need for this Court to maintain its tradition of creating and preserving sensible procedural safeguards that ensure justice for the accused and fairness for our society as a whole. See Carmel, 70 N.Y.2d at 17 (discussing the Court’s concern with “constitutional and procedural safeguards designed to maintain the integrity of the judicial system and to protect criminal defendants from overreaching governmental actions”); Vilardi, 76 N.Y.2d at 77 (creating a protective constitutional rule to avoid prosecutorial non-disclosure that is “serious in its potential to undermine the fairness of [] trial”); Settles, 46 N.Y.2d at 162-63 (observing that need to “safeguard both [] substantive and procedural 27 rights is inviolable and fundamental to our form of justice . . . not only to insure the rights of the individual defendant but for the protection and well-being of society as a whole”). And, as recently emphasized by the United States Supreme Court, “there is a sound basis to treat racial bias with added precaution. A constitutional rule that racial bias in the justice system must be addressed . . . is necessary to prevent a systemic loss of confidence in jury verdicts[.]” Peña-Rodriguez, 580 U.S. __, No. 15–606, slip op. at 16-17 (evidentiary rule prohibiting jurors from testifying about deliberations must give way where there was clear evidence that a juror relied on racial stereotypes or animus to convict a defendant). The rule proposed by Mr. Boone is a sensible step to both safeguard the rights of criminal defendants and promote the integrity of our justice system. III. The Court Should Ameliorate the Risk of Wrongful Convictions Due to Erroneous Cross-Racial Identifications by Requiring a Presumptive Cross-Racial Jury Instruction. A presumptive cross-racial jury instruction is a simple and efficient measure to protect defendants of color from the risk of wrongful conviction due to unreliable cross-racial identifications. Despite the proven unreliability of cross- racial identification evidence and significant rate of error, New York trial courts continue to allow jurors to consider this evidence without cautioning them that cross-racial eyewitness identifications can be flawed. Compounding the problem, 28 eyewitness evidence tends to have a powerful effect on jurors, who tend to be underinformed about reliability problems associated with eyewitness identifi- cations in general and cross-racial identifications in particular. The cross-racial jury instruction is thus necessary to guide jurors in their assessment of cross-racial eyewitness identification evidence, ensure more well informed verdicts, and ameliorate the risk of wrongful convictions. Much like the procedural protections of the right to counsel, the warrant requirement, and the right to evidence held by the state—all which this Court has zealously fortified32—jury instructions are an essential procedural safeguard in our system of justice. “The jury is a central foundation of our justice system and our democracy.” Peña-Rodriguez, 580 U.S. __, No. 15–606, slip op. at 1. Our system entrusts jurors with the awesome responsibility of deciding the guilt or innocence of another person. As this Court recognized, “[t]he court’s [jury] charge is of supreme importance to the accused. It should be the safeguard of fairness and impartiality and the guarantee of judicial indifference to individuals.” People v. Owens, 69 N.Y.2d 585, 589 (1987) (quoting People v. Odell, 230 N.Y. 481, 487 (1921)). Other courts have already concluded that a presumptive jury instruction is necessary to address the risks associated with unreliable cross-racial identifi- 32 See discussion in Part I. 29 cations.33 A presumptive cross-racial jury identification instruction is critical to protect criminal defendants because of jurors’ overreliance on eyewitness evidence. Jurors tend to place greater weight on eyewitness evidence over other evidence, even when faced with exculpatory evidence. In other words, without an explanation of the shortcomings of eyewitness evidence, juries tend to believe that eyewitness identification is a highly reliable form of evidence. See Rutledge, They All Look Alike, 28 Am. J. Crim. L. at 210; Elizabeth Loftus, Eyewitness Testimony 33 Commonwealth v. Bastaldo, 32 N.E.3d 873, 877 (Mass. 2015) (“[A] cross-racial instruction should always be included when giving the model eyewitness identification instruction, unless the parties agree that there was no cross-racial identification.”); State v. Henderson, 27 A.3d 872, 926 (N.J. 2011) (requiring a cross-racial identification instruction “whenever cross-racial identification is in issue at trial.”). In deciding to require the issuance of a cross-racial instruction, the Supreme Court of New Jersey wrote that the new rule is “significant because eyewitness identifications bear directly on guilt or innocence. At stake is the very integrity of the criminal justice system and the courts’ ability to conduct fair trials.” Henderson, 27 A.3d at 878–79. The court further expressed that the rule would “protect the rights of defendants[] by minimizing the risk of misidentification.” Id. at 879. Hawaii and Utah have adopted similar instructions, albeit less sweeping: they require an eyewitness identification instruction whenever identification is a central issue and the defense has requested an instruction. See State v. Cabagbag, 277 P.3d 1027, 1038 (Haw. 2012); State v. Long, 721 P.2d 483, 492 (Utah 1986); but see Smith v. State, 880 A.2d 288, 300 (Md. 2005) (acknowledging the own-race bias but finding the connection to eyewitness identification insufficiently established); State v. Allen, 294 P.3d 679, 685 (Wash. 2013) (en banc) (acknowledging scientific research but finding the studies had not shown that a jury instruction would be more effective than other means). See also Brodes v. State, 614 S.E.2d 766, 771 (Ga. 2005) (“In light of the scientifically documented lack of correlation between a witness’s certainty in his or her identification of someone as the perpetrator of a crime and the accuracy of that identification, . . . we can no longer endorse an instruction authorizing jurors to consider the witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification.”). 30 9 (Harvard Univ. Press 1996); R.C.L. Lindsay et al., Can People Detect Eyewitness-Identification Accuracy Within and Across Situations?, 66 J. Applied Psychol. 79 (1981). This tendency is a barrier to jurors’ ability to accurately weigh evidence before them, especially in light of the proven lack of reliability of cross- racial identification. Furthermore, a cross-racial identification jury instruction is necessary to educate jurors on the fallibility of cross-racial identifications and correct jurors’ misperceptions about eyewitness reliability. United States v. Brownlee, 454 F.3d 131, 142 (3d Cir. 2006) (“[W]hile science has firmly established the inherent unreliability of human perception and memory, this reality is outside the jury’s common knowledge and often contradicts jurors’ commonsense understandings.”). The average juror is unaware that cross-racial identification is a highly unreliable form of evidence. See, e.g., United States v. Smith, 621 F. Supp. 2d 1207, 1215 (M.D. Ala. 2009) (“Chief among the[] factors [that impact witness accuracy] is the information concerning cross-racial eyewitness identifications; the evidence concerning the reliability of such identification is stunning and robust and . . . not likely well understood by juries.”); United States v. Lester, 254 F. Supp. 2d 602, 612 (E.D. Va. 2003) (recognizing that cross-racial misidentification “seem[s] to fall outside the common sense of the average juror”); see also Sarah L. Desmarais & J. Don Read, After 30 Years, What Do We Know About What Jurors Know? A 31 Meta-Analytic Review of Lay Knowledge Regarding Eyewitness Factors, 35 Law & Hum. Behav. 200, 203 (2011); Tanja R. Benton et al., Eyewitness Memory Is Still Not Common Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20 Applied Cognitive Psychol. 115, 120 (2006). An instruction is required to address this disconnect between jurors’ perceptions and evidence of lack of reliability of cross-racial identifications. Jury instructions are the best method to educate jurors and minimize the risk of wrongful conviction.34 The instruction grants the jurors explicit permission from the court to consider the hidden impact of race in the reliability of an identification.35 Without this official sanction, jurors may be hesitant to consider 34 Nat’l Res. Council, Identifying the Culprit, supra n.5 (recommending that courts use clear and concise jury instructions to convey information factors that jury should consider in assessing eyewitness identifications). 35 Confronting race in a jury instructions may also assist in counteracting implicit biases held by jurors. Whether consciously or subconsciously, race often plays a role in a person’s perceptions of the world. See Kang et al., 59 UCLA L. Rev. at 1126 (“[R]esearchers have provided convincing evidence that implicit biases exist, are pervasive, are large in magnitude, and have real-world effects.”). Studies have “suggest[ed] that implicit bias—not explicit, concealed bias, or even any degree of conscious focus on race—influenc[es] how jurors assess[] the evidence in [a] case.” Id. at 1145 (citing Levinson & Young, 112 W. Va. L. Rev. at 338); see Justin D. Levinson et al., 8 Ohio St. J. Crim. L. at 207. Moreover, several studies have found that the effects of implicit racial biases are manifested to a greater degree when race is not explicitly on the jurors’ minds. E.g., Kang et al., 59 UCLA L. Rev. at 1143–44 (citing Samuel R. Sommers & Phoebe C. Ellsworth, “Race Salience” in Juror Decision-Making: Misconceptions, Clarifications, and Unanswered Questions, 27 Behav. Sci. & L. 599 (2009); Samuel R. Sommers & Phoebe C. Ellsworth, White Juror Bias: An Investigation of Prejudice Against Black Defendants in the American Courtroom, 7 Psychol. Pub. Pol’y & L. 201, 255 (2001); Samuel R. Sommers & Phoebe C. Ellsworth, Race in the Courtroom: Perceptions of Guilt and Dispositional Attributions, 26 Personality & Soc. Psychol. Bull. 1367 (2000)). 32 the effects of race, including the effect of own-race bias, implicit or otherwise, when weighing the reliability of an eyewitness identification. In addition, a rule that requires the Court, rather than defense counsel, to raise the risk of mistaken identification due to the own-race bias eliminates the possibility that jurors would view a defendant’s introduction of race as an issue in the case with suspicion, or as an indication of weaknesses in the defense. The government’s brief acknowledges that valid strategic decisions may exist for defendants’ counsel to avoid affirmatively raising the issue of race—which is precisely a reason the proposed instruction is necessary. See Respondent Br. 78-80.36 Given the wide acceptance of the prevalence of own-race bias and its impact on the reliability of eyewitness cross-racial identification evidence, there is no viable justification for declining to arm jurors with knowledge about this common error of cognition unless the parties stipulate that the instruction is not necessary. A presumptive instruction poses a minimal intrusion on the trial process, while at the same time ensuring that verdicts are informed and reliable. Importantly, the instruction does not preclude the presentation of cross-racial eyewitness evidence 36 Moreover, as the Court’s own tradition suggests, it is fundamentally the role of the court, rather than individual parties, to ensure fairness and protect defendants’ constitutional rights. See, e.g., Scott, 79 N.Y.2d at 505 (observing that state courts have the “responsibility to interpret their own Constitutions”) (Kaye, C.J., concurring). This Court’s obligation to guarantee protections for criminal defendants and ensure the integrity of criminal trials compels it to require that jurors be given adequate tools to assess reliability before they are asked to decide whether to convict a defendant on the basis of eyewitness evidence. 33 but rather allows the jury to be better able to assess and weigh the evidence presented. Nor will a presumptive instruction result in a significant alteration of the trial process or introduce additional costs and burdens. Indeed, requiring that the instruction be issued in all cases obviates the costs associated with the introduction of expert testimony or the expenditure of time on cross-examination regarding racial contacts, as proposed by the government in this case. Significantly, the jury instruction is already available to the Court and can be readily implemented. The Court can safeguard the rights of criminal defendants simply by mandating the issuance of an instruction already included in New York Pattern Jury Instructions in 2011 and already routinely issued by many state courts. See Identification, C.J.I.2d [N.Y.]—Final Instructions 19, 22 & n.59, available at www.nycourts.gov/judges/cji/5-SampleCharges/CJI2d.Final_Instructions.pdf. The drafters carefully considered and crafted the language of that model charge37 and 37 The model charge states as follows: You may consider whether there is a difference in race between the defendant and the witness who identified the defendant, and if so, whether that difference affected the accuracy of the witness’s identification. Ordinary human experience indicates that some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. With respect to this issue, you may consider the nature and extent of the witness’s contacts with members of the defendant’s race and whether such contacts, or lack thereof, affected the accuracy of the witness’s identification. You may also consider the various factors I have detailed which relate to the circumstances surrounding the identification (and you may consider whether there is other evidence which supports the accuracy of the identification). 34 recommended that New York trial courts give the instruction “whenever cross- racial identification is at issue” and “regardless of whether an expert testifies on the topic of cross-racial identification.” Id. at 22 & n.59. The addition of this charge to the state pattern jury instructions reflects an acknowledgement of the substantial risk of wrongful conviction presented by cross-racial eyewitness identifications and a consensus that a specific instruction is required to protect defendants from that risk. It takes into account the recommendation of the New York State Justice Task Force—which consisted of a distinguished set of prosecutors, defense attorneys, judges, police chiefs, legal scholars, legislative representatives, executive branch officials, forensic experts and victims’ advocates—that New York’s “jury instructions be revised to include an instruction on cross-racial identification” whenever cross-racial identification “is an issue.” See Task Force, Recommendations for Improving Eyewitness Identifications 1, at 5 (2011), available at http://www.nyjusticetaskforce.com/2011 _02_01_Report_ID_Reform.pdf. New York’s model instruction is also in line with the ABA’s recommendation that jurisdictions enact a cross-racial instruction because “[t]he issue of cross-racial eyewitness identification is a serious problem in the United States.” Crim. Justice Section, Am. Bar. Ass’n, Report to House of Id. at 22. Importantly, the charge does not require that jurors deem all cross-racial identifications unreliable. Rather, it allows the jury to consider whether the cross-racial nature of an identification affected the reliability of the identification. 35 Delegates 104D, at 2 (2008). In short, New York has already taken an important, but incomplete, step toward tackling the problem of wrongful convictions based on mistaken cross- racial identifications by adopting a model cross-racial jury instruction.38 The integrity of our criminal justice system requires application of the New York model instruction across all criminal cases. The cross-racial jury instruction 38 In considering whether to require the presumptive issuance of the instruction, amici further request that the Court consider the diversity of the citizenry in New York. As a highly diverse state with a larger percentage of non-whites than most other states, the dangers of cross- racial identification pose a significant problem to the people of New York. Whereas the United States’ population as a whole is 27.6% people of color, New York’s consists of 34.3%, according to the most recent decennial census. See U.S. Census Bureau, U.S. Dep’t of Commerce, 2010 Census of Population & Housing: Summary Population & Housing Characteristics 4–5 (2013), available at https://www.census.gov/prod/cen2010/cph-1-1.pdf (the “2010 Census”). The concern for cross-racial misidentification and its potential impact on the diverse citizenry of the state is not limited to one particular area and is instead statewide. New York has many diverse metropolitan areas; indeed, more people of color and minority groups live in the cities and urban areas of New York State than most of the country. See, e.g., id. at 4–5 (United States), 148 (Albany), 154 (Buffalo), 184 (New York City), 190 (Poughkeepsie), 192 (Rochester), 200 (Syracuse). The most obvious example is the nation’s most populous city, New York City, where this case arose—people of color comprise a majority of the population of New York City, which is only 44% white. Id. at 184. But New York State has several other large diverse cities as well. For example, the populations of Albany and Syracuse are both around 44% non-white, id. at 148, 200; Buffalo and Poughkeepsie are both about 50% non-white, id. at 154, 190; and Rochester is about 56.4 % non-white, slightly more diverse even than New York City, id. at 192. Moreover, as acknowledged by the ABA, the problem of cross-racial misidentification steadily increases in cities due to the influx of immigration: “The issue is becoming of greater importance in many urban areas of the United States that continue to receive an influx of immigrants from countries around the world.” ABA Report 104D at 2. Finally, it is important to note that increased exposure to people of diverse backgrounds does not resolve the problem of cross-racial identifications. See Boone Reply Br. at 16-18. Amici therefore urge this Court to adopt the proposed presumptive jury charge to protect the people of New York. 36 presents a straightforward, readily accessible, and easily applied rule to address a serious criminal justice problem. The NAACP and its New York State Conference respectfully request that this Court take an important step to enhance the integrity of the criminal justice system, as it has in the past, and require that the cross-racial instruction be issued in all criminal cases. CONCLUSION For the foregoing reasons, the NAACP and its New York State Conference urge the Court to hold that trial courts must issue a cross-racial eyewitness identification jury instruction in all criminal cases unless all parties to a case stipulate that no cross-racial identification is at issue. Dated: March 16, 2017 NATIONAL ASSOCIATION FOR THE ADVANCEMENTOFCOLOREO PEOPLE 4805 Mt. Hope Drive Baltimore, MD 21215 NA TJONAL AssOCIA TION FOR THE ADVANCEMENT OF COLOREOPEOPLE NEW YORK STATE CONFERENCE 5 BryantPark, Suite 820 1065 6th Avenue NewYork,NY 10018 37 Respectfully submitted, EBO P. AOEGBILE JENNY R. A. PELAEZ KEVIN J. HOLT WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY l 0007 Tel.: (212) 295-6717 Fax: (212) 230-8888 CHRISTOPHER D. DODGE WILMER CUTI,ER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Attorneys for Movants NAACP and NAACP New ork.State Conference