The People, Respondent,v.Otis Boone, Appellant.

Brief

N.Y.October 17, 2017

To be Clfl!,YCd ~y LEIL\ HULL (1 5 minutes) Court of Appeals STATE OF NEW YORK, PEOPLE OF THE STATE OF NEW YORK, Respondent, - again.rt- OTIS BOONE, Defendant- Appellant. REPLY BRIEF FOR DEFENDANT- APPEllANT September 26, 2016 LYNN W. L. FAHEY LEIL\ HULL Attorneys for Defendant-Appellant 111 John Street, 9'h Floor New York, N.Y. 10038 (212) 693-0085 APL- 2016-00015 TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................... 1 APPELLANT'S CLAIM THAT THE COURT SHOULD HAVE GIVEN THE CROSS-RACIAL IDENTIFICATION CHARGE COUNSEL REQUESTED IS PRESERVED FOR APPELLATE REVIEW AND THE COURT'S REFUSAL TO GIVE IT WAS REVERSIBLE ERROR .............................................................................................................. 1 CONCLUSION .......................................................................................................... 21 1 TABLE OF AUTHORITIES CASES Commonwealth v. Bastaldo, 32 N.E.3d 873 (Mass. 2015) .................................. passim Commonwealth v. Gomes, 22 N.E.3d 897 (Mass. 2015) ............................................ 11 People v. Abnry, 13 N.Y.3d 251 (2009) ..................................................................... 14 People v. Chestnut, 19 N.Y.3d 606 (2012) ................................................................... 3 People v. De Mauro, 48 N.Y.2d 892 (1979) ................................................................. 4 People v. Finch, 23 N.Y.3d 408 (2014) ........................................................................ 6 People v. Flqyd, 21 N.Y.3d 892 (2013) ........................................................................ 7 People v. Grt!J, 86 N. Y.2d 10 (199 5) ........................................................................... 3 People v. Gross, 26 N.Y.3d 689 (2016) ........................................................................ 4 People v. Herner, 85 N. Y.2d 877 (199 5) .................................................................... 13 People v. Knight, 87 N.Y.2d 873 (1995) ....................................................................... 7 People v. u Mieux, 51 N.Y.2d 981 (1980) ................................................................. 7 People v. uGrand, 8 N.Y.3d 449 (2007) ............................................................... 3, 14 People v. uisner, 73 N.Y.2d 140 (1989) ...................................................................... 7 People v. Mallqy, 55 N.Y.2d 296 (1982) ...................................................................... 6 People v. Marshall, 26 N.Y.3d 495 (2015) ................................................................. 13 People v. Mims, 30 A.D.3d 539 (2d Dep't 2006) ..................................................... 14 11 People v. Nicholson, 26 N.Y.3d 813 (2016) .................................................................. 4 People v. Peque, 22 N.Y.3d 168 (2013) ...................................................................... 12 People v. Prado, 4 N.Y.3d 725 (2004) .......................................................................... 5 People v. Resek, 3 N.Y.3d 385 (2004) ...................................................................... 4, 6 People v. Rodrigue~ 98 A.D.3d 530 (2d Dep't 2012) ............................................... 14 People v. Rudolph, 21 N.Y.3d 497 (2013) .................................................................. 12 People v. Santiago, 17 N.Y.3d 661 (2011) .................................................................. 14 People v. Slaughter, 78 N.Y.2d 485 (1991) ................................................................... 7 People v. Wails, 91 N.Y.2d 987 (1998) ................................................................ 4, 5, 6 People v. Whalen, 59 N.Y.2d 273 (1983) ..................................................................... 7 Ring v. Arizona, 536 U.S. 584 (2002) ....................................................................... 12 State v. Alien, 294 P.3d 679 (Wash. 2013) ............................................................... 10 State v. Cabagbag, 277 P.3d 1027 (Haw. 2012) ........................................................ 13 State v. Henderson, 27 A.3d 872 (N.J. 2011) ................................................. 10, 11, 13 State v. Jones, 878 N.W.2d 379 (Neb. 2016) ............................................................ 10 United States v. King, 751 F.3d 1268 (11th Cir. 2014) .............................................. 10 111 STATUTES C.P.L. § 470.05(2) ....................................................................................................... 3 C.P.L. § 470.05(2) ....................................................................................................... 3 OTHER AUTHORITIES American Bar Association Poliry 104D: Cross-Racial Identification, 37 SW. U.L. REV. 917 (2008) .................................................................................................. 13, 14, 15 Andrew E. Taslitz, "Curing" Own Race Bias: What Cognitive Science and the Henderson Case Teach About ImprovingJurors' Ability to Identify Race-Tainted Eyewitness E"or, 16 N.Y.U.J. LEGIS. & PUB. PoL'Y 1049 (2013) .............. 13, 17 Cross-Racial Eyewitness Identification, Jury Instructions, and Justice, 11 Rutgers Race & L. Rev. 70 (2009) .................................................................................................. 19 John C. Brigham et aL, The Influence of Race on Eyewitness Memory, in HANDBOOK OF EYEWI1NESS PSYCHOLOGY (Rod C. L. Lindsey et al., eds.) (2014) ......... 18 K. Suzanne Scherf & Lisa S. Scott, Connecting Developmental Trajectories: Biases in Face Processingjrom Infanry to Adulthood, 54(6) DEV. PSYCHOBIOLOGY 643 (2012) ····················································································································· 18 New Jersey Criminal Model Charges -Identification- Out of Court Identification Only, available at http:/ /www.judiciary.state.nj.us/ criminal/ charges/ idoutct. pdf (last accessed Sept. 19, 20 16) .......................... 19 lV Recommendations for Improving Eyewitness Identifications, New York State Justice Task Force (February 2011), at 1, available at http:/ /www.nyjustice taskforce.com/2011_02_01_Report_ID_Reform.pdf (last visited February 4, 2016) ("New York Task Force Recommendations') .......................................... 12, 15 RichardS. Schmechel, et al, Bryond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics J. 177 (2006) .................................. 9 Supreme Judicial Court Stuc!J Group on Eyewitness Evidence: Report and Recommendations to the Justices Ouly 25, 2013) .................................................................................. 11 CONSTITUTIONAL PROVISIONS U.S. Const., Amend. XIV ........................................................................................ 20 N.Y. Const. Art. I,§ 6 .............................................................................................. 20 v COURT OF APPEALS THE STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- OTIS BOONE, Defendant - Appellant. PRELIMINARY STATEMENT This brief is submitted in reply to the Brief for Respondent. The time for filing has been extended to September 26, 2016. ARGUMENT APPELLANT'S CLAIM THAT THE COURT SHOULD HAVE GIVEN THE CROSS-RACIAL IDENTIFICATION CHARGE COUNSEL REQUESTED IS PRESERVED FOR APPELLATE REVIEW AND THE COURT'S REFUSAL TO GIVE IT WAS REVERSIBLE ERROR. There is no dispute that appellant's convictions for each robbery rested entirely on a single, cross-racial identification by a Caucasian complainant of an African-American suspect On appeal, appellant argues that he is entitled to a 1 new trial because the trial court refused to give the standard C.J.I. cross-racial identification instruction. The People contend that any error is unpreserved because counsel did not supply the court with the C.J .I. language and "abandoned" the issue by failing to renew his application with additional case law. On the merits, the People assert that the refusal to give a cross-racial instruction is not reversible error and that this subject should be presented only through expert testimony, not a jury instruction. Finally, they argue that the record was insufficient for the jury to draw any conclusions about the degree to which their different races undermined the reliability of either complainant's identification of appellant as the robber. The People are incorrect on all fronts. Counsel's request for the charge preserved the issue, and counsel did not abandon the application after the court denied it. The charge given in this case was insufficient in light of decades of scientific agreement on the unreliability of cross-racial identifications, which has prompted New York to adopt a pattern jury instruction on the subject and other states to require such jury instructions. Finally, the record here was sufficient because, as the People concede, each conviction relied on a single cross-racial identification; their claim that the defense must establish the nature of the complainant's contacts with African-Americans to be entitled to the charge is not based on any scientific consensus and would be unduly burdensome. 2 (A) The record does not support the People's claim that appellant's argument is unpreserved because counsel did not provide or specifically refer to the C.J.I. cross-racial identification instruction (Respondent's Br. at 5-6, 26- 27, 30-37). Counsel asked the court to give a "cross-racial I.D. charge" (A249), and then responded to the court's question, "what cross-racial I.D. charge? What are you talking about," by explaining that he was asking the court to "[c]harg[e] the jury of the fact that the identifications were made by white males of a black male" (A249). Counsel then notified the court that "there's a cross- racial charge" (A251). When the court said, ''You show me a copy of that charge," counsel responded "sure," after which the court denied the application, citing People v. LeGrand, 8 N.Y.3d 449 (2007) (A249-51). This was more than sufficient to preserve the claim for appellate review. The purpose of the preservation rule "is to bring the claim to the trial court's attention." People v. Grtry, 86 N.Y.2d 10, 20-21 (1995); see also People v. Chestnut, 19 N.Y.3d 606,611 n.2 (2012) ("preservation rule's 'specific objection' requirement should not be applied in [an] overly technical way ... ; nor should a party's adherence to this requirement focus on minutiae or emphasize form over substance"). Under C.P.L. § 470.05(2), moreover, an issue is preserved if, "in response to a protest by a party, the court expressly decided the question 3 raised on appeal." Once that occurs, defense counsel does not need to protest the ruling or make additional arguments. See People v. Resek, 3 N.Y.3d 385, 388 n.1 (2004) ("[w]e will not impose a preservation rule so extreme that defendant, to succeed, would have to antagonize the court or test its patience even further" because "such a rule would do nothing to advance the objectives of our preservation doctrine"). When the issue is a defendant's entitlement to a jury instruction, this Court has found lack of preservation only when counsel never requested the charge. See People v. Nicholson, 26 N.Y.3d 813, 830 (2016) Qack of a limiting instruction unpreserved when counsel "never asked for such instruction"); People v. De Mauro, 48 N.Y.2d 892, 893 (1979) (error unpreserved when "no pertinent request" for charge was made and "no exception was taken to the charge as given"). Here, counsel's request for an instruction, which alerted the court to the existence of the model charge, sufficiently apprised the court of the issue.1 1 None of the cases the People cite refutes this conclusion (see Respondent's Br. at 34-35). Nicholson, 26 N.Y.3d at 830, involved counsel's complete failure to ask for an instruction. People v. Walls, 91 N.Y.2d 987,988 (1998), ruled that the court's refusal to give an interested witness instruction was unpreserved when counsel did not specify to which witness the request pertained, a fact the court needed to know to decide the merits of the claim. Finally, People v. Gross, 26 N.Y.3d 689, 694 (2016), addressed whether a defendant laid an appropriate foundation for the court to consider the merits of a C.P.L. § 440.10 claim of ineffective assistance of counsel, an issue that is entirely inapplicable to this case. 4 The People's contention that counsel was obligated to marshal the exact case law and scientific studies appellant cites in his appellate brief (Respondent's Br. at 36) is antithetical to the rule that all counsel must do is apprise the court of the issue in order to preserve the claim. See People v. Walls, 91 N.Y.2d 987, 988 (1998) (defense is not required to submit proposed language to preserve a request for a jury instruction). The court here plainly understood counsel's request- that it apprise the jury of the "lack of reliability of cross-racial identification" (A250) - and denied the application on the grounds appellant 1s currently challenging on appeal. See People v. Prado, 4 N.Y.3d 725, 726 (2004) (even a general objection, when coupled with court's specific findings expressly deciding the issue, preserves matter for appeal). Nor is there any support in the record for the People's claim that counsel failed to make the court aware of the C.J.I. charge (Respondent's Br. at 32, 34). Counsel clearly notified the court that "there is a cross-racial charge" (A249), which, as the People concede, had been in place for 1 1/z years prior to appellant's trial (Respondent's Br. at 32). To accept the People's argument would mean that this Court must assume, and find acceptable, a trial judge's 5 ignorance of a standard jury instruction that had been in existence for over a year, even when told that it exists. 2 Appellant does not concede that defense counsel never provided the court with a copy of the C.J.I charge (Respondent's Br. at 19 n.8). That counsel responded "sure" when the court asked for a copy of the charge indicates that counsel did provide the court with the charge (A249). Any ambiguity is irrelevant, moreover, because "a defendant need not submit specific proposed language, either orally or in writing, to accompany a request for a jury instruction." Walls, 91 N.Y.2d at 988. This appeal involves the failure to give a'!Y charge on cross-racial identification, not a complaint about the content of the court's instruction on the requested subject. Finally, the People's claim that appellant abandoned his application after the court's express denial of it is meritless. Once a court has rendered its ruling, counsel is not obligated to renew or relitigate the matter further to preserve the claim. See People v. Finch, 23 N.Y.3d 408, 413 (2014) (as "a general matter, a lawyer is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected"); accord Resek, 3 N.Y.3d at 388 n.l. Contrary 2 The People's speculation that defense counsel must have meant some different cross-racial identification instruction (Respondent's Br. at 31 n.13, 32 n.14) makes little sense, given New York's long reliance on the C.J.I. Cj People v. Mallqy, 55 N.Y.2d 296, 303 (1982) (no error when the court adhered to the pattern instructions explaining reasonable doubt). 6 to the People's suggestion, the trial court did not reserve its decision in anticipation of counsel providing additional case law (Respondent's Br. at 33, 36), making their reliance on dicta contained in People v. Slaughter, 78 N.Y.2d 485, 492 (1991), inapplicable. That the court suggested it would reconsider the application it had "declin[ed]" if provided with more authority (A250-52), did not mean that counsel was required to renew his request in order to preserve it. Counsel's later response that he did not have additional case law to provide the court, which had already denied his application, was in no respect an express waiver of his claim. See People v. Leisner, 73 N.Y.2d 140, 147 (1989) (a claim is not abandoned unless counsel "demonstrated a clear intent to waive a position already preserved" (quoting People v. I.e Mieux, 51 N.Y.2d 981, 983 (1980)). Counsel simply had no additional case law to provide. Cf People v. Flqyd, 21 N.Y.3d 892 (2013) (matter preserved even though defense counsel admittedly could not "think of anything else" to add to the record). In sum, appellant's claim is preserved for appellate review. (B) Dismissing decades of scientific research and ignoring recent decisions from the Supreme Courts of Massachusetts and New Jersey, the People argue that this Court is constrained by People v. Whalen, 59 N.Y.2d 273 (1983), and People v. Knight, 87 N.Y.2d 873 (1995), to hold that a refusal to give the C.J.I. 7 cross-racial charge is never reversible error because jurors need no education about this subject (Respondent's Br. at 6-8, 41-45, 49-51). Furthermore, they insist that the expanded identification charge given in this case was sufficient, contend that expert testimony is the only proper means of educating jurors on the issue, and complain that the C.J.I.'s language is inaccurate (Respondent's Br. at 8, 67-71, 80). The People cavalierly dismiss decades of scientific research documenting (1) the significantly decreased reliability of stranger identifications when they are cross-racial, and (2) the lack of awareness of this among a significant number of laypersons (Respondent's Br. at 42-49, 48-49; Appellant's Main Br. at 23, 27-28). They argue that it is impossible to conclude that cross-racial identifications are generally unreliable even though a 2001 meta-analysis study involving 5,000 participants showed that they were 1.56 times (approximately 50 percent) more likely to inaccurately identify a person of a different race than their own (Respondent's Br. at 48-49).3 The People essentially ask this Court to reject the entire field of empirical science. 3 As explained to Respondent's counsel by phone prior to the filing of Respondent's brief, appellant made a typographical error in his main brief when stating that Christian A. Meissner & John C. Brigham, ThirtY Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Anafytic Review was published in 2011 when in fact it was published in 2001. Appellant apologizes for this inadvertent error. 8 For the same reason, the Court should not dismiss studies documenting a meaningful lack of awareness about the cross-race effect (Respondent's Br. at 43-46; Appellant's Main Br. 29). The People argue that awareness of the effect has increased in recent years while also asking this Court to dismiss a recent survey of Tennessee jurors documenting that 47 percent were unaware of this problem, claiming that it has no bearing on prospective jurors in New York State (Respondent's Br. at 44-45). But the People do not cite a single study showing that the number of persons unaware of the cross-race effect has fallen to such a statistically insignificant number as to obviate the need to educate jurors generally about this issue. Indeed, a 2004 survey of 1,007 potential jurors in Washington D.C.- a jurisdiction similar to New York City- showed that two-thirds were "ill-informed" and specifically that a large plurality of the survey respondents ( 48°/o) thought cross-race and same-race identification are of equal reliability, and many of the other respondents either did not know or thought cross- racial identifications would be more reliable (11 °/o). Only 36°/o of the survey respondents understand that a cross-racial identification may be less reliable. Richard S. Schmechel, et al, Bryond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence, 46 J urimetrics J. 1 77, 194-9 5, 200, 204 (2006). Accordingly, there is ample support for the need to educate jurors, as the C.J .I. committee obviously concluded when it added a cross-racial charge in 2011. 9 Although the People seek to rmrurmze the research presented in appellant's main brief, the Massachusetts and New Jersey Supreme Courts both drew on the same scientific consensus about the public's lack of knowledge about the adverse impact of differing races on identification reliability to hold that a jury instruction is required. Commonwealth v. Basta/do, 32 N.E.3d 873 (Mass. 2015); State v. Henderson, 27 A.3d 872 (N.J. 2011). The People hardly address either decision, except to refer to them as a "minority" view (Respondent's Br. at 49-50).4 Yet both courts relied on the most up-to-date and well-vetted assessment of the legal and scientific landscape on cross-racial identification evidence and adopted precisely the rule appellant advocates- that the charge must be given and is not within the court's discretion. In New Jersey, for example, the Henderson Court adopted the findings of a special master who had conducted a hearing and relied on extensive social science research about the unreliability of eyewitness identifications, including cross-racial identification. Henderson, 27 A.3d at 884, 896. That Court deemed 4 None of the cases the People rely on (Respondent's Br. at 53-54) offer compelling reasons to disregarded Henderson and Basta/do. In State v. Allen, 294 P.3d 679, 681-83 (Wash. 2013), the cross-racial identification instruction requested was inapplicable because the identification in that case was based on identifying factors other than the defendant's race and face. In both State v. Jones, 878 N.W.2d 379, 388-89 (Neb. 2016), and United States v. King, 751 F.3d 1268 (11th Cir. 2014), the jurisdiction had not adopted preapproved language for a cross-racial instruction. And, in Jones, 878 N.W.2d at 388, there was no evidence in the record that a cross-racial identification had occurred. The remainder of the cases cited have no bearing on this case. 10 the research and the conclusions drawn from it the "gold standard in terms of the applicability of social science research to the law," with its methodology and fmdings having been "tested and retested, subjected to scientific scrutiny through peer-reviewed journals, evaluated through the lens of meta-analyses, and replicated at times in real-world settings." Id at 916. Based on that compelling evidence, the Henderson Court overruled its prior precedent to hold that the charge must be given "whenever cross-racial identification is in issue at trial." Id at 926. Likewise, the Massachusetts Supreme Court in c;ommonwealth v. Gomes, 22 N.E.3d 897 (M:ass. 2015), and Basta/do, 32 N.E.3d at 877, relied on a 175-page Report and Recommendations issued by the Supreme Judicial Court Study Group on Eyewitness Evidence.5 That report, citing many of the same studies appellant referred to in his main brief, concluded that a cross-racial instruction must be given unless the parties agree that cross-racial identification is not at issue. Basta/do, 32 N.E.3d at 883; Supreme Judicial Court Stucfy Group on Eyewitness Evidence: Report and Recommendations to the Justices Ouly 25, 2013), at 31, 66-67, 121, 134 (hereinafter "Stucfy Group on Eyewitness Evidence Report and 5 The authors of the Report included judges, court staff attorneys, law professors, and police, reflecting the consultative approach the Massachusetts Judiciary undertook to update their jury instructions. See S tucfy Group on Eyewitness Evidence Report and Recommendations, at i. 11 Recommendations''); available at http:/ /www.mass.gov /courts/ docs/ sjc/ docs/ eyewitness-evidence-report2013.pdf (last visited Sept. 13, 2016).6 In other words, the Henderson and Basta/do holdings were based on the gold standard of scientific research, which was thoroughly and vigorously vetted. From that body of research, both Courts concluded that juries must be instructed about the unreliability of cross-racial identification and that whether to give such an instruction cannot be left to the discretion of a trial judge. These are ample grounds for this Court to depart from Whalen and Knight. Precedent is "not sacrosanct" and must be "overruled . . . where the necessity and propriety of doing so has been established." Ring v. Arizona, 536 U.S. 584, 608 (2002) (internal quotation and citation omitted). As this Court recently reiterated, when "a preexisting rule, once thought defensible, no longer serves the ends of justice or withstands the cold light of logic and experience," there is a compelling reason to move beyond it. People v. Peque, 22 N.Y.3d 168, 194 (2013); see also People v. Rudolph, 21 N.Y.3d 497, 501-02 (2013) (overruling 6 Notably, in 2009, this State convened a body similar to that in Massachusetts, creating the New York State Justice Task Force to institute reforms aimed at preventing wrongful convictions in eye-witness identification cases, which also recommended the use of a cross- racial identification charge. See Recommendations for Improving Eyewitness Identifications, New York State Justice Task Force (February 2011), at 1, available at http:/ /www.nyjusticetaskforce.com/2011_02_01_Report_ID_Reform.pdf (last visited February 4, 2016) ("New York Task Force Recommendation.?'). The People ignore this entirely when they call upon the Court to convene another body to consult with experts to redraft model jury instructions on cross-racial identification (Respondent's Br. at 80). 12 pnor precedent that did not gtve adequate weight to youthful offender treatment and holding that courts must consider youthful offender status). Just last year, while noting growing concerns about wrongful convictions based on the unreliable eye-witness evidence, this Court in People v. Marshall, 26 N.Y.3d 495, 504-06 (2015), reconsidered its prior holding in People v. Herner, 85 N.Y.2d 877 (1995), which had been interpreted to create a "so-called trial-preparation exception to a Wade hearing."7 Based on what is now known about the cross- race effect, allowing trial courts to reject requests for cross-racial identification charges can only result in undermining the truth-seeking function of our justice system.8 7 Although the People try to nurunuze the well accepted concern that cross-racial identifications have contributed to wrongful convictions (Respondent's Br. at 47-48), their own source acknowledges this to be true. See Andrew E. Taslitz, ''Curing" Own Race Bias: What Cognitive Science and the Henderson Case Teach About Improving Jurors' Ability to Identijj Race- Tainted Eyewitness Error, 16 N.Y.U. J. LEGIS. & PUB. PoL'Y 1049, 1051 (2013) ("[e]yewitness misidentifications are the most common contributor to wrongful convictions" and cross- racial effect is one important contributing factor to unreliable identification evidence). 8 The People's argument that Whalen and Knight should control because they pre-date some studies raising concerns about the unreliability of cross-racial identification (Respondent's Br. at 41) is belied by the fact that New York added a C.J.I. cross-racial charge only in 2011, well after these decisions. Indeed, sustained calls for cross-racial jury instructions have grown in the last decade, whether by the American Bar Association in 2008, see American Bar Association Poliry 104D: Cross-Racial Identijication, 37 SW. U.L. REV. 917, 920 (2008), or courts. See Basta/do, 32 N.E.3d at 883 (holding in 2015 that instruction is required); State v. Cabagbag, 277 P.3d 1027, 1039 (Haw. 2012) (mandating that a cross-racial identification instruction be given when requested if identification is at issue); Henderson, 27 A.3d at 916 (holding in 2011 that instruction is required). 13 There is no merit to the People's contention that the "the proper vehicle for educating jurors about cross-race effect is expert testimony, not a jury instruction" (Respondent's Br. at 71-72). The People ask this Court to adopt the unworkable rule that a defendant must always call an expert to educate jurors about the cross-race effect. As explained in greater detail in appellant's main brief (Appellant's Main Br. at 28-30, 42-43), requiring a defense expert in every cross-racial identification case would draw out countless criminal trials with motion practice and expert witness battles, as well as place an undue burden on defendants, particularly indigent defendants and those in smaller upstate counties, who may not be able to locate or afford an expert. See American Bar Association Poliry 104D: Cross-Racial Identification, 37 SW. U.L. REV. 917, 920 (2008) (opposing exclusive reliance on expert witnesses because of the limited number of qualified experts available).9 A neutral, straightforward, pattern jury instruction is far more equitable and efficient. Finally, there is no merit to the People's complaints about the language of the C.J.I. instruction. The instruction largely tracks the proposed charges the 9 As this Court is well aware, the People routinely challenge the admissibility of expert testimony in eye-witness identification cases. See, e.g., People v. Santiago, 17 N.Y.3d 661, 666 (2011); People v. Abnry, 13 N.Y.3d 251, 259 (2009); People v. LeGrand, 8 N.Y.3d 449, 452 (2007); People v. Young, 7 N.Y.3d 40, 44 (2006); People v. Rodrigue~ 98 A.D.3d 530, 532 (2d Dep't 2012); People v. Mims, 30 A.D.3d 539, 540 (2d Dep't 2006). 14 American Bar Association and the New York State Justice Task Force recommended be given irrespective of whether an expert is called. See New York Task Force Recommendations at 5; American Bar Association Poliry 104D: Cross-Racial Identification, 37 Sw. U.L. REv. at 920. Notably, the New York State Justice Task Force was comprised of "prosecutors, defense attorneys, judges, police chiefs, legal scholars, legislative representatives, executive branch officials, forensic experts and victims' advocates," who reviewed extensive materials and consulted with experts before making its recommendations. New York Task Force Recommendations at 1. This careful, consultative process is akin to the Massachusetts Supreme Judicial Court Study Group on Eyewitness Evidence, which also concluded that jury instructions are a proper and necessary vehicle to educate jurors about the cross-race effect. (C) Contrary to the People's position, the trial record met the requisite threshold for giving the cross-racial identification charge (Respondent's Br. at 56-66). The People concede that their case for each conviction rested entirely on a single cross-racial identification by a Caucasian witness of an African- American suspect (Respondent's Br. at 4). That concession alone refutes their contention that "there was no evidentiary basis for providing the C.J .I. cross- racial identification charge" (Respondent's Br. at 66). The People claim that 15 defense counsel was required to establish the degree of contact each complainant had with members of appellant's race. But this would impose an unfair and unnecessary burden on the defense. First, there is no scientific consensus that cross-racial contact (also known as the "contact theory" or "contact hypothesis") can cure the cross-race effect on identification reliability. While the detrimental effect of cross-racial identification is well established (see Appellant's Main Br. at 23-27), its causes remain unclear. See Basta/do, 32 N.E.3d at 881 n.14 ("Although there is a near consensus in the relevant scientific community that the [cross-race effect] may arise regardless of racial prejudice, there is no near consensus regarding the explanation for the [cross-race effect]" (citingJ.C. Brigham, L.B. Bennett, C.A. Meissner, & T.L. Mitchell, The Influence of Race on Eyewitness Memory, in 2 HANDBOOK OF EYEWI1NESS PSYCHOLOGY 267-268 (2007); Meissner & Brigham, Thirry Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Ana!Jtic Review, 7 PSYCHOL., PUB. POL'Y, & L. 3, 6-7, 21 (2001)). There is, therefore, no scientific consensus supporting the People's assumption that cross-racial contact can mitigate inaccuracy. Studies testing the impact of contact on cross-racial identification inaccuracy have produced inconsistent results. Basta/do, 32 N.E.3d at 881 n.14 (emphasizing "mixed results" and finding no scientific consensus that cross- 16 racial contact improves accuracy). As the People's own source explains, there is "mixed support for the contact hypothesis" because, although some "studies find that less interracial contact means a greater [other-race effect] while more means a lesser [other-race effect]," "several studies do not find this correlation." Taslitz, {(Curing" Own Race Bias, 16 N.Y.U. J. LEGIS. & PUB. PoL'Y at 1058-59. There are also other theories for explaining cross-racial bias that would belie the People's assumption that cross-racial contact could remedy the problem. See Basta/do, 32 N.E.3d at 881 n.14 (cross-racial inaccuracy may reflect the "general tendency to think categorically about members of the 'out group' (persons of other races) while thinking in an individuated manner about members of the 'in group' (persons of the same race)"); Taslitz, {(Curing" Own Race Bias, 16 N.Y.U. J. LEGIS. & PUB. PoL'Y at 1058-59 (separate from the "contact hypothesis," the "social categorization hypothesis" may play a critical role in explaining own-race bias). Other important contours of the "contact hypothesis" remain unsetded. In particular, the amount and type of contact necessary to mitigate cross-racial effect is unclear, especially in light of "compelling evidence that increasing relative contact with other group[sic] (e.g. race) does not necessarily" improve cross-race accuracy. K. Suzanne Scherf & Lisa S. Scott, Connecting Developmental Trajectories: Biases in Face Processing from 17 lnjanry to Adulthood, 54(6) DEV. PSYCHOBIOLOGY 643, at 4 (2012) (particular "kinds of experiences" are thought to improve recognition abilities and "simple exposure, or contact, with faces from another social category (e.g. race) is not sufficient to diminish biases 111 face recognition"); available at https: I I www.researchgate.net/ profile/Kathryn_Scherf/ publication/ 227 34349 3_Connecting_developmental_trajectories_Biases_in_face_processing_from_in fancy_to_adulthood/links/Ofcfd504014427ed87000000.pdf (last accessed Sept. 21, 2016). See also See John C. Brigham et al, The Influence of Race on Eyewitness Memory, in HANDBOOK OF EYEWI1NESS PSYCHOLOGY 267-68 (Rod C. L. Lindsey et al., eds.) (2014), available at http:/ /digitalcommons.utep. edu/ cgi/ viewcontent.cgi?article= 1027 &context=christian_meissner (last accessed Sept. 21, 2016) (contact plays a "small role" cross-race effect, but the type of contact rather than the amount may be most relevant). The lack of a consensus on the impact of cross-racial contact makes it inappropriate to condition a defendant's right to the charge on the defense eliciting a witness's relationships to members of the defendant's race. In fact, because there is no scientific agreement about the "contact hypothesis," the Basta/do Court approved of excising language about cross-racial contact from Massachusetts's charge. See Basta/do, 32 N.E.3d at 881 n.14 (''We are not convinced that there is a near consensus in the relevant scientific community in 18 support of the example given in this instruction"). Likewise, New Jersey does not include cross-racial contact as a relevant consideration in its model charge nor did the New York State Justice Task Force add it to its proposed charge. New Jersey Criminal Model Charges - Identification - Out of Court Identification Only, at 5, available at http:/ /www.judiciary.state.nj.us /criminal/ charges/idoutct.pdf Oast accessed Sept. 19, 2016); New York Task Force Recommendations at 5. And, ultimately, the C.J.I. charge, while mentioning cross-racial contact, states that jurors "may" consider it - presumably if evidence about it has been presented - but not that they must. The People, moreover, would impose an impracticable burden on defense counsel to question witnesses about their relationships with members of a defendant's race. Even the most carefully phrased questioning on this topic is likely to offend both the witness and jurors, who may equate it with accusations of racism. It would also be of very little value because people are often unaware of their own implicit bias. See Harvey Gee, Cross-Racial Eyewitness Identijication, Jury Instructions, and Justice, 11 Rutgers Race & L. Rev. 70, 101 (2009) ("Since there is no known and commonly understood correlation for the own- race effect, ordinary cross-examination will never elicit facts from which the jury can infer the impairment"). 19 In sum, under the C.J.I. charge, cross-racial contact is a factor a jury may consider, but evidence about it - as New Jersey and Massachusetts have determined based on the most reliable and up-to-date scientific knowledge - should not be the requirement for give the charge. Rather the appropriate threshold is when a cross-racial identification has occurred - a fact that is undisputed in this case. *** In sum, appellant is entided to a new trial in light of the court's refusal to charge the jury on cross-racial identification. U.S. Const., Amend. XIV; N.Y. Const. Art. I, § 6. 20 CONCLUSION FOR THE REASONS STATED ABOVE AND IN APPEllANT'S MAIN BRIEF, APPElLANT'S CONVICTION MUST BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Appellant 111 John Street, 9th Floor New Yor , New York 10038 (212) 9 0085 By: Leila Hull OJ Counsel September 23,2016 New York, New York 21