Tuesday, September 15, 2015

Race matters in eyewitness identifications

By now, most people have seen the video of former professional tennis player James Blake being roughed up by a New York cop in a case of mistaken identification.  (If you’re familiar with names like Agassi, Sampras, and Federer but haven’t heard of Blake, the guy was not a superstar but he was legit; he earned more than $1 million in prize money alone in 2008.)  And once this video surfaced, several worthwhile issues have been raised, including police brutality, police cover-ups, and disparate treatment of minorities.  But two topics have largely been glossed over.

First, we live in a culture where police are labeled “heroes” no matter what they do.  Even James Blake, the victim of a physically aggressive cop’s misidentification, felt the need to qualify his comments by stating that police, as a group, are heroes.  You know what, James Blake?  You were standing there, minding your own business, when a cop charged you and violently took you down for no reason, and then failed to report the incident to his superiors per police protocol.  It would have been okay if you didn’t praise the police as heroes.  (But in Blake’s defense, he did point out that this sort of police behavior is more common than we think, and nearly always goes undetected — except in the rare case when the victim is a wealthy, former professional tennis player.) 

But second, the far bigger and more substantive issue in this Blake matter is cross-racial eyewitness identification.  The cop and his supervisor said that Blake looked like the “twin brother” of the perpetrator they were after.  And in this case, the two government agents appear to be white, and Blake is black.  And we’ve known for well over thirty years that cross-racial identifications come with a high risk of misidentification.  Why?  Because eyewitness identifications are deeply flawed to begin with and, worse yet, we are very bad at identifying people outside of our own race.

Now, in this case, it was easy for Blake to prove that he’s a quasi-celebrity and wasn’t involved in the $18,000 identity theft crime that the police were investigating.  But in most cases — especially in cases of common street crime — a black guy in Blake’s position would not only be arrested, but might also be charged, tried, and convicted of a crime based on a misidentification like the one that merely got Blake thrown to the ground.  Misidentifications are a problem not just in arrests, but also in highly suggestive police show-up procedures, as well as in line-ups, photo-arrays, and most significantly at jury trials. 

When it comes to eyewitness identifications, race matters.  Fortunately for James Blake, the consequences of the cop’s misidentification were relatively short-lived, and didn’t include years or even decades of wrongful imprisonment.


  1. This is an interesting issue and one that is very frustrating for criminal defense attorneys like myself. The Wisconsin Supreme Court has written that eyewitness testimony is often hopelessly unreliable and that misidentification is the single greatest source of wrongful convictions in the United States. Nevertheless, in my experience it is very difficult (practically impossible) to get a lineup identification suppressed because the standard is so non-specific. That standard is whether the lineup was "impermissibly suggestive," and prosecutors often argue that all lineups are necessarily somewhat suggestive, and judges use that reasoning to find that the lineup was not impermissibly suggestive.

    Thankfully there are people like Larry White out there who have started to bring the issue of misidentifications to the forefront.

  2. The case of McMorris v State is an excellent primer on the fallacy of eye witness testimony,and there is no valid reason why an expert can't testify about a particular identification in a specific case .