No Error in Refusal To Instruct Jury on Cross Racial Identification

State v. Thomas, Minn.Ct.App., 1/17/2017.  A white male identified Mr. Thomas, a black male unknown to the white male, as the person who held him up at gunpoint.  At trial Mr. Thomas requested an instruction on cross racial identification, the wording of which isn't pertinent to the opinion.  The defense cited to some opinions from other states, and to some of the scientific literature that has studied the reliability of such identifications, but there was no expert testimony offered in support of the request.  The trial court declined the request and the court of appeals upholds that decision.

The court of appeals said that it was up to the supreme court to modify the standard jury instruction on identification testimony. That would have been enough to affirm the trial court's decision, but the court decided to dig up some really old cases - well before decades of research on the perils of eye witness identification - to reaffirm the antiquated notion that such things as cross examination, proper jury instructions, the burden of proof, jury unanimity are all more than adequate to safeguard against a conviction based on a false eye witness identification.

There are a couple of things that the court of appeals did not mention. Just a few years ago the supreme court rejected a challenge to the refusal of the trial court to admit the very kind of expert testimony that was absent for Mr. Thomas.  State v. Mosley. Second, according to the National Innocence Project, eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing.  Read about that here.