New York state judges will be required, if asked, to instruct juries that witness identifications of suspects who are a different race than the identifying witness may be less reliable, the state's highest court ruled late last week.

The state Court of Appeals on Thursday issued an uncorrected opinion, People v. Boone, No. 55, stating that during final instructions a trial court is required to give—upon request—a jury charge on cross-race effect. The jury would be instructed to consider whether there is a racial difference between the defendant and the witness who identified the defendant. If so, the jury should consider that people “have a greater difficulty accurately identifying members of a different race than in accurately identifying members of their own race,” the opinion states.

The jury should also consider whether the difference in race affected the accuracy of the witness's identification, Associate Judge Eugene Fahey wrote in the majority opinion.

“In light of the near consensus among cognitive and social psychologists that people have significantly greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race, the risk of wrongful convictions involving cross-racial identifications demands a new approach,” Fahey said in the decision dated Dec. 14.

“We hold that when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, upon request, a party is entitled to a charge on cross-racial identification,” he wrote.

The decision stems from a pair of 2011 robberies in Brooklyn in which cellphones were stolen from white men. The first witness described the robber as a short-haired black man, about 6 feet fall, weighing about 170 pounds, wearing a baseball hat and a hooded sweatshirt. Ten days later, a white teenager was walking in the same neighborhood in Brooklyn when a black man attempted to steal his phone. Unlike the previous robbery, in which the victim chased the assailant only to stop after the man pulled out a knife, the teenager did not immediately let go of his phone and the robber stabbed him. The teenager described the perpetrator as African-American, about 18 years old and roughly 6 feet, 2 inches tall.

The defendant, Otis Boone, a black man who was of similar stature as that described by the two white men, was suspected of the crime and placed in two six-person lineups. Both victims separately identified him as the perpetrator, although the teenager was initially unsure, but identified Boone after he spoke. Neither cellphone was recovered, and no physical evidence linked defendant to the crimes, according to the opinion.

Boone claimed there was no corroborating evidence linking him to the robberies, but he was found guilty at a jury trial in 2012 and sentenced to 25 years in prison. During the charge conference, defense counsel had requested that the jury be instructed on cross-racial identification but the Supreme Court denied the request, on the basis that there had been no expert testimony or cross-examination concerning “a lack of reliability of crossracial identification,” the opinion states. On appeal, the Appellate Division, Second Department, affirmed the verdict in 2015, but reduced his sentence to 15 years after it found that the initial sentence was excessive. The Appellate Division also ruled, however, that the Supreme Court had not erred in declining to instruct the jury on cross-racial identification (129 A.D.3d 1099 (2d Dept 2015)).

In the decision, Fahey wrote, ”As to each crime of which he was convicted, defendant, who is black, was found guilty entirely on the basis of the testimony of a single white witness identifying defendant as the person who had robbed him. Nevertheless, [the] Supreme Court refused to give the requested charge instructing the jury on the relative inaccuracy of cross-racial identifications. One of [the] Supreme Court's reasons for refusing to give the charge was that such an instruction should not be given if there has been no expert testimony on the subject. We reject this rationale and hold that [the] Supreme Court erred in relying on it. For this reason and because the error was not harmless, we reverse.”

The Court of Appeals majority opinion also stated, “expert testimony is not necessary to establish the right to the charge. ”

The Court of Appeals reversed the Appellate Division's ruling and ordered a new trial for Boone.

Chief Judge Janet DiFiore, Associate Judges Jenny Rivera, Paul Feinman and Guest Judge Peter Tom, an associate justice of the Appellate Division, First Department, concurred with the majority opinion.

Associate Judge Michael Garcia concurred in the result. But he wrote separately, saying the majority opinion “
advances a new rule that purports to 'require[]' a cross-racial identification charge upon request, while vaguely suggesting that the trial court retains some undefined discretion to deny the charge where, for instance, identification is not 'at issue' (majority op at 16-17). This illusion of discretion does a disservice to trial judges, who are tasked with implementing the majority's apparently mandatory rule while facing the harsh remedy of automatic error.”

Garcia agreed that the trial court “abused its discretion” in denying Boone's request for a cross-racial identification charge, but said he wrote separately because he wanted to “reaffirm” that the decision to deliver a cross-racial charge is at the trial court's discretion.

“Not only is this approach unprecedented—we do not mandate any other charge relating to identification evidence—it inhibits our trial courts in a manner that may frustrate jury deliberations,” Garcia wrote in his opinion, with which Associate Judge Leslie Stein concurred.

The rule by the majority, Garcia argues, “provides conflicting signals” to New York's trial courts because it fails to define the discretion the trial courts should use.

“That confusion benefits no one,” Garcia wrote.

Paul “Skip” Laisure, who heads Appellate Advocates and represented Boone, did not immediately respond to requests for comment. The Brooklyn District Attorney's Office said it “will review the decision and evaluate our options.”