People v. Otis Boone


AD2 order dated June 24, 2015, affirming the judgment of conviction as modified. Decision below: 129 AD3d 1099, 11 NYS3d 687. Rivera, J., granted leave December 22, 2015.
ISSUE PRESENTED: The court’s denial of the defense request to charge on cross-racial identification. (Assigned counsel: Leila Hull & Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)

Issue Presented: Whether a defendant in an identification case, where the defendant and identifying witness appear to be of different races, is entitled to a charge on the potential cross-racial effect on that identification.


Holding: Yes, when requested, unless the trial court determines that the identification of the perpetrator is not in dispute. When applicable, the court is required to charge: (1) that the jury should consider whether there is a difference in race between the defendant and the identifying witness; and (2) if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race then their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.


CAL Observes: This was a 5-judge majority opinion written by Judge Fahey, with a concurrence by Judge Garcia joined by Judge Stein, with Judge Wilson not participating.


In these two consolidated single eyewitness cases where there was a white victim and a black perpetrator, the Court of Appeals rejected the reasoning of the court below that the defense must call an expert witness or cross-examine the eyewitness about the cross-racial effect in order to get a charge on this factor. Recognizing that mistaken identification is the single greatest cause of wrongful convictions in this country, the Court cited to recent scientific studies (and case law) on the effect of cross-racial identification in particular in increasing the unreliability of identifications, despite juror belief otherwise, and despite the certainty of the witness’s identification. 


Because of these recent research developments, the Court distinguished this factor from the general expanded identification charge at issue in People v. Whalen, 59 N.Y.2d 273 (1983). In Whalen,  the Court held such an expanded charge, while recommended, was discretionary. The concurrence objected that, as with Whalen, whether to charge the cross-racial effect should also be a matter of discretion for the trial court. But the majority disagreed, and a cross-racial charge is now required when requested except where a trial court finds, as a matter of law, that identification is not at issue. 


Boone may hopefully signal a shift in the Court’s willingness to look at other identification factors that have been recognized within the scientific community, such as the lack of correlation between a witness’ confidence and the accuracy of his or her identification, and the potential effect of post-event information on eyewitness testimony, as discuss ed in People v. LeGrand, 8 N.Y.3d 449 (2007).