New York v. Boone

Brief Filed: 3/17
Court: State of New York Court of Appeals 
Year of Decision: 2017

Read full-text amicus briefopens in new window (PDF, 320KB)

Where the state introduces eyewitness-identification evidence and the witness is of a different race from the defendant, the court must give a jury instruction informing jurors that, as a matter of scientific consensus, cross-race witness identifications are less reliable than same-race identifications.

Eyewitness Identification

Otis Boone, a black man, was convicted of two robberies; the identification evidence as to each was solely the testimony of the two victims, both of whom were white. The trial judge denied the defense’s request for a jury instruction that “some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race.” Boone was sentenced to 25 years, which was reduced by the intermediate appellate court to 15 years.

APA’s brief explains that the limitations of eyewitness identification in general, and the relative unreliability of cross-race identification in particular, have been the subject of significant psychological research. APA also explains why the failure to give jury instruction on cross-race identification creates a substantial risk of wrongful conviction. Finally, APA’s brief concludes with a discussion of why the trial judge’s failure to give the cross-race instruction was not harmless.

On Dec. 14, 2017, the Court of Appeals of the State of New York reversed the order of the Appellate Division and ordered a new trial. In the decision, the Court cited APA’s brief holding 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.”

On March 1, 2019, Otis Boone was acquitted on retrial in proceedings that included psychological evidence as to the reliability of cross-racial identification and an instruction to the jury as to the weight to be accorded to cross-racial identification.