Massachusetts High Court to Inform Jurors about Risk of Cross-Racial Misidentifications


The Massachusetts criminal justice system made a significant step toward preventing wrongful convictions last week. The state’s Supreme Judicial Court announced that, unless decided otherwise by the prosecution and the defense, judges will instruct jurors on criminal cases that people can have difficulty accurately identifying individuals of races different from their own, writes the

Boston Globe

. The court also authorized judges to include a cross-ethnic eyewitness identification instruction in appropriate circumstances. The purpose of the instructions is to help jurors to evaluate the accuracy of eyewitness identifications.

This decision is a major victory for the Innocence Project, which filed a friend of the court brief in the case of

Commonwealth vs. Elvin Bastaldo

earlier this year, urging the court to establish this rule.  The case provided an opportunity for the court to consider when and how trial judges should instruct jurors about the dangers of cross-racial and/or cross-ethnic eyewitness misidentification. The case also revealed the challenges in determining whether the witness and defendant are of a different race or ethnicity. Both the victim—who made an in-court identification at trial—and Mr. Bastaldo are Hispanic. Mr. Bastaldo is a dark-skinned Hispanic of Dominican descent while the victim is light skinned and of Puerto Rican and Italian descent. 

With respect to the cross-ethnic instruction, the court explained: “Where the persons involved in the identification self-identify as being of the same race but different ethnicity, and look as categorically different as people of different races, a cross-ethnic instruction will generally be appropriate, because the research suggests that cross-ethnic facial recognition in these circumstances has reliability issues similar to the CRE.”

Read more about the new court rules



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