OPTIONAL: Discussion of Rule 801(d)(1)(C) from: THE DISPARATE IMPACT OF THE MARYLAND RULES ON BLACK AND BROWN INDIVIDUALS

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Rule 5-802.1 Hearsay Exceptions – Prior Statements by Witnesses

Under Rule 5-802.1(c), “a statement that is one of identification of a person made after perceiving the person” is not excluded by the hearsay rule.310

The Problems

Cross-racial identifications demonstrate how this rule is problematic. Cross-racial identifications are frequently inaccurate because of own-race bias, the proven difficulty of identifying facial characteristics in other races:

[S]cientists agree that people are far better at recognizing members of their own race than they are at recognizing members of another race and that this own-race bias causes mistaken identifications. In fact, according to studies, a Black innocent suspect has a 56 [percent] greater chance of being misidentified as the perpetrator by a White eyewitness than a Black eyewitness, even without suggestiveness.311

This is the likely reason that 42 percent of wrongful convictions that result from misidentifications are cross-racial.312 Most significantly, “of the mistaken identifications reported by the Innocence Project, the largest percentage, forty-four percent, came from [w]hite eyewitnesses erroneously naming Black defendants as the perpetrator.”313

The own-race phenomenon prescribes that there is a significant difference “in the ability of white American subjects to recognize white and [B]lack faces. The impairment in ability to recognize [B]lack faces is substantial.”314 Further, every time a memory is recalled it becomes vulnerable to change.315 Confirming feedback—such as a detective telling a witness she ‘did great’— distorts memories, making them feel more accurate with each recollection.316

The hearsay rule exists to ensure that only trustworthy out-of-court statements are presented to the jury, but the per se rule classifying prior identification testimony as non-hearsay disregards the inherent unreliability that surrounds many types of identification testimony. As demonstrated by the aforementioned race-based identification biases and statistics, the nonhearsay classification serves white individuals, and disadvantages Black individuals who are more likely to be wrongly or improperly identified as perpetrators of crime than white individuals.

Recommendations

Many recommend the use of expert testimony regarding the special nature of cross-racial identifications to rectify this issue.317 We do not agree with this approach; criminal defendants generally struggle to afford expert testimony to support their cases318 and we do not encourage saddling defendants with additional bars to equality and equity in court. Further, survey participants recount that judges typically do not allow them to ask or argue cross-racial identification science.319 One specified that they have “had a judge refuse to allow a cross racial ID instruction even though there is a model ABA instruction because there isn’t a model Maryland instruction.”320 Thus, we recommend, when requested by the defendant, conducting a pre-trial admissibility hearing on any contested cross-racial identifications. At minimum, if requested by the defendant, the court should provide a jury instruction on the unreliability of cross-racial identifications.

Footnotes:

• 310 MD. R. EVID. 5-802.1.
• 311 Radha Natarajan, Racialized Memory and Reliability: Due Process Applied to Cross-Racial Eyewitness Identifications, 78 N.Y.U. L. REV. 1821, 1821 (2003).
• 312 Cross-racial Witness Misidentification, MONTANA INNOCENCE PROJECT, https://mtinnocenceproject.org/cross-racial-witnessmisidentification/#:~:text=Cross%2Dracial%20identifications%20are%20frequently,misidentific ations%20are%20cross%2Dracial%20misidentifications.
• 313 Natarajan, supra note 311, at 1832 n.10.
• 314 Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 CORNELL L. REV. 935, 938–39 (1984).
• 315 Sydney MacLeod, Michael G. Reynolds & Hugo Lehmann, The Mitigating Effect of Repeated Memory Reactivations of Forgetting, 9 NPJ SCIENCE OF LEARNING 1, 1 (2018).
• 316 Laura Smalarz & Gary L. Wells, Confirming Feedback Following a Mistaken Identification Impairs Memory for the Culprit, 38 L. AND HUMAN BEHAVIOR 283, 287 (2014).
• 317 Natarajan, supra note 311, at 1832.
• 318 MD. R. EVID. 5-702.
• 319 See App. at 11.
• 320 Id. at 223.