Six months ago we wrote about the SJC’s recent cases grappling with the fallibility of eyewitness evidence in criminal cases, and the provisional jury instructions the Court had drafted on this topic. Two weeks ago, the SJC again tackled the issue of eyewitness identification in Commonwealth v. Bastaldo, and revised the provisional model instructions with respect to cross-racial identifications.
In Bastaldo, the defendant was accused of assaulting the bouncer at a nightclub. The defendant identified himself as a “dark-skinned Hispanic of Dominican descent,” and the SJC determined that he had “black” skin. He was identified in court by three witnesses: two self-identified as Caucasian, and one – the victim – was of Puerto Rican and Italian descent and self-identified as Hispanic. The SJC determined that this last witness had “brown” skin. The defendant requested an instruction on cross-racial and cross-ethnic eyewitness identification. The Commonwealth opposed the motion, arguing that at most the evidence suggested the witnesses may have had different ethnic backgrounds than the defendant, and that if any instruction were given it should not apply to the victim because he, like the defendant, was Hispanic. The trial judge declined to give a cross-racial or cross-ethnic identification instruction.
The provisional model jury instructions set forth in Commonwealth v. Gomes stated that “if witness and offender are of different races” the court should instruct the jurors that “research has shown that people of all races may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race.” Because Bastaldo’s case was tried before the Gomes opinion was released, the Court determined that no cross-racial identification instruction had been required, and the trial judge had not erred in denying Bastaldo’s request for one. The Court, however, went on to modify the provisional model jury instructions set forth in Gomes to “direct that a cross-racial instruction be given unless all parties agree that there was no cross-racial identification.”
In coming to this decision the Court went through an interesting exploration of how to determine race, and what racial factors are relevant to eyewitness identifications. Before Gomes, the SJC had stated that the judge could give a cross-racial instruction “when warranted by the evidence”; the provisional instruction in Gomes modified this rule to require such an instruction when warranted by the evidence. But as the SJC explained in Bastaldo, it had never made clear what evidence would warrant such an instruction. As the SJC noted, the social science research on this topic does not define race, and race as a concept is not subject to easy definition. As was clear in the Bastaldo case itself, people of mixed racial or ethnic backgrounds may self-identify in different ways, and other people (in Bastaldo, for example, the Commonwealth and the defense) may ascribe different races to the same people. The SJC determined that based on the social science research in this area, in the context of eyewitness identification the salient feature for determining race is the facial appearance. Because, as the Court determined, the “differences in race based on facial appearance lie in the eye of the beholder” it made cross-racial instructions the default unless all parties agree that there is no cross-racial issue in the case. Interestingly, the Court goes on to say that if the jury receives the instruction but does not believe there to be a cross-racial issue, it can ignore the instruction, even if the witness, whose determination of the defendant’s race is the one that supposedly governs, coded the defendant as a different race than him or herself.
The Court next considered whether a cross-ethnic instruction is necessary in all cases where a cross-racial instruction is given. It determined that, because there is no scientific consensus yet on cross-ethnic identification, such an instruction is not required but is left to the discretion of the judge. The Court did say that “[w]here 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.” The Court failed to explain what it means to “look as categorically different as people of different races,” or which person involved in the trial is expected to make that determination. It further said that, for example, where a non-Hispanic witness identifies a Hispanic defendant who looks multiracial, a cross-ethnic instruction is necessary because the jury may not know whether to attribute the difference in appearance to race or ethnicity or both. It is unclear why, in this hypothetical circumstance, if the defendant looks multiracial there would be any question that a cross-racial instruction would apply. Although the determination of when a cross-ethnic instruction is required is left to the discretion of the judge, declining the request for such an instruction may constitute abuse of discretion in the above-mentioned cases or under undefined “comparable circumstances.”
The SJC has now been grappling with how to incorporate scientific evidence about eyewitness testimony into criminal cases for a number of years. The provisional model jury instructions recognized the importance of cross-racial instructions in ensuring that juries assess the evidence in front of them fully aware of how race affects the accuracy of witness identifications. In Bastaldo the Court tried to avoid the can of worms that will be opened by attempting to instruct judges and juries on how to parse racial difference between witnesses and defendants by creating a default rule of always instructing the jury on cross-racial identification. Simultaneously, however, it waded into the fray on the newer frontier in social science research on cross-ethnic identification. By stating that there are some cases in which such an instruction is required, yet giving no concrete guidelines on how a judge or jury is to determine the ethnicities of the various parties involved in an identification, the Court is ensuring that litigation around assigning ethnicities to parties in criminal cases will ensue as defendants argue that they are entitled to such instructions. Given the difficulty the Court noted in defining race, deciding how to assign race to participants in a case, or determining whose perception of a witness or defendant’s race should prevail in a case, it will be interesting to see how the Court handles future arguments about the likely more complicated task of determining ethnicity based on witnesses’ and defendants’ physical appearances.
 Because the SJC used the term “Hispanic” rather than “Latino” in its opinion, we use it in this post.