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For the first time in New York since the Court of Appeals opened courtroom doors to identification experts, a judge has said a jury can hear testimony that suggests eyewitnesses are particularly unreliable when identifying perpetrators of a different ethnicity. The written ruling, issued last week by Acting Bronx Supreme Court Justice Dominic R. Massaro, came in a shooting incident where the victim, Jose Cruz, a Hispanic cab driver, was the only witness against the defendant, Troy Radcliffe, who is black. Massaro rejected arguments from prosecutors that scientific experts had not reached generally accepted theories on the accuracy of “cross-racial” identifications. He said that several court opinions and numerous studies reveal that such identifications are less accurate than same-race identifications. “It has become one of the most researched issues in eyewitness identification today,” Justice Massaro wrote in People v. Radcliffe, 3714/01. “Inexorably, the studies are conclusive that human perception is inexact and that human memory is fallible; where cross racial-identification is involved, this is especially so.” In an odd twist, though, the judge’s ruling on cross-racial identifications had no impact on the case before him, since the defendant’s attorney declined to call the expert during a trial in February. The attorney, David Feige of The Bronx Defenders, and Radcliffe also waived Radcliffe’s right to a jury trial in favor of a bench trial, during which numerous facts were agreed upon by both the prosecution and the defense. Justice Massaro convicted Radcliffe of assault in the second degree and criminal possession of a weapon in the second degree, relying solely on Cruz’s cross-racial identification. The only physical evidence retrieved from the cab — fingerprints — did not match Radcliffe’s. The judge’s written ruling, issued after conviction, expands on his reasons for agreeing to allow testimony on cross-racial identifications. The judge said that although courts can give jurors a separate instruction when a criminal case relies on one witness, the question of cross-racial identification is not covered by the instruction and could require expert testimony if certain circumstances are met. Radcliffe’s attorney had sought to submit expert testimony on several other areas of eyewitness identifications, such as the lack of correlation between witness confidence and accuracy, and the way one identification procedure can reinforce a witness’ thinking during a subsequent procedure. The judge did not allow testimony on any other aspect, and did not address those requests in his written opinion. THREE FACTORS For courts to allow testimony on cross-racial identifications, the judge said three factors are required: the identification of the defendant is the principal issue; there is only one eyewitness; and the identification is cross-racial. Justice Massaro said his reasoning would suffice for courts until “the law of New York settles on the parameters of expert identification testimony or advances an expanded pattern jury instruction in the arena of cross-racial identification.” Feige said the ruling was a tremendous victory in terms of precedent, but he said the outcome of the case has made him despondent about a client he believes is innocent. The Bronx district attorney’s office, on the other hand, says it is pleased to have won a conviction based on a man they feel is a strong witness, but now faces the prospect of other defense attorneys confronting them with the logic of Massaro’s opinion, which, as an evidentiary ruling, cannot be appealed. “If I were not so devastated by the ultimate result in the case, I would be hailing this as a fantastic victory,” Feige said. “This is one of those that drives you out of the profession, that keeps you from sleeping at night.” Feige said he has filed a motion to set aside the verdict that includes testimony from two other witnesses at the scene of the crime, which took place near Yankee Stadium in summer 2001. Robert L. Dreher, counsel to the Bronx district attorney’s trial division, said his office is confident in the verdict and the reliability of Cruz as a witness. As for Massaro’s verdict on cross-racial identifications, Dreher suggested that the judge’s ruling was rushed, as it came shortly after the case was transferred from another judge who had handled it for more than a year. “It doesn’t do justice to a topic that is still very much up in the air,” he said. Dreher said the Bronx district attorney’s office will continue to take the position that expert testimony on eyewitnesses is “a form of pseudo-science that is totally illegitimate.” He questioned further the relevance of cross-racial identification testimony in a case that involves an experienced cab driver who has driven in every borough in the city and come across people of all ethnicities. “I could see a defense attorney taking this opinion and saying, ‘Hey, look at this,’ ” Dreher said. “ It really creates an annoyance.” COURT OF APPEALS RULING Since the Court of Appeals ruled in People v. Lee, 96 NY2d 157, that expert testimony on the reliability of eyewitness identifications can be admitted at the discretion of trial courts, New York judges have issued conflicting rulings on the topic. In the lengthiest opinion on the subject — and the one most favored by prosecutors — Manhattan Acting Supreme Court Justice Bernard J. Fried held last September that eyewitness experts were unfit for the courtroom because their field was rife with contrasting conclusions and contradictory studies. Fried made his ruling in People v. Legrand after holding a full hearing under Frye v. United States, 293 Fed 1013, a 1923 D.C. Circuit opinion under which New York courts determine if scientific testimony is generally accepted in its field. But other judges have allowed eyewitness experts to testify without holding Frye hearings, such as Manhattan Supreme Court Justice James A. Yates. Justice Massaro took over Radcliffe’s case after Acting Supreme Court Justice William C. Donnino was transferred to Queens in January. Last April, Donnino made an initial ruling in the case, finding that criminal defendants could call eyewitness experts if they could prove the testimony would be beyond the knowledge of a typical juror and not covered by standard jury instructions. In making his ruling, Massaro considered a transcript from another Frye hearing on the topic that was submitted to the court. The hearing was conducted in late 2001 by Acting Bronx Supreme Court Justice Efrain Alvarado, who has yet to rule in the case. To Feige, the circumstances surrounding Radcliffe’s arrest call for special sensitivity to the dangers of eyewitness identification. The arrest began with a witness at the scene of the shooting near Yankee Stadium. The man, who had been drinking for a few hours at the time of the shooting, said he saw the assailant leaving the scene. He went to a police station and viewed photos, picking out one that looked like the assailant, though he said he could not be sure, according to a court transcript. A detective gave that photo — which was not of Radcliffe — to a sketch artist, who drew a wanted poster. An officer then brought that poster to the hospital where Cruz was being treated. Cruz said the poster looked like his attacker. The officer testified that the poster read “wanted” when it was shown to Cruz. Radcliffe, who lives in the neighborhood of the crime, was stopped and questioned a few days later by an officer looking for the suspect in the poster. Officers later ran Radcliffe’s information through department computers. They retrieved a photo of him from prior arrests and placed it in an array. At the hospital, Cruz picked Radcliffe out of the array and later identified him at a live lineup. Cruz identified him again before Justice Massaro. Though investigators lifted several usable fingerprints from the rear door of the cab and from the inside, those prints did not match Radcliffe’s and were not compared to all of the prints on file, according to the transcript. Massaro has scheduled a hearing in May for Radcliffe’s sentencing and a ruling on Feige’s motion to vacate the guilty verdict. Radcliffe faces between 5 and 15 years in prison.

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