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Court of Appeals Building, Albany, NY.Court of Appeals Building, Albany, NY. (Rick Kopstein)

Scientific research has established the existence of the “cross-race effect”—that people have greater difficulty accurately identifying those of racial backgrounds different from their own. The recent National Academy of Sciences report on eyewitness identification characterized the research supporting the cross-race effect as “generally accepted” in the scientific community. Among the Innocence Project’s 349 DNA exonerations, at least 42 percent of those involving mistaken eyewitnesses involved an eyewitness mistakenly identifying an innocent person of a different race—most commonly a white eyewitness mistakenly identifying a person of color. In a criminal justice system in which people of color are disproportionately represented, an instruction informing jurors of this increased risk of misidentification in all cases is essential. Indeed, in recent years, the highest courts of New Jersey and Massachusetts have mandated cross-race jury instructions. New York, like some other states, currently allows a cross-race jury instruction in the trial court’s discretion.

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