John P. Rutledge
excerpted from: John P. Rutledge, They All Look Alike:
the Inaccuracy of Cross-racial Identifications , 28 American Journal of
Criminal Law 207-228, 211-214 (Spring 2001)(173 Footnotes Omitted)
In general, there is a much greater possibility of error where the
races are different than where they are the same . . . .
A cross-racial ID occurs when an eyewitness of one race is asked to
identify a particular individual of another race. The last
half-century's empirical study of cross-racial IDs has shown that
eyewitnesses have difficulty identifying members of another race, though
the degree to which this difficulty affects the accuracy of an
eyewitness ID is not certain. Likewise, it is unclear whether all races
Known as the "own-race" effect or "own-race"
bias, eyewitnesses experience the "cross-racial impairment"
when attempting to identify individuals of another race. The
"own-race effect" is "strongest when white witnesses
attempt to recognize black subjects," and apparently less
influential to black witnesses. In fact, four separate studies found
that black eyewitnesses do not experience any cross- racial impairment.
And another found that blacks make better witnesses in general. But five
other studies found that white eyewitnesses simply experience the
impairment more often than blacks. Regardless of the degree to which
each race suffers from the impairment, a leading scholar on the subject
has concluded that "it has been observed so many times" that
"it seems to be a fact."
Concern about the frequent inaccuracy of cross-racial IDs is
extensively documented in case law and social science data. And some
judges believe the cross-racial nature of an identification may affect
accuracy in the same way as proximity to the perpetrator and poor
lighting conditions. As one federal judge expressed more than a decade
We are painfully aware of miscarriages of justice caused by wrongful
identification. Those experienced in criminal trial work or familiar
with the administration of justice understand that one of the great
problems of proof is posed by eyewitness identification, especially in
cross-racial identification . . . .
Likewise, a prominent state supreme court judge discussed the
complexity of the phenomena as follows:
[I]t is well documented that cross-racial identification is less
reliable than identification of one person by another of the same race.
Considerable evidence indicates that people are poorer at identifying
members of another race than of their own.
Adding the commonly held belief that blacks are treated disparately
in the criminal justice system, it is easy to see that the problem is
complex and not easily allocated for or rectified.
And yet, this wealth of social science data and abundance of case law
has yet to inspire legal scholars to address the issue directly. In
fact, I was unable to locate a single law review article that deals
exclusively with the topic of cross-racial IDs. Hence, this article: my
contribution to the dialogue. It should be noted that the article is not
meant to be exhaustive. Rather, it is written as an overview written
with the express intent to inspire contributions from the scholastic
legal community. The problem is not going to disappear. It must be dealt
with, as the very integrity of our criminal justice system depends upon
I first became interested in the subject matter while working as a
student clinician in law school. The issue seemed to arise in many of
the clinic's cases. Granted, my universe of experience was a bit
atypical. I was one of a handful of white students in my entering class
at Howard University School of Law. And most of our clinic's clients
were black. The high concentration of white victim/black perpetrator
cases caused me to consider many issues, some societal and some
interpersonal. One of these issues was the apparent inaccurate
identification of several of our clients.
As a white graduate of a historically black law school, I bring a
unique perspective to the discussion of cross-racial IDs. I believe my
experiences add a valuable insight to the central question at hand: Why
do white people have so much trouble correctly identifying a black
Several months of research and reflection on little else but this
topic has led me to a few conclusions. These conclusions are my own and
are not based upon, or necessarily supported by, empirical data.
By nature, people are generally homogenous. We tend to prefer those
we are familiar with, those with whom we identify. White people tend to
prefer other whites, as rich people tend to prefer the company of others
with money. These groups are not alone in that respect: black people
generally feel most comfortable around other blacks and poor people
around other poor people. There's a pre-established comfort level--a set
of customs and mores already in place. The comfort level allows one to
relax and live less deliberately.
Those of different races may have different customs and mores,
different ideas of permissible speech, behavior, diet, and dress. The
hair texture and styles of the various races is often different, as is
facial and body structure. In light of these considerations, I believe
the major cause of the cross-racial impairment is the lack of
familiarity with those of other races. We often work together, and at
times eat together, but seldom do we live in the same neighborhoods or
attend the same churches. These latter activities reflect, in my mind,
our lack of comfort among those of other races. Sadly, it is a
self-fulfilling cycle: comfort keeps us apart, and yet, living amongst
each other would establish a comfort level. With this paradox as our
communal mindset, familiarity is a difficult thing to achieve. How can
one be expected to accurately identify a member of a group with whom
they are so utterly unfamiliar?
One of my colleagues has attacked my viewpoint as simplistic. He
refuses to believe that familiarity with those of other races might
alleviate the inaccuracy of cross-racial IDs. As support for his
contention, he cites various authorities that conclude, "counterintuitively,
the ability to perceive the physical characteristics of a person from
another racial group apparently does not improve significantly upon
increased contract with other members of that race . . . ."
Ironically, I believe these findings strengthen my rationale as
expressed in the analysis above. Time spent in the same general location
is not the same as time spent together. Just as talking to someone is
not necessarily communicating with that person. I believe the entire
basis of these findings is flawed. Those orchestrating the studies
confuse commonality with comfort. Like two New Yorkers passing on the
street, many of us have never been intimate with someone of another
race. And without intimacy, we have no reason to feel comfortable. Nor
do we have the right to expect an accurate eyewitness ID.
In my three years at Howard, I learned so many things that I didn't
know I didn't know. I learned about locks and cornrows, braids and
fades. I learned the difference between high yella and red-boned and
brown-skinned and dark- skinned. My life experience does not allow me to
accept the finding that these discoveries do not make me more likely to
correctly identify a black assailant than a white person without a
In that respect, I believe cross-racial IDs will become less of a
problem as America matures and we get closer to Martin Luther King Jr.'s
dream. At this time, however, the unreliability of cross-racial IDs is
particularly troublesome. One in three black males between the ages of
twenty and twenty-nine is under judicial supervision in this country.
And while only five percent of the U.S. population, black males make up
more than half of America's prisoners. We must explore the various
measures available to help ameliorate the harm caused by inaccurate
cross-racial IDs. Innocent people have been, and continue to be,
stripped of their liberty simply because "they all look
. Associate, Donahue, Gallagher, Woods & Wood, L.L.P.; L.L.M.,
Real Property Development, University of Miami School of Law; J.D.,
Howard University School of Law (cum laude); B.A., Philosophy, Loyola
Marymount University. This article is dedicated to all those falsely
imprisoned due to an inaccurate eyewitness identification. Our
collective soul is marred by your injustice. And no subsequent remedy
can repay you for the pain you've suffered or the life you've lost.
However, let us begin with an apology and an oath to never again permit