Kristin Brown

Kristin Brown graduated magna cum laude in 2013 from Texas Wesleyan School of Law. The following year, Kristin obtained a Master of Laws in Trial Advocacy from Temple University Beasley School of Law in Philadelphia, PA and graduated from the Trial Lawyer’s College—an elite organization that accepts only those attorneys who serve the people, not the government. She has practiced solely criminal defense at the trial, appellate, and habeas levels since becoming licensed. She argues regularly in trial and appellate courts and is admitted in the federal bars in the Northern and Eastern Districts of Texas, the Fifth District Court of Appeals, and the United States Supreme Court. Her hobbies include traveling, reading, Pilates, wine, shopping for mid-century vintage items, and spending time with family and friends. Kristin offices in Dallas and can be reached at .

Ethics and the Law: Conflicting Interest in Criminal Cases

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As we all know, the privilege of being an attorney comes with a lot of responsibilities.

In the same way that doctors and nurses are more effective in treating their trauma patients if they, themselves, are not vicariously wounded, we as attorneys are most effective when we are able to retain a certain level of professional detachment from the trials and tribulations of our clients. We still serve their best interests, of course, and we may care a great deal about them and the outcome of their case(s), but we never actually become one of the, per se, adversaries in the legal conflict.

As part of this, society places certain demands on us. These aren’t just window dressing. Rather, the rules put in play by these societal demands are what have allowed our profession to survive and even thrive over a large portion of human history.

The interplay between societal expectations and an attorney’s professional independence and need for income can often leave the criminal defense attorney feeling they are subject to moving targets of conduct.

Criminal defense attorneys are often solo practitioners with small offices and small staff, but the standards we must uphold are just as high as any white‑collar attorney in the largest firm in the state.

The Texas Disciplinary Rules of Professional Conduct (“TDRPC”) puts those societal expectations into the rules governing attorneys licensed to practice in Texas. One of the tenets of these expectations is that we will be able to represent our clients zealously, free from any conflict of interest.

  1. You cannot represent opposing parties.
  2. You cannot agree to representation if the work
    • involves a substantially related matter where the new client’s interests are materially or directly adverse to another client or the firm; or
    • reasonably appear that it is or will become adversely limited by your responsibilities or interests
  3. Representation okay in (b) if no material affect to either client and each affected/ potentially affected client gives fully informed consent.

The general rule on conflicts is found in TDRPC 1.06. Part (a) is easy enough and self‑explanatory.But (b) starts looking like some of our statutes, so it may be more easily understood in reverse and using an example.

  1. My law partner represents Client A against Adversaries X, Y, and Z.
  2. X later comes to me and asks me to represent him in a new matter against/involving Client A, I must turn away X as a potential new client (“PNC”) if I conclude that the new matter is related, in some substantive way to the already existing matter where Client A is the existing client and PNC X is the adversary.

This is because the new matter with X would be substantially related to the preexisting matter with Client A and PNC X’s interests are already materially and directly adverse to the interests of another client (Client A). Restated—if a new matter, with a new client, would be directly and materially adverse to a current client of the firm (here Client A), is factually unrelated to any current or previous representation of A, there is no conflict of interest, and no waiver is needed. However, in typical fashion, the comments urge you not to take on such representation—even though the rules just said it’s okay. Rule 1.06, cmt 11.

It is also important to note that the above applies only in state court. In federal court, the Dresser doctrine applies, which requires consent from an existing client before the attorney/firm can take on any new matter adverse to the existing client—whether it is related or unrelated. (Following ABA Rule 1.7)

Since a conflict of interest can result in an attorney being required to withdraw from all representation, return funds, lose out on future funds, and face potential complaints, the best practice is simply to avoid conflicts from the beginning—but how?

  • Interview carefully
  • Know your clients
  • Client Acknowledgements
  • Secure additional counsel
  • Don’t forget the “former” clients
  • Document, document, document

Facts: In 2017, wife meets with lawyer A to discuss a potential suit for divorce. They have a 45‑minute consultation. Wife doesn’t hire Lawyer A and doesn’t take any further action to file for divorce. This summer, husband comes into see Lawyer B—who is Lawyer A’s long‑time partner. Husband wants to file for divorce. Lawyer A doesn’t remember anything about the consult and did not keep any documentation.

Question: Can Lawyer B represent Husband?

Answer: No. Tex. Comm. Prof. Ethics, Op. 691 (2021).

Explanation: Under TDRPC 1.06 (b)(2), the duty of confidentiality extends not just to current clients, but former clients and even prospective clients. Id. This duty may attach even without an attorney/client relationship. Id. Lawyer A owes Wife the duty of confidentiality, which limits his ability to represent Husband in a suit for divorce from Wife, against Wife’s wishes. Id.  Lawyer A’s disqualification is imputed to Lawyer B. Id.

Rule 1.06(b)(2) is not limited to conflicts between a prospective client and an existing one. Id. Rule 1.06(b)(2) forbids representations that reasonably appear to be “adversely limited by the lawyer’s or law firm’s responsibilities to . . . a third person.” Opinion 691, supra. A lawyer’s duty of confidentiality to a prospective client is the kind of “third‑person” responsibility that may result in a conflict under Rule 1.06(b)(2). Id.

The fact that the Lawyer A claims to be unable to remember all or some of the information disclosed by Wife is not determinative of whether a conflict exists under Rule 1.06(b)(2). Id.

In the opinion of the Committee, based on the limited facts presented, Lawyer A’s previous consultation with Wife creates a conflict of interest that would prevent Lawyer A from representing Husband in divorcing Wife. Given that Lawyer A’s consultation with Wife lasted 45 minutes and related to the same matter as the proposed representation of Husband, the Committee believed a reasonable lawyer would conclude that Wife likely shared confidential information during the consultation  that  could be significantly harmful if revealed or used against her in a divorce from Husband. Accordingly, the Committee concluded that Lawyer A’s duty of confidentiality to Wife reasonably appears to adversely limit his ability to represent Husband in divorcing Wife and that Rule 1.06(b)(2) therefore prohibits that representation.

Opinion  691,  supra. Rule 1.06(f) provides for the vicarious disqualification of Lawyer B: “If a lawyer would be prohibited by this Rule [1.06] from engaging in particular conduct, no other lawyer while a member or associated with that lawyer’s firm may engage in that conduct.” Id., TDRPC 1.06. Since Rule 1.06(b)(2) prohibits Lawyer A from representing Husband in divorcing Wife, Rule 1.06(f) automatically extends that limitation to Lawyer B and any other lawyer currently in Lawyer A’s firm. Opinion 691, supra.

The Committee noted that “[t]he firm‑wide imputation of conflicts arising from relatively brief prospective client interviews may in some cases lead to harsh results, but the language of Rule 1.06(f) currently allows for no exception.” Id., compare TDRPC 1.06(f) with ABA Model Rule 1.18 (limiting imputation of prohibition arising from consultation with prospective client, subject to certain conditions).  The Committee has proposed adding a new rule modeled on ABA Model Rule 1.18, but as of May 1, 2022, the proposed Texas Rule has not yet been adopted. See 83 Texas Bar Journal 618 (September 2020).

In the above scenario, it was assumed that Wife was unwilling to consent to Lawyer A’s or Lawyer B’s representation of Husband. However, it should be noted that a lawyer may be able to proceed with a representation generally prohibited under Rule 1.06(b)(2) with the effective consent of both the former prospective client and the proposed client. Opinion 691, supra. Effective consent under Rule 1.06(c) can only exist if: (1)“the lawyer reasonably believes the representation of each client will not be materially affected;” and (2) consent is given only after “the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any” is disclosed to all parties. TDRPC 1.06(c). It should also be noted that Wife may place limitations on its consent, such as an agreed screening arrangement whereby Lawyer A would be prohibited from participating in the representation or disclosing Wife’s confidences to any other person. Opinion 691, supra. Screening will not avoid a “former prospective client” conflict unless all parties consent to the arrangement, as required by 1.06(c). Id.

Former clients can be excellent sources of referrals, but they can also be the source of a conflict.

TDRPC 1.09 governs conflicts of interest with former clients.

  1. Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former
    1. in which such other person questions the validity of the lawyer’s services or work product for the former client;
    2. if the representation in reasonable probability will involve a violation of Rule 1.05; or
    3. if it is the same or a substantially related matter
  2. Except to the extent authorized by Rule 1.10 (Govt to private employment), when lawyers are or have become members of or associated with a firm, non of them shall knowingly represent a client if anyone of the practicing alone would be prohibited from doing so by paragraph (a)
  3. When the associated of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyers shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so by paragraph (a) (1) or if the representation in reasonable probability will involve a violation of Rule 1.05 (Confidentiality)The following situation was recently posed to the TCDLA Ethics Committee:

Facts: Court appointed Lawyer to represent Client A in a criminal matter. Case is set to go to trial. Client A has been detained at the local jail pending trial and has recently been accused of perpetrating sexual assaults against other inmates.

During an interview about the extraneous allegations, Client A tells Lawyer that he was the victim of sexual assaults at the jail, including by Mr. X, who is a former client of Lawyer’s.

Prosecutor wants to introduce extraneous sexual assault allegations in punishment. Mr. X is not the victim of the extraneous that the State intends to produce, but rather the perpetrator of another, separate incident. The State is not aware that Mr. X exists at this time, and Mr. X would not likely be called to testify against Client A, unless the State chose to call him to rebut Client A’s evidence of sexual assault in the jail.

Client A would use the evidence of being sexually assaulted in jail for mitigation purposes as well as to rebut the allegation of sexual assault on him (i.e., that he has been sexually assaulted several times in the past to bolster his argument that he was the victim rather than the perpetrator of the offense).

Lawyer has no continuing obligations or responsibilities to X other than Lawyer’s obligations to X arising from X’s status as a former client.

Question: Is there a conflict under TDRPC 1.09(a)(2)?

Answer: Quite likely, yes.

Explanation: Rule 1.09(a)(2) prohibits representation of A in a matter adverse to X if there is a reasonable probability that (continued) representation of A will involve a violation of TDRPC 1.05.

Here, it seemed likely that the accusation against X would come out in trial. If that happened, it was quite plausible to believe something Attorney had learned about X during his representation of X may now be beneficial to A but adverse to X. While it was possible that Attorney might have been able to bring on secondary counsel for the guilt/innocence phase, who could then take over fully on punishment, such a situation would still likely trigger an investigation should a grievance be filed.

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may continue to represent a client in a proceeding after learning that the conduct of the lawyer’s former client may be material to the proceeding if: (1) the matter is not adverse to the former client; or (2) the matter is adverse to the former client but the representation does not question the lawyer’s work for the former client, the representation does not involve a matter that is the same as or substantially related to the matter for which the lawyer represented the former client, and the representation will not in reasonable probability involve a violation of Rule 1.05 with respect to confidential information of the former client. TDRPC 1.06. Regardless of whether the representation of the current client is adverse to the former client, the lawyer may represent the current client in the matter only if the lawyer complies with obligations under Rule 1.05 not to reveal confidential information of the former client and not to use confidential information of the former client to the former client’s disadvantage unless the former client consents after consultation or the information has become generally known. See Tex. Comm. Prof. Ethics Ops. 584 (Sept. 2008); 579 (Nov. 2007); 578 (July 2007); 527 (April 1999); 615 (April 2012); 608 (Aug. 2011); 598 (July 2010); 574 (Sept. 2006); 538 (June 2001); 494 (Feb. 1994); 607 (July 2011); 691 (June 2021); 627 (April 2013); 637 (Aug. 2013); 645 (Sept. 2014); 650 (May 2015); and 659 (July 2016).

“In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from apparent conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interests.” TDRPC Preamble.

In preparing this Article and the presentation that it stemmed from, I found myself going back to Attorney’s situation with Clients X and A and what I learned from the discussion with others on the TCDLA Ethics Committee. Our goal isn’t to win the grievance, it’s to avoid it entirely. In terms of avoiding a conflict, bringing on secondary counsel to take over punishment completely did exactly that. Since the evidence would only come out at punishment, and Attorney would no longer be representing A at that point, conflict would be averted. But the best bet for avoiding a grievance was for Attorney to get out entirely before trial on guilt/innocence. The Bar wouldn’t know the details up front and would almost certainly upgrade to investigate. This means a lot of stress on Attorney, hours spent answering the grievance, and maybe hiring of counsel. That’s a loss of time, money, and well‑being. Why chance it?

Can the Ails of the Cross-Race Effect on Eyewitness Testimony Be Cured?

In 1984, a man broke into Jennifer Thomson’s home, where he raped her (“The Story of Ronald Cotton,” retrieved from http://www.innocenceproject.org/cases/ronald-cotton/). At trial, Thompson reported having made considerable effort to memorize her attacker’s face. Thompson was highly confident she would be able to recognize him again, given the opportunity. Thompson soon identified Ronald Cotton as her attacker from a photo lineup. Thompson later identified him again in a live lineup. She said she was 100% sure of her identification. Cotton spent ten years in prison before he was proven innocent through DNA evidence. When Thompson was later presented with the man whose DNA was a match to the DNA left at the scene, Thompson stated she had never seen him before. Thompson is white, Cotton black.

Some of the most damning evidence against a criminal defendant comes from an eyewitness to the event. Unfortunately, where the eyewitness is of a different race than the perpetrator, grave errors can occur in identification. The cross-race effect refers to the finding that humans encode, and thus remember, members of the same race better than members of other races. In fact, a same-race face is 2½ times more likely to be remembered and recognized by a white eyewitness than a cross-race one. This leads to disastrous consequences: Recent analyses show that eyewitness identification error accounts for nearly one-third of wrongful convictions. In terms of false identifications, the wrong suspect is more than 150% as likely to be chosen in a cross-race situation. When an innocent person is wrongly convicted, our whole system of justice suffers—and a guilty party remains free, perhaps permanently.

What Causes the Cross-Race Effect?

There are two basic classes of CRE theory: perceptual learning models and alternative social cognitive theories. Perceptual learning models suggest that lack of experience or contact with members of other races is what causes the CRE, and that through increased contact, we can fully eliminate the effect. However, according to recent meta-analysis, one’s level of quality experience with members of the target race does matter; but the relationship between experience and effect is weak. Further, it is not clear why experience matters. Two competing cognitive mechanisms have been proffered: first, that expertise allows the cross-race (CR) face to be processed in a configural manner, as same-race (SR) faces are. Without that experience, processing occurs in a feature-based manner or piecemeal fashion (Hugenberg et al., 2010).

The second mechanism advanced, the “face-space model,” offers that faces are represented in memory like a series of dots on a grid-board, and that SR faces are represented in a more spread-out fashion, allowing one at a time to be selectively chosen. CR faces, on the other hand, are grouped tightly together at the periphery, so that when an attempt is made at recall, more than one is brought into focus.

Social cognitive theories focus on how social categorization of same- and cross-race faces affects the process of encoding (Hourihan et al., 2013). The feature selection-model suggests that the CRE is due to our tendency to think categorically about CR or “out-group” members, whereas we individuate SR or “ingroup” members (Hugenberg et al., 2010). Individuation allows us to fully attend to the entire face. The cognitive disregard model holds that the CRE (and other in-group/out-group biases) occur because we simply disregard those who are not in our group (SR). Because we did not pay attention at encoding, we cannot later retrieve the proper image. The ingroup/outgroup model advanced by Sporer (2001b) suggests that we can be motivated to effective processing if the CR target is believed to be an “ingroup” member. Recent research, however, shows that the cause of the CRE is most likely a hybrid of all of these.

Hugenberg and colleagues (2010) advanced the Categorization-Individuation Model, arguing that social categorization, perceiver motivation, and perceiver experience in CR faces work collectively during encoding. Though it is believed that most of the time all three processes are at play, there may be situations where perceivers can be motivated to eliminate the CRE. Individuation occurs where a person discriminates within the individual samples in a given category—for instance, taking time to really look at a particular color in a set of crayons. Categorization, on the other hand is when you only look at the characteristics that make the crayon similar to all the other crayons in the box. Hugenberg and colleagues argue that generally we look at CR persons as just another crayon in the box, whereas with SR persons, we look at the individual crayon and what makes it different from the others. It is important to realize that social categorization occurs almost immediately upon contact. However, because individuation takes time, it requires additional motivation—motivation that is often not present for CR faces (Hugenberg et al., 2010).

Individuation, however, can be manipulated in some circumstances. A recent study shows that when a perceiver feels the distinctiveness of his group threatened, the CRE is lessened. The threat of losing group distinctiveness causes us to try to differentiate “us” from “them.” This is accomplished by perceiving both groups as “homogenous,” resulting in a reduced ability to recognize SR faces. The most recent studies show that while the CRE can be lessened with instruction, elimination may be impossible. Oddly, in the Pica et al. study, instructions to black participants improved both same- and cross-race sensitivity.

There are additional arguments that the CRE affects not only encoding, but retrieval as well. Witnesses have a more lenient response criteria for CR faces, meaning they are more likely to choose a CR face than a SR face when uncertain regarding identity—erring on the side of mistake, rather than caution. This equates to more false identifications, and potentially more wrongful convictions. Encoding processes and cross-race contact is an “estimator variable.” Estimator variables, unlike system variables, cannot be controlled by outside sources. An example of a system variable is the instruction set given to a person during a lineup procedure (Bornstein et al., 2013). In some instances, special instructions given prior to retrieval—for instance, at the lineup procedure—may lessen or eliminate the CRE. Bornstein’s replication of the Hugenberg (2007) study reiterated that informing persons prior to lineup of the cross-race effect might moderate the results, though not end in a reduction of the CRE. Rather, instruction made the participants more conservative, and this resulted in fewer false identifications. The lack of success in retrieval moderation of the CRE reiterates the fact that the effect occurs at encoding.

Raising Awareness—In Hopes of Preventing the CRE

It is important to ask what can be done? And, who should be targeted? It certainly is nonsensical to believe that we can provide the necessary experience with other-race faces and the motivation to individuate to an eyewitness. If we could reach the witness prior to the crime, many different methods could be used to intervene that could reduce or possibly eliminate the CRE (Wilson et al., 2013). However, we cannot train and “premotivate” the entire population, and we do not know the identity of a witness before a crime has occurred and been reported, at the earliest. Further, the effects of training are short-lived, so the witness training must be continuously maintained (Wilson & Hugenberg, 2010).

Pre-Encoding Influences

Categorization results in a failure to differentiate what makes a person unique from others. While training of the general public is simply not a viable option, training of police officers can be systematic and influential. Studies show that as a rule, police are no better eyewitnesses than the general public. This is true for both facial recognition and recall (except under conditions of prolonged exposure). Because police officers are often eyewitnesses—e.g., an officer is called to the scene where he comes into contact with the suspect—and we can expect that this will happen as part of their job, it is logical to train officers, providing a high-quality cross-racial experience and motivating them to individuate. It is important to note that the CRE does not occur due to racial prejudices; therefore, racial sensitivity training is not the training at issue here. Further, because the witness must personally be motivated to individuate, we must be sensitive to the reasons that police would want to individuate (so that the bad guy is punished and no innocent person is wrongfully convicted, costing precious agency and personal resources).

Can We Remedy the CRE?

Though we may be only able to train select populations in an effort to reduce the CRE in the pre-witness stage, there are a number of additional things that can be done to prevent decision errors or lessen the effect of the CRE in a criminal prosecution (Wilson et al., 2013).

Post-encoding Influences

Lineup Construction:

Police tend to be less careful in selecting similar fillers when creating CR lineups than when creating SR lineups. Though this may be attributable to experience and categorization, a simple remedy is to have an SR officer create an unbiased lineup filled with foils of proper similarity.

Lineup Instructions:

One of the key factors in reducing decision errors is the elimination of suggestibility in lineup instructions. While unbiased instructions tend to result in fewer correct choices, or hits, they also result in fewer misidentifications. However, if the point of the justice system is to make sure the verdict is “just”(defined as guided by truth, reason, justice, and fairness, see https://www.dictionary.com), then fewer misidentifications must be our key focus—even if that comes at a cost of correct hits.

Lineup Presentation—Blind Administration:

Eyewitnesses are more likely to make a false identification (in sequential lineups) when the administrator knows the suspect’s identity. This effect occurs even when an [unbiased] supervisor is in the room. Further, biased administration can negatively impact even well-encoded CR faces, resulting in misidentification.

Confidence v. Accuracy:

As a general rule, it is especially important to record identification procedures. However, these recordings are not as telling for CR cases as they are for SR cases (Smith et al., 2001). These recordings include the key reports of confidence level and judgment strategy. Confidence level is subject to many system variables and outside biases, such that if a confidence rating is not gained immediately at retrieval, the entire identification is questionable. Similarly, eyewitnesses who report using relative judgments, such as “I compared the photos to narrow choices,” make more false identifications than those who report using absolute judgments, such as “I just knew it was him, I am not sure why.” Response latency—or how long it takes the witness to positively identify a target from a lineup or photo array—must also be recorded. Studies show that for choosers, accuracy is indicated when identification is made in 15 seconds or less (Smith et al., 2001). However, the CRE may have additional effects on this point, especially considering that the CRE makes one more lenient in his choosing. Further, the length of the retention interval exacerbates the CRE (Marcon, Meissner, Frueh, Susa, & MacLin, 2010).

Prosecutors believe that virtually all eyewitness identifications are correct. Unfortunately, this is simply not the case. Studies show that clerks asked to identify customers they had just seen can only do so at a 34% accuracy rate. And, when asked to make this same identification only 24 hours after the encounter, accuracy was no better than chance levels (16%). What is incredibly alarming about these accounts is that the clerk-witnesses stated they were confident enough in their identifications to testify in court regarding them. A recent study found a greater proportion of false identifications made with high confidence levels in CR, as opposed to SR, faces. The magnitude of the CRE cannot be ignored, and fact-finders at trial must be made aware of both the differential rate and the lack of diagnosticity for confidence ratings with regard to CR identifications (Brigham et al., 2007).

Estimator variables, those that are measured after the identification has occurred, are often used to determine the likelihood that a “suspect” identification is correct. However, estimator variables are ineffective in CR cases. The confidence level of the witness, which carries great weight with a jury and judge regarding the credibility of the witness, is a poor “postdictor” (an indicator after the event has already occurred) of accuracy. In fact, studies show that confidence levels correlate to just under 30 percent accuracy in CR cases. Neither confidence level nor judgment strategy, while possibly useful indicators of accuracy in SR cases, are adequate in CR cases. This is important because the ruling set by the Supreme Court in Biggers relies heavily on confidence to determine accuracy, yet confidence, decision-time, and judgment strategy have little effect in CR cases (Smith et al., 2001). The same is true with regard to confidence levels prior to lineup (i.e., at the scene of a crime) with regard to CR witnesses (Hourihan, Benjamin, & Liu, 2012).

Though the CRE is quite robust, the general public is relatively unaware of it. In fact, a recent study by Abshire and Bornstein found that less than half of a mock venire knew anything about the CRE. Further, even among those who were aware, little value was given to the effect, considering the power it can have over the eyewitness account. Finally, the study found that black mock jurors were more aware of the phenomenon than white. A separate study of jurors in a mock trial concluded that only 18% of jurors would vote to convict where there were no eyewitnesses to a crime. However, 72% would convict on the same facts if there were one credible eyewitness. Finally, even when the eyewitness was fully discredited, the conviction rate remained high—at 68%—never returning to the previous “no eyewitness” level, despite the eyewitness being shown to be not credible. Bryan S. Ryan, Note, Alleviating Own-Race Bias in Cross-Racial Identifications, 8 Wash. U. Jur. Rev. 115, 122 (2015) (internal citations omitted).

However, one item that must be recorded, and is of great value with regard to CR cases, is non-identifications, which should be trusted as diagnostic. In the Cotton case, supra, the perpetrator left Thompson’s home after raping her, broke into another woman’s home shortly thereafter, and raped her as well. The second victim did not identify Cotton as the perpetrator. This was treated as a non-issue in pursuing Cotton and was not admitted at trial, despite being of exculpatory value (Hourihan et al., 2012).

Expert Testimony at Trial:

“Rather than merely informing jurors that research has found eyewitness testimony is fallible, it might be useful to give them examples of field research in which even SR identifications are highly suspect.” It appears unequivocal within the scientific community that CR eyewitness testimony is less credible than SR eyewitness testimony, which is already highly suspect. Wilson et al. calls the evidence for the CRE “reliable, robust, and overwhelming, a real and systematic bias that unduly harms suspects that are not of the witness’s ethnicity.” In fact, in writing this paper, this author only found one article whose writer implied the opposite: Importantly, Bartolomey was a prosecutor for the New Jersey Attorney General’s office at the time she authored the article, and the New Jersey Supreme Court had just authored the opinion in Cromedy, for which appeal Bartolomey had authored an amicus brief in support of the state’s position. New Jersey v. Cromedy, 727 A.2d 457 (N.J. 1999)(holding that all courts must specifically instruct jurors of cross-racial identity issues in certain cases).

Bartolomey argues that the evidence of the CRE is “hardly overwhelming,” and that any such effect will decrease and disappear as the world becomes more and more multicultural. She further argues that expert testimony regarding the CRE puts a “cloak of expertise on questionable stereotypes about interracial recognition that may or may not reflect the recall capacity of a witness,” demeaning that witness in the eyes of the jury for no reason other than that the witness and defendant have different-colored skin. The quote from Wilson et al. (2013) at the beginning of this section counters the statements by Bartolomey in two ways: First, it shows that expert witnesses are proper in all eyewitness cases under the rules of evidence; and second, it balances against the argument that any instruction or witness would invade the province of the jury, calling into question the credibility of the witness simply because it is a cross-race identification.

Federal Rule of Evidence 702 (most state rules are very similar) provides that an expert witness can give opinion or other testimony where the expert’s scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact at issue in the case. Fed. R. Evid. 702 (2015). Some benches have held that the CRE is common-sense information that all jurors are intuitively aware of. Cromedy, 727 A.2d at 463–64. Based on this, a judge may deny an expert witness, holding that expert testimony therefore would not assist the jury in making a factual determination. However, these cases are aging, and in many states, expert witnesses are being allowed to testify as to the CRE, especially as it has become better known (and thus accepted under the Daubert standard codified in Fed. R. Evid. 702).

Jury Instructions:

Traditional methods of legal safeguarding, such as pretrial hearings, cross-examination, and closing arguments, have proven insufficient in preventing wrongful convictions, especially those based on CR identification.

Bartolomey argued that criminal trial procedures have evolved to allow “maximum opportunity to expose a case of mistaken identity” through the traditional methods named above and through alibi witnesses, character testimony, or DNA evidence; therefore, jury instructions regarding the CRE are not biased, but completely unnecessary. The problems with Bartolomey’s argument are numerous. In fact, Bartolomey makes a key point against her argument without even realizing she did so:

Absent an ironclad alibi or definitive DNA results . . . it is difficult to prove with a scientific certainty the negative fact that a defendant was not at the crime scene. Archival studies seem to offer little hold of yielding hard scientific data in this area.

The Constitution and thus the American system of justice require that the Government prove the accused guilty beyond a reasonable doubt. It does not require the accused to put forth any evidence. Why? Because, it is virtually impossible for an innocent citizen to disprove a negative. Further, we have had each of the traditional methods Bartolomey named for decades, yet wrongful convictions based on eyewitness identification still occur. Though some have been cleared by DNA evidence, the larger majority of crimes in which eyewitness testimony sealed a conviction did not yield any type of DNA evidence by which the now-convicted person could be cleared (or proven guilty).

Bartolomey also argues that compared to research experiments, which employ mostly “unmotivated college students,” real-life crime victims are highly motivated to pay close attention to the perpetrator. The crime itself “cues an onlooker” to pay attention, as his identification might be needed in the future, Bartolomey argues. The facts in Neil v. Biggers showed that even the most well-designed experiment could not compare to a knifepoint sexual assault that lasted between 15 and 60 minutes, during which the victim studied the perpetrator, making an identification unlikely to be tainted by witness bias. However, this is exactly what occurred in the case of Ronald Cotton, noted at the beginning of this paper, and Bartolomey’s theories simply do not hold water.

In cases where expert testimony is not allowed, and preferably in addition to such testimony, the jury should be provided with instructions that inform them of the issues with CR identification, and require them to make a credibility finding. This is both impartial, yet instructive. Unfortunately, as shown above, even where the confident witness has been found incredible, the damage brought by his testimony may be difficult to impossible to repair. Bryan S. Ryan, Note, Alleviating Own-Race Bias in Cross-Racial Identifications, 8 Wash. U. Jur. Rev. 115, 122 (2015)(internal citations omitted). However, it is a start.

What cannot happen is qualified instructions: In the Cromedy opinion, the New Jersey Supreme court held that a jury instruction on cross-racial identification is required where: (1) identification is a critical issue in the case; and (2) the identification is not corroborated by any other admitted evidence. Cromedy, 727 A.2d at 467. The qualification is improper because it is then discretionary upon the court to decide if corroboration exists. In the Cotton case, the State offered at trial a flashlight found in Cotton’s home that “resembled” the one used by Thompson’s attacker, and evidence that the rubber on the bot­tom of a pair of shoes belonging to Cotton was “consistent with” rubber found “at one of the crime scenes” (http://www.innocenceproject.org/cases/ronald-cotton/). This alone could be enough evidence for a trial court to find corroboration exists and not require the instruction. And yet, Cotton was innocent—a victim of the cross-race effect.

Other Thoughts

While race is the most obvious category in which individuation should be focused for improvement, it is by no means the only group for which categorization occurs. Indeed, the in/outgroup categorization has been found for gender, age, and even to which university one “belongs.” This shows there is no limit as to the levels and groups to which individuation bias might be found. Indeed, studies show that age may additionally contribute to the CRE because as people age they generally are less discriminatory, basing choices on familiarity as opposed to recollection, magnifying the CRE and resulting in higher rates of false identification. Though police might be trained on CR group bias, it would be imprudent to suggest we can eliminate all bias, and it is important to consider such effects when it comes to eyewitness identification—both in research and in trial.

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