Brief of Brooklyn Defender Services, The Legal Aid Society, The Bronx Defenders, Neighborhood Defender Service of Harlem, the National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, and the Chief Defenders Association of New York as Amici Curiae in Support of Appellant.
Argument: There is substantial scholarly authority establishing that cross-racial identifications are less reliable and more prone to inaccuracy than other identifications. Failure to instruct the jury on the issue of cross-racial identification risks erroneous convictions due to Jurors' lack of awareness of the issue and potentially deprives defendants of their right to a fair trial. A defendant's right to call an expert on the issue of a cross-racial identification does not cure the prejudice resulting from the absence of a jury instruction. Cross-examination is an ineffective way to introduce pertinent information on own-race identification bias, and a rule requiring it to receive an instruction would almost certainly alienate jurors in the process. New York should implement a mandatory cross-racial jury instruction that reflects widely-accepted science.