- The Washington Times - Friday, August 12, 2005

ANNAPOLIS — A closely divided Court of Appeals yesterday overturned the attempted-robbery convictions of two men because their attorneys were not allowed to discuss during closing arguments the potential difficulties witnesses have in identifying assailants of a different race.

The convictions of the two Baltimore men, who are black, were based largely on identifications by the victim, who was white.

In a 4-3 decision, the state’s highest court ordered a new trial for James Smith and Jason Mack, who had been convicted on three counts each stemming from an attempt by two men to steal the car of Christine Crandall near her house in the Fells Point section of Baltimore on May 8, 2002.

Miss Crandall told police she resisted when two men tried to take her keys and that they left after she yelled to a neighbor to call 911. She later identified photographs of Mr. Smith and Mr. Mack as the two men who had confronted her.

At the trial, attorneys for both men were denied the right to discuss the issue of cross-racial eyewitness identification in closing arguments.

Judge Lynn A. Battaglia, writing for the majority, said that over the past half century, a growing body of research has suggested that some witnesses “are better able to identify members of their own race, but are significantly impaired when attempting to identify individuals of another race or ethnicity.”

“Numerous of these studies have shown that the own-race effect is strongest when white participants attempt to recognize black faces,” the opinion said.

Noting that Miss Crandall’s identification was the sole piece of significant evidence, Judge Battaglia said the defense attorneys were “entitled to challenge Ms. Crandall’s ‘educated’ identification of the defendants by arguing to the jury that her identification should not be accorded the weight that she credited to her own ability to identify them.”

The majority opinion acknowledged that the extent to which “own-race bias” affects eyewitness identifications is not known, but said: “Under these circumstances, defense counsel should have been allowed to argue the difficulties of cross-racial identification in closing arguments.”

Judge Glenn T. Harrell, writing the minority opinion, said the majority opinion appeared to suggest that “defense counsel automatically is permitted to argue that cross-racial identification is inherently suspect. …”

“The majority opinion raises more questions than it answers,” Judge Harrell wrote. “The majority opinion, as do most cases cited by the majority, treat race as a well-defined issue. It is not always so clear.”

The studies cited by the majority were mostly confined to black and white participants, the minority opinion said.

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