Court Asked to Reverse Self on Voiding Robbery Conviction

SAN FRANCISCO — The California Supreme Court was told Thursday that judges should warn jurors in criminal trials about the dangers of mistaken identity--particularly when an eyewitness and the defendant are of different races.

“It’s been recognized over and over again that such eyewitness identifications tend to be extremely unreliable,” state Deputy Public Defender Peter R. Silten argued before the court. “The greatest caution must be taken.”

But a state prosecutor disagreed and contended that such a warning would represent a misleading “one-sided” comment on the evidence by the judge, intruding on the jury’s duty to evaluate testimony.

“It sort of hammers home to the jury that the judge doesn’t trust this kind of evidence,” Deputy Atty. Gen. Catherine A. Rivlin told the justices.

New Trial

At issue during the one-hour hearing was whether the newly aligned court should reject a decision issued in January under former Chief Justice Rose Elizabeth Bird that ordered a new trial for a black man convicted of an armed robbery on the basis of testimony by three non-white victims.

The Bird court, over the dissent of now-Chief Justice Malcolm M. Lucas, took the unusual step of suggesting jury instructions for judges to read in cases where eyewitness identification was a key issue.

The instructions, which would be modified at trial depending on circumstances, tell jurors that eyewitness identification “is not always reliable” and should be viewed “with caution.”

They add that “studies show that when the witness and the person he is identifying are of different races, and particularly when the witness is white and the offender is black, the identification tends to be less reliable than if both persons are of the same race.”

Lucas, in his 23-page dissent, agreed that it was permissible for jurors to include race among the factors they consider when they evaluate testimony about a defendant’s identification. But he said going further with the cautionary instructions could give the jury the improper impression that the judge “considers the evidence not only particularly important but also overwhelmingly suspect,” he said.

Last-Minute Actions

The January decision was issued in a flurry of last-minute actions just before the departure of Bird and two other justices defeated in the Nov. 4 election.

Soon after, Atty. Gen. John K. Van de Kamp sought a rehearing, and the new court, now led by Lucas and dominated by appointees of Gov. George Deukmejian, agreed in March to reconsider the issue.

In Thursday’s hearing, Rivlin contended that the studies the Bird court cited in its ruling were “tentative at best” and that the alleged unreliability of eyewitness identifications was not a fully documented scientific fact.

“The (cautionary) instruction may very well mislead the jury, rather than help it find the truth,” she said.

But Justice Allen E. Broussard replied that there was considerable evidence “that indicates that many well-motivated, honest witnesses just make mistakes in identification.”

Silten argued that a cautionary instruction “is fair and in no way usurps the power of the jury.” Some jurors might not need to be cautioned about mistakes in interracial identifications, but others might, he said.

“We have jurors who are smart and some who are not so smart,” he said.

Question Posed

Justice Stanley Mosk, author of the court’s January opinion, asked pointedly if there were anything in the court’s proposed cautionary instructions that would require a jury to reject a cross-racial identification.

“Not at all,” Silten replied.

The case before the court involves a 1982 robbery at a wholesale beverage company in San Francisco in which 11 employees were held at gunpoint by a group of masked men. Later, Carl A. Wright and another man were charged with the crime, and the sole issue at trial was whether they were correctly identified as among the robbers.

Three of the employees, with varying degrees of certainty, testified that the masks did not completely disguise the robbers and that they were able to identify Wright as one of the culprits. Wright, then 19, was convicted and sentenced to state prison; the jury was unable to reach a verdict on the other defendant.

In its January ruling, the state high court concluded that the jury should have been cautioned by the judge about the dangers of mistaken identification. Because it was “reasonably probable” the outcome would have been different had the instructions been given, Wright was entitled to a new trial, the court said.