That's the question now before the Supreme Court of Washington. Eyewitness evidence in general has questionable reliabililty. Empirical data show that eyewitness identifications by persons of a different race than the person identified are statistically much likelier to be wrong than same-race identifications. The Washington justices have heard arguments on whether an instruction on the question should have been given in a felony harassment trial of a black man convicted largely on the eyewitness testimony of a white man. The Seattle Times has a detailed story. The state prosecutors' association is going all out to fight a jury instruction, arguing that the proposed instructions would violate the state's constitution and invite all kinds of "practical difficulties."
"Our society now is increasingly made up of mixed-race people. Well, what race are they? To take an example we could all relate to: President Obama. He is of mixed racial heritage. If he's an eyewitness to a crime, is he presumed to be able to identify white people and black people? Or, perhaps, neither?"
Dwyer also asked: "Does race include ethnicity?" Some studies say Chinese people struggle to distinguish Japanese people, and vice versa. Would trial judges need to instruct jurors in cases like that? And if someone's race isn't entirely clear, how is a judge to figure that out?
