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NJ Conviction Reversed

08
Feb
2011

by in Criminal Appeals, Criminal Defense

State v. Jashown Walker, ? N.J. Super. ?, 2010 N.J. Super. LEXIS ? (December 13, 2010) – Conviction reversed. ”

Defendant contends the judge committed reversible error in refusing to give a cross-racial identification instruction because Marchak is Caucasian and he is African-American, identification was the critical issue in the case, and Marchak’s identification was not corroborated by any other evidence…. In this case, the judge acknowledged that ‘identification [wa]s a central issue in the case.’ He further observed ‘[t]here should have been some additional corroborating evidence,’ implicitly recognizing the lack of any independent corroboration of Marchak’s identification of defendant. Nevertheless, in concluding a cross-racial identification charge was not necessary, the judge in this case repeatedly observed that Marchak worked in downtown Newark and had ‘substantial connection with African[-]Americans.’ However, as defense counsel noted, the Court’s holding in [State v. Cromedy, 158 N.J. 112 (1999)] was based upon the fact that ‘eyewitnesses experience a “cross-racial impairment” when identifying members of another race,’ 158 N.J. at 121, with ‘”decreased accuracy in the recognition of other-race faces [that] is not within the observer’s conscious control.”‘ Id. at 131…. Whether such ‘impairment’ is reduced through exposure to members of a different race was simply not discussed by the Court, nor did the judge in this case cite any authority for that proposition. The judge also concluded that the identification testimony did not involve race, but was ‘more about the opportunity that the victim had to observe the two individuals.’ However, the Court in Cromedy recognized that possible inherent bias in a cross-racial identification is simply one factor for the jury to assess among the totality of factors regarding identification testimony, including the opportunity the victim had to observe the perpetrator. 158 N.J. at 133. In short, a cross-racial identification charge should have been provided to the jury in this case.”

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