Smith v. State

Dissenting Opinion by

HARRELL, J.

which WILNER and GREENE, JJ., Join.

The basis upon which the majority here faults the trial judge is that she abused her discretion when she limited the scope of defense counsel’s closing to preclude arguing an alleged generalized difficulty inhering in cross-racial eyewitness identification situations due to own-race bias. For a number of reasons, I respectfully dissent. I would affirm the judgment of the Court of Special Appeals and the Circuit Court for Baltimore City.

I.

A.

Although the majority opinion sufficiently summed up the accepted principles regarding the proper scope of closing *490argument, I reiterate some of those principles for emphasis and to give them a perspective more in accord with what I believe to be a sounder application to the record in this case. In Wilhelm v. State, 272 Md. 404, 412, 326 A.2d 707, 714 (1974), we stated that:

As to summation, it is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range. Counsel is free to use the testimony most favorable to his side of the argument to the jury, and the evidence' may be examined, collated, sifted and treated in his own way.... Generally, counsel has the right to make any comment or argument that is warranted by the evidence proved or inferences therefrom; the prosecuting attorney is as free to comment legitimately and to speak fully, although harshly, on the accused’s action and conduct if the evidence supports his comments, as is accused’s counsel to comment on the nature of the evidence and the character of witnesses which the prosecution produces.

(citations omitted; emphasis added). In determining, when disputes arise, what is within the proper scope of closing argument, a court looks primarily to the evidence that has been admitted at trial.

In the present case, Petitioners failed to adduce at trial any evidence addressing the difficulty of cross-racial eyewitness identification generally or as evinced by the victim specifically in this case. Smith and Mack failed to elicit any evidence that the fact that the victim was Caucasian and her assailants African-American affected her identification of them in any way. Nor did they challenge during cross-examination or through any other evidence her ability to recognize persons of races other than her own. Although the jury, through its collective observations, presumably was able to deduce that the victim and the defendants may have been of different races, I am not prepared to accept the notion that that, standing alone, supports a debatable inference of diminished *491ability on the part of the victim/eyewitness to identify her assailants.9 Because Petitioners introduced no testimony or other evidence at trial relating to a specific deficiency in the victim’s ability to recognize and identify members of another race, 1 conclude that the trial judge properly exercised her discretion in denying defense counsel the desired opportunity to interject in closing unsupported arguments bearing on witness credibility.10

B.

In Wilhelm, 272 Md. at 438, 326 A.2d at 728, we also stated that:

Although it is fundamental that the argument of counsel should at all times be confined to the questions in issue and the evidence relating thereto adduced at the trial and such inferences, deductions and analogies as can reasonably and *492properly be drawn therefrom, it is proper for counsel to argue to the jury — even though evidence of such facts has not been formally introduced — matters of common knowledge or matters of which the court can take judicial notice.

I interpret this language, as applied to the present case, to mean that defense counsel could be permitted to make an argument in closing about the difficulty of cross-racial identification, even if there was no evidence at trial to support such an argument, as long as it could be demonstrated, to the satisfaction of the trial judge, that the subject matter of the proposed argument was of “common knowledge” or capable of judicial notice being taken of it.

Neither I nor apparently the trial judge are satisfied on this record that either was the case. Although, as the majority painstakingly demonstrates, there may be social science research and theories in academia on the topic of own-race bias and associated cross-racial identification difficulties, the “jury,” so to speak, is still “out” on the reliability of that research and conclusions. This healthy skepticism appears not only in some of the cases cited by the majority, but also in the majority opinion itself. See maj. op. at 488-89, 880 A.2d at 800 (stating that, “at this juncture, the extent to which own-race bias affects eyewitness identification is unclear based on the available studies addressing this issue”; “we cannot state with certainty that difficulty in cross-racial identification is an established matter of common knowledge”). Where does that leave the majority with respect to proper legal analysis in deciding this case?

The majority opinion, in a scant two paragraphs of actual legal analysis, concludes that the defendants were entitled to offer argument regarding the difficulties of cross-racial identification to challenge the eyewitness’s/victim’s actual testimony concerning her “enhanced ability to identify faces.” It is unclear to me, under any analysis (social science or law), how or why arguments related to cross-racial identifications are relevant or legitimate in impeaching the witness with regard to her self-assessed abilities and her background in the study of art.

*493c.

In its discussion of whether to permit comments upon cross-racial identification during closing argument, the majority opinion cites several cases from foreign jurisdictions. Most of them are opinions of state intermediate appellate courts (no offense intended and none taken, I hope). These cases, in any event, either are unpersuasive or refute the majority’s ultimate conclusion. For example, in several cases cited by the majority, the allusion to cross-racial identification appears merely as the most obiter of dicta. See State v. Wiggins, 74 Conn.App. 703, 813 A.2d 1056, 1059 (2003) (on the sole issue on appeal, the appellate court affirmed the trial court’s refusal to instruct the jury on cross-racial identification, but, in passing, commented that although a jury instruction may not be required does not preclude automatically cross-examination and closing argument to demonstrate a possible problem with cross-racial eyewitness identification); State v. Patterson, 103 N.C.App. 195, 405 S.E.2d 200, 206 (1991) (for no particular or specific reason, the intermediate appellate court acknowledges in passing that counsel in his closing argument at trial discussed problems of cross-racial identification, as well as other credibility of identification testimony generally).

Other cases, however, permitted comment upon cross-racial identification during closing argument, or as a jury instruction, based on the court’s finding that own-race bias is a matter within the jury’s common knowledge. See State v. Cromedy, 158 N.J. 112, 727 A.2d 457, 467 (N.J 1999) (allowing jury instruction on cross-racial identification, adding that there is a common sense view that members of one race have a greater difficulty identifying members of a different race); People v. Carrieri, 4 Misc.3d 307, 777 N.Y.S.2d 627, 629 (N.Y.Sup.Ct. 2004) (precluding expert testimony regarding the quality of cross-racial witness identification on the grounds that it falls within the ambit of jurors’ “general knowledge” and “life experiences” and therefore, although it is not an issue suitable for expert testimony, because it is “common knowledge” counsel is not precluded from alluding to the difficulty of cross-racial identifications during cross-examination and summa*494tion). As noted earlier, this notion of own-race bias as “common knowledge” is something that the majority explicitly rejects. See maj. op. at 488-89, 880 A.2d at 300.

Some of the cases cited by the majority state, usually in dicta, that such argument is only proper when defense counsel has touched on, or introduced evidence concerning, the specific impact of cross-racial identification in the particular case. See State v. Cunningham, 863 S.W.2d 914, 923 (Mo.Ct.App.1993) (allowing counsel, in closing argument, to discuss possible problems with cross-racial eyewitness identification, as consistent with challenges of the witness on cross-examination during trial). Nowhere in the majority opinion is there a discussion of the presence of specific evidence in this case relating to the victim’s ability (or limitations) in identifying persons of another race.

More importantly, the cases relied on by the majority emphasize that closing arguments or jury instructions referencing the potential for difficulties in cross-racial identification are not appropriate in every case in which the defendant and victim are of different races. See, e.g., Wiggins, 74 Conn.App. 703, 813 A.2d 1056, 1059 (noting that the Connecticut Supreme Court “has specifically rejected the notion of special treatment for defendants in cross-racial identification situations ... holding that the mere fact that a defendant is of a different race than a witness does not entitle the defendant to a special instruction on eyewitness identification at trial”) (citations omitted).

In Cromedy, 727 A.2d at 467, the court stated:

At the same time, we recognize that unrestricted use of cross-racial identification instructions could be counter-productive. Consequently, care must be taken to insulate criminal trials from base appeals to racial prejudice. An appropriate jury instruction should carefully delineate the context in which the jury is permitted to consider racial differences. The simple fact pattern of a white victim of a violent crime at the hands of a black assailant would not automatically *495give rise to the need for a cross-racial identification charge. More is required.

Although Cromedy addressed the propriety of a jury instruction, its reasoning regarding judicial discretion in determining which cases are appropriate for the injection of comments about cross-racial identification are quite relevant here. Nonetheless, the majority opinion is devoid of any discussion or elaboration on the scope of the use of cross-racial identification arguments during closing. Much mischief will be spawned by so open and free an endorsement of what Smith and Mack sought here. Taken on its face, the majority opinion appears to suggest that, whenever a victim or any eyewitness presents testimony or evidence tending to bolster his or her ability to be accurate in identifying a defendant, who happens to be of another race, defense counsel automatically is permitted to argue that cross-racial identification is inherently suspect, even if the victim’s testimony makes no mention of enhanced ability relating to race. The majority opinion raises more questions than it answers.

II.

The science behind the concept of own-race bias and its effects on cross-racial identification has not been vetted sufficiently on this record or generally in the social science or legal fields. To allow what the majority appears to sanction will create severe and limitless implications that do not appear to have been contemplated by the majority in its opinion. For example, would the fact that a Caucasian witness is an avid fan of the National Basketball Association be relevant or probative in determining that such a witness was above average in his or her proficiency in identifying African-Americans? See Gary L. Wells & Elizabeth A. Olson, The Other-Race Effect in Eyewitness Identification, 7 Psychol. Pub. Pol’y & Law 230, 232 (2001) (describing a study that found that study participants who indicated that they were serious fans of the NBA experienced mitigation of their own-race bias). Inquiry into the extent of a witness’s contacts with other races, his or her attitudes toward those races, and whether he or she had a *496particular experience with members of a different race are invited. If a trial judge were to find relevant the direction of this sort of cross-examination, how and when does the judge limit the amount of this testimony, before running afoul of problems in a criminal case such as were present in a civil context in Tierco Maryland, Inc. v. Williams, 381 Md. 378, 849 A.2d 504 (2004) (irrelevant and improper injection by African-American plaintiffs of racial considerations in tort suit tainted jury verdict in their favor). I am not prepared to say such lines of inquiry never are to be allowed, only that the relatively novel (as far as the law is concerned, at least) concept of own-race bias and how that may affect the accuracy or reliability of cross-racial identifications needs to be subjected to a Frye-Reed,11 or even Daubert,12 analysis before the Pandora’s box of its topic is opened for use in criminal trials.

The question also exists of how one defines race for purposes of the context of what the majority opinion appears to recognize as new Maryland common law. The majority opinion, as do most of the cases cited by the majority, treat race as a well-defined issue. It is not always so clear. Most of the studies cited by the majority were confined to examinations of *497the interactions of persons of African-American and Caucasian ethnicities. There is scant inquiry or research regarding own-race bias implications with respect to Asian-Americans, individuals of Hispanic or Latino ethnicity, or other races and ethnicities.

Another problem is, when it is not apparent from visual observation, how does one know what the race of an individual is. Eliciting testimony on the issue of which race a witness or defendant is a member of may draw undue attention to race, thus triggering the need for a balancing of probity versus prejudice as to the line of questioning. Although unnecessary appeals or mentions of race are taboo in many, if not most, criminal trial contexts, the full implications of the majority opinion appear to require a full discussion of race as a preliminary issue.

What of multiracial individuals? Would a witness with hereditary backgrounds from two or more races qualify for attack as to his or her own-race bias with respect to all implicated races, the race that that the witness least identifies with, or only those of the race the witness most resembles physically? This Court should not let the Genie from the bottle without considering and giving guidance to Bench and Bar as to how its holding should be applied. This is not an area that the majority should whistle by the graveyard and leave to development through future cases, given the potential for significant confusion.

Arguing to a jury the potential difficulties in cross-racial identification also begs the question of whether it would be proper to allow the obverse argument where the witness and the defendant are of the same race. In such a situation, would it be proper to permit the prosecutor to argue that the witness’s identification is entitled to more credence because the witness and the defendant are of the same race? There are studies suggesting that some racial groups are better in general in identifying faces. See, e.g., Stephanie J. Platz & Harmon M. Hosch, Cross-Racial/Ethnic Eyewitness Identification: A Field Study, 18 J. Applied Soc. Psychol. 972, 977-78 *498(1988) (finding that African-Americans make better eyewitnesses in general). Would parties whose witnesses fall within those racial groups be entitled to make this identification “bonus” argument?

On this record, I agree with the majority opinion of the Court of Special Appeals that the issue of whether to allow argument as to cross-racial identification “difficulties,” on this record and at the current stage of scientific development of the topic, is more prejudicial than probative:

[W]e may be opening the door to questioning and proffers of proof so that every time a witness makes an identification of an offender of another race, he is subject to cross-examination on the nature and extent of his contacts with and attitudes (favorable or not) toward the other race.... The vice of such an argument is not only that it is predicated on false and illogical premise, but more important it is divisive: it seeks to separate the racial origin of witnesses in the minds of the jury, and to encourage the weighing of testimony on the basis of the racial similarity or dissimilarity of witnesses.

Smith v. State, 158 Md.App. 673, 692-93, 857 A.2d 1198, 1209 (2004) (citations and quotations omitted). The majority opinion in this Court appears to ignore the potential for prejudice. There is no mention of this potential effect, thus allowing one side effectively to denigrate an opposing witness’s credibility based solely on his or her skin color or ethnicity.

III.

Whether general difficulties fairly may be said to exist in cross-racial identification situations likewise is not a fit topic for judicial notice. Maryland Rule 5-201, regarding judicial notice of adjudicative facts, states:

(a) Scope of Rule. This Rule governs only judicial notice of adjudicative facts. Sections (d), (e), and (g) of this Rule do not apply in the Court of Special Appeals or the Court of Appeals.
*499(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to be heard. Upon timely request, a party is entitled to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury. The court shall instruct the jury to accept as conclusive any fact judicially noticed, except that in a criminal action, the court shall instruct the jury that it may, but is not required to, accept as conclusive any judicially noticed fact adverse to the accused.

Of course, neither Mack or Smith asked the trial judge to take judicial notice of own-race bias as it may bear on the accuracy or reliability of eyewitness identification. Had they, I have no doubt on this record that she would have denied such a request. As illuminated in Faya v. Almaraz, 329 Md. 435, 444, 620 A.2d 327, 331 (1993), judicial notice is limited to either matters of common knowledge or capable of certain verification. Included in the latter category are facts “capable of immediate and certain verification by resort to sources whose accuracy is beyond dispute.” Id. (citations omitted). Those standards can not be satisfied on this record nor, at this stage of scientific development, in the particular social science field that appears to spawn the basis for the proposed argument.

*500For all of the above reasons, I conclude that this case is not the one by which Maryland should sanction the interjection in its criminal trials, via the back-door of allowing its use in closing argument in the absence of evidentiary support in the record, of the potential for cross-racial identification difficulties based on an own-race bias. Accordingly, I dissent and would affirm the judgments below.

Judges WILNER and GREENE authorize me to state that they join in this dissent.

. Smith and Mack had full opportunity (which they exercised) to interrogate the victim and argue traditional eyewitness credibility factors, such as stress of the incident, nighttime, brevity of encounter, multiple assailants, and lack of prior association with the defendants. The Maryland Criminal Pattern Jury Instructions regarding “Credibility of Witnesses” (MPJI-Cr 3:10) and “Identification of Defendant” (MPJICr 3:30) were given.

. The trial court recognized that the defendants did not present any evidence relating to cross-racial identification difficulties specifically or generally. The following colloquy during discussion of proposed jury instructions evinces that:

[Mack’s Defense Counsel:] Your Honor, I understand you will not be reading an instruction to the jury on cross racial identification. Nonetheless, will the defense counsel be permitted to argue to the jury on cross racial identification!?]
[The Court:] The defense counsel will not be able to argue cross racial identification, [ ] there is no evidence in this case to that effect. But defense certainly could say my client is black, victim is white.
[Mack's Defense Counsel:] But we are free to argue one reasonable inference, identification would not be as strong as if the complainant and defendant were the same race?
[Court:] You can argue [the] facts that are in evidence. That is not a fact that is evidence.
[Mack’s Defense Counsel:] But it’s an inference that can be drawn.
[The Court:] You can argue he is black, and the victim is white. Anything else?
[Mack’s Defense Counsel:] No, Your Honor.

. The Frye-Reed. test regarding the acceptance of expert testimony, such as in novel scientific areas, represents Maryland’s adoption, in Reed v. State, 283 Md. 374, 391 A.2d 364 (1978), of the standard enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). This standard, as announced in Reed, states that, "before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field.’’

. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (1993), the U.S. Supreme Court rejected the Fiye standard and clarified the federal standard for admitting expert scientific testimony in a federal trial. The Court found instead that, under Federal Rule 702, the rule governing expert testimony, a federal judge must make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. Maryland has not rejected the Daubert standard, leaving to case-by-case development whether and to what extent Daubert may apply here. See Committee Note to Md. Rule 5-702.