By: Timothy Mondloch
The state of Arizona just killed a 76-year-old man for a crime he did not commit. Murray Hooper, 76, was sentenced to die in 1980 for the murder of two people.[1] In a trial marred by misconduct, Hooper was convicted despite no physical evidence linking him to the crime.[2] The only piece of evidence the prosecution relied upon to convict Hooper was the eyewitness testimony of Marilyn Redmond, the wife of one of the victims present at the time of the crime.[3] Redmond initially stated that “three black men came in and robbed [them]” before later changing her story, saying that one of the robbers was white.[4] According to police, Redmond chose Hooper and his co-defendant William Bracy out of two separate lineups, identifying them as the two black men she saw.[5] The police did not take any audio or video recordings of either identification.[6] Despite years of appeals and multiple attorneys emphasizing the lack of evidence against Hooper, he was ultimately killed by lethal injection this past Wednesday.[7] Hooper’s case is yet another example of an issue that plagues courtrooms around the country; heavy reliance on faulty eyewitness identifications.
Eyewitness misidentification is the “leading cause of wrongful convictions” in the United States.[8] The problems with eyewitness identifications are numerous; suggestive police procedures that taint the witness’ memory,[9] prosecutorial suggestiveness during the witness preparation process,[10] and general issues with the witness’ initial perception of the incident such as lack of light, short amount of time to see the perpetrator, weapons focus (focusing on the weapon a perpetrator is holding as opposed to their face), and many others.[11]
All of these issues are magnified when the eyewitness is of a different race than the person they are identifying.[12] Known as “own race bias” or the “cross-race effect,” it is the phenomena of an eyewitness being more likely to misidentify an alleged perpetrator of a different race than one of the eyewitness’ own race.[13] There are many possible explanations for this. One is what is known as Social Categorization, where an individual’s mental schema (or shortcuts) used to quickly process information can prevent that person from paying attention to individual differences in the features of people of different races.[14] Another is a witness’ lack of meaningful interracial contact, leading to that person being less likely to view people of other races as distinct individuals, preventing them from noticing and remembering individuating features.[15] This phenomena is seen across all different races, with the effect being more pronounced when white people attempt to identify people of different races.[16]
This issue of cross-race eyewitness misidentification has tangible and often irreversible consequences. About “42% of [wrongful convictions]” can be attributed to cross-race misidentification.[17] This, coupled with the disparate rate at which members of historically marginalized racial groups are targeted by police,[18] illustrates the tangible effects of racial bias on historically marginalized communities.
So, what can be done to fix this? Socially, the problem of Social Categorization seems to be reduced when individuals of different racial groups have high-quality contact with members of other racial groups.[19] This forces the individuals’ mental schema to be altered so that they can more accurately individuate members of different races.[20] When paired with a broader societal understanding of the problem of Social Categorization, this could help prevent the problem of cross-race misidentification before it happens. In the legal space, there is much that can be done. In trial, courts need to allow expert testimony to be presented regarding the problems with eyewitness identification, especially across races, so that the jury can give accurate weight to the eyewitness testimony being presented.[21] Pre-trial, prosecutors and police need to account for this issue by having other evidence (where possible) against an individual separate from eyewitness identification before bringing charges in the first place. In addition, the suggestive identification practices of police and prosecutors and racial biases inherent in the criminal legal system need to be abolished in order for fair trials to occur and racially disparate issues such as cross-race misidentification to be swiftly addressed before causing harm to criminal defendants.
Murray Hooper is one heartbreaking example of what happens when cross-race eyewitness misidentification is allowed to go unchecked. Significant changes need to be made to prevent people like Murray from dying at the hands of individual’s racial biases.
[1] Jacques Billeaud, Judge keeps Arizona execution plan on track for Wednesday, AP News (Nov. 14, 2022), https://apnews.com/article/arizona-executions-forensics-government-and-politics-8b81c8e30f0d36346bb769612efe3d25
[2] Liliana Segura, Out of Time: Staring Down the Execution Chamber at 76, Murray Hooper Still Says He’s Innocent, The Intercept (Nov. 15, 2022), https://theintercept.com/2022/11/15/murray-hooper-arizona-execution/.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. See also State v. Hooper, 145 Ariz. 538, 543 (1985).
[8] Jed S. Rakoff & Elizabeth F. Loftus, The Intractability of Inaccurate Eyewitness Identifications, 147 (4) Daedelus 90, 90 (2018).
[9] Id. at 92-93.
[10] Id. at 93.
[11] Id.
[12] Lynn Su, Unpacking the Teaching Potential of a Hypothetical Criminal Case Involving a Cross-Racial Eyewitness Identification, 66 N.Y. L. Sch. L. REV. 339, 346 (2021).
[13] Id.
[14] Andrew E. Taslitz, “Curing” Own Race Bias: What Cognitive Science and the Henderson Case Teach About Improving Jurors’ Ability to Identify Race-Tainted Eyewitness Error, 16 N.Y.U. J. LEGIS. & PUB. POLY 1049, 1058, 1063-72 (2013).
[15] Id. at 1058.
[16] Su, supra note 11, at 346.
[17] Edwin Grimsley, What Wrongful Convictions Teach Us About Racial Inequality, The Innocence Project (Sep. 26, 2012), https://innocenceproject.org/what-wrongful-convictions-teach-us-about-racial-inequality/
[18] Id.
[19] Su, supra note 11, at 347.
[20] Id.
[21] See Taki V, Flevaris and Ellie F. Chapman, Cross-Racial Misidentification: A Call to Action in Washington State and Beyond, 38 SEATTLE U. L. REV. 861 (2015).
