Whether an argument stating that intraracial identifications are more reliable than cross-racial identification is proper in a prosecutor's summation to the jury where the issue of race-based identification formed no part of the record in the case.

No. It is improper for a prosecutor in summation to argue to the jury that intraracial identifications are more reliable than cross-racial identifications where the record is devoid of the issue of race-based identification.

Defendant was convicted of criminal possession of a weapon after a witness to the altercation reported that he saw a young African-American male had been holding a handgun and identified Defendant as the person who fired the gun. At trial, Defendant claimed misidentification, and introduced three witnesses who supported his description of the events of the altercation. The in-court identification by the People's witness was the only direct evidence that linked Defendant to the gun.

On summation, the trial court allowed the Assistant District Attorney to argue to the jury that intraracial identification was more reliable and thus, the People's witness's identification was more reliable since both he and the Defendant were African American. Following a jury verdict Defendant was convicted. The Appellate Division found the summation was proper; one Justice dissented and granted leave to appeal to the Court of Appeals.

On appeal, the Court determined that the race-based argument that intraracial identifications are more reliable than cross-racial identifications was not a proper subject for summation. The Court found that the error was not harmless since the case turned on the jury's evaluation of a single witness. Consequently, the Court reversed the Defendant's conviction and ordered a new trial.

The Court stated that the issue of race-based identification was not raised until the prosecutor's closing argument, thus giving him the final word on the matter. The error was enhanced by the court's failure to sustain the defense's objection that the argument was improper or to offer a curative instruction. Furthermore, the Court noted that psychological studies and cases that have relied on them do not support the prosecutor's argument, since most of the case law deals with using expert testimony to challenge cross-racial identifications.