¶34 (concurring) — I agree with the lead opinion that State v. Laureano, 101 Wn.2d 745, 682 P.2d 889 (1984), overruled on other grounds by State v. Brown, 113 Wn.2d 520, 782 P.2d 1013 (1989), and subsequent Court of Appeals’ decisions have rejected the categorical use of a Telfaire12 instruction. I further agree with the lead opinion that the trial court did not abuse its discretion in this case because there was no indication that Gerald Kovacs’ identification of Bryan Allen was based upon facial features or other specific physical characteristics beyond the mere fact that Allen is African American.
¶35 I write separately because I believe in a hypothetical case where a victim makes a cross-racial identification based on a suspect’s facial features, hair, or other physical characteristic implicating race, a trial judge likely would abuse his or her discretion if he or she refused to provide a cross-racial identification instruction. The dissent properly recognizes that cross-examination, expert testimony, and *633closing argument may not provide sufficient safeguards against cross-racial misidentification because the very nature of the problem is that witnesses believe their identification is accurate. Further, as discussed by the dissent, with social science data increasingly casting doubt on the reliability of cross-racial identification, our courts must carefully guard against misidentification.
¶36 However, the dissent’s concerns are misplaced in this case. The identification here simply did not implicate the type of physical characteristics that give rise to erroneous cross-racial identifications or the need for an instruction. Besides reporting the suspect to be African American, Kovacs described the man in race-neutral terms: mid-20s; about 5'9" in height and 210-220 pounds; wearing a black hooded sweatshirt, dark blue jeans, big gold-framed sunglasses, and a dark baseball cap; and possessing a gun. When asked by the 911 operator if the man had any facial hair, Kovacs responded vaguely, “Not that I remember,” signaling a lack of attention to facial features. I Verbatim Report of Proceedings (Oct. 22, 2009) at 5. At trial, when Kovacs described how he identified Allen as the man who had threatened him, he referred to Allen’s hat, clothes, and sunglasses. Indeed, Kovacs did not even mention Allen’s facial features, hair, or other physical characteristics. While one might infer from Kovacs’ estimate of the older suspect’s age and the lengthy encounter between Kovacs and both suspects that Kovacs must have considered facial features at some point, this would be purely speculative. Instead, the record in this case supports the lead opinion’s conclusion that the identification here was based primarily on race-neutral factors.
¶37 Therefore, I agree with the lead opinion that the trial court did not abuse its discretion when it refused to give an instruction on cross-racial identification in this case.
*634Chambers, J.*¶38 (concurring in result) — I concur with much in the well reasoned dissent. The cross-racial instruction is correct and will be necessary from time to time to instruct the jury on the dangers of cross-racial identification. However, I join the lead opinion in result because I also agree with Chief Justice Madsen that under the facts of this case we cannot say the trial judge abused her discretion in declining to give the instruction. I also agree with the lead opinion that “true threat” need not be pleaded in the information and included in the “to convict” instruction, though of course the jury must be properly instructed on its meaning.
¶39 I write separately to stress that the lead opinion holds, and I agree, that expert testimony on the weakness of cross-racial identification is admissible when relevant and helpful. Lead opinion at 624 n.6 (citing State v. Cheatam, 150 Wn.2d 626, 646, 81 P.3d 830 (2003)); see also State v. Jaime, 168 Wn.2d 857, 869, 233 P.3d 554 (2010) (Sanders, J., concurring). The recognition that expert testimony is admissible is very important to our justice system, which for so long has relied so heavily upon eyewitness identification to convict and sentence. The American Bar Association reports that “[approximately three-quarters of the more than 200 wrongful convictions in the United States overturned through DNA [deoxyribonucleic acid] testing resulted from eyewitness misidentifications. Of that 77 percent, where race is known, 48 percent of the cases involved cross-racial eyewitness identifications.” Am. BarAss’n, Criminal Justice Section, Report to the House of Delegates 6 (Aug. 2008) (ABA Report)13 (citing Innocence Project Fact Sheets, Eyewitness Misidentification and Facts on Post-Conviction DNA Exonerations). The amici briefs submitted by college *635and university professors, the American Civil Liberties Union of Washington, the Fred T. Korematsu Center for Law and Equality, and the Innocence Network, joined by many others, bring a wealth of research demonstrating the dangers of cross-racial identification, which the State does not deny.
¶40 Unfortunately, the value of any expert testimony will be diluted without an instruction to guide the jury in bringing the expert’s testimony into their deliberations in a reasoned way. We now know that such instructions are necessary to ensure a fair trial. See ABA Report (discussing the need for such an instruction). Indeed, the better practice may be to instruct whenever cross-racial identification is implicated. State v. Henderson4 208 N.J. 208, 27 A.3d 872 (2011) (requiring such instructions). At the very least, I concur with the dissent that trial courts should be required to give the instruction where eyewitness identification is a central issue in a case, there is little evidence corroborating the identification, and the defendant specifically requests the instruction. Dissent at 637. I also stress that we have long rejected the contention that such instructions function as unconstitutional comments on the evidence. State v. Carothers, 84 Wn.2d 256, 267-68, 525 P.2d 731 (1974).
¶41 We must learn from our mistakes; both liberty and justice depends upon it. Given the demonstrated weakness of eye witness testimony in general and cross-racial eyewitness identification in particular, in my view, expert testimony and instruction to the jury on the weakness of cross-racial identifications should be the standard in our courtrooms whenever it would be helpful. I respectfully concur in result.
Fairhurst, J., concurs with Chambers, J. Pro Tem.United States v. Telfaire, 152 U.S. App. D.C. 146, 469 F.2d 552 (1972).
Justice Tom Chambers is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a).
Available at http://www.americanbar.org/content/dam/aba/publishing/criminal_ justice_section_newsletter/crimjust_policy_eyewitness.authcheckdam.pdf.