concurring:
I concur in the judgment that the trial court’s error in failing to offer a sua sponte identification instruction as required by Macklin v. United States1 was harmless. And I wholeheartedly concur in the promulgation of a model identification instruction which deals realistically with the shortcomings and trouble spots of the identification process. I have in the past repeatedly protested the practice of “turn[ing] over to the jury this critical question without even trying to acquaint it with the risks involved or the information now available that could illuminate its inquiry.” 2 The model instruction we approve today goes far toward providing that illumination. But not far enough.
The available data, while not exhaustive, unanimously supports the widely held commonsense view that members of one race have greater difficulty in accurately identifying members of a different race.3 The problem is by no means insubstantial; a significant percentage of the identifications in this jurisdiction are inter-racial. Yet, we have developed a reluctance — almost a taboo —to even admit the existence of the problem, let alone provide the jury with the information necessary to evaluate its impact.
This reluctance apparently grows out of a well-intentioned effort to insulate criminal trials from base appeals to racial prejudice. But I cannot agree that because any discussion of this identification problem necessarily refers to racial differences, such discussion is, as one New York appellate court has held, “prejudicial” and “divisive.”4 And it *560certainly does not excuse the pretension that the problem does not exist. In any event, a narrowly drawn instruction dealing with a familiar, albeit racial, phenomenon can hardly be equated with a broad appeal to racial prejudice.
The admission in a criminal trial of any evidence is governed by the familiar tests of logical and legal relevancy. Proffered evidence will be excluded if it does not make the “existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence.”5 And even if logically relevant, it will still be excluded “if its probative value is substantially outweighed by the danger of undue prejudice.”6 This excludes the classic appeal to racial prejudice: for example, the suggestion often made to a white jury that, if they fail to convict a black defendant charged with a crime of violence against another black, he and other blacks will be encouraged to commit similar crimes against whites.7 Such racial fears do not bear on whether a crime was committed, and, if so, whether the defendant committed it. Its only use could be to obtain a conviction on naked racism.
None of these problems are raised simply by recognizing the danger that inter-racial identifications may be more unreliable. That danger is plainly relevant to the accuracy of an identification, just as are the lighting conditions at the time of the offense, or the distance from which the subject was viewed. And it is certainly not “prejudicial” in the traditional sense of encouraging “decision on an improper basis.” 8 No appeal is made to decide guilt on the basis of race. That the identifying witness and the defendant are of different races is simply one of the factors to be considered in determining the central issue — the accuracy of the identification.9 Indeed, the jury will see with its own eyes when an identification is interracial. Explicit instruction restricting consideration of this fact solely to the issue of identification is an important safeguard against any other and unwarranted use of race by the jury.
Nor is anything added by labelling the mere mention of this identification problem “divisive.” It is hardly “divisive” to point out that racial divisions not only exist, but may have an operative, though unintentional, effect on the determination of a defendant’s guilt. I do not know if there can be any circumstances which would justify the fiction that these divisions do not exist. But I do know that a criminal trial is not any of them. The quest there is for truth, not reassurance.
It follows that counsel should be allowed to urge the jury to consider whether the inter-racial character of an identification affects its reliability. I also believe that when the issue is raised, the jury should be instructed to consider the matter. The jury’s knowledge of the relevant factors should not turn on the inadvertence or inexperience of trial counsel, and this is particularly so where the issue of identity is the question of guilt or innocence. Moreover, by offering something like the following instruction, the court sets the narrow context in which racial differences are relevant, *561and further ensures that jury consideration of these differences stays within such properly delineated bounds.
In this case the identifying witness is of a different race than the defendant. In the experience of many it is more difficult to identify members of a different race than members of one’s own. If this is also your own experience, you may consider it in evaluating the witness’s testimony. You must also consider, of course, whether there are other factors present in this case which overcome any such difficulty of identification. For example, you may conclude that the witness has had sufficient contacts with members of the defendant’s race that he would not have greater difficulty in making a reliable identification.10
. 133 U.S.App.D.C. 139, 409 F.2d 174 (1969).
. United States v. King, 149 U.S.App.D.C. 61 at 65, 461 F.2d 152 at 156 (1972) (Bazelon, C. J., concurring): United States v. Brown, Proctor & Williams, 148 U.S.App.D.C. 43 at 54 n. 1, 461 F.2d 134 at 145 n. 1 (1972) (Bazelon, C. J. dissenting).
. See the sources referred to in my dissent in United States v. Brown, Proctor & Williams, supra note 2, at 54 n. 1, 461 F.2d at 145 n. 1. There are indications that at least some of the District Judges in this jurisdiction routinely treat the racial character of an identification as one of the factors bearing on its reliability. In considering the question of independent source, essentially an issue of reliability, a trial judge recently made the following analysis:
The principal identifying witness, Mr. Williams is a Negro and so is the Defendant. He had ample opportunity at close range, under good lighting conditions, to observe the Defendant. The Court, after observing his demeanor and his manner on the stand, and his answer to various questions, is satisfied with his manner on the stand, and his answers or not he had seen photographs, he would be able, as he did in Court today, to identify the Defendant as the man who stuck a gun at him in the hold-up.
Quoted in United States v. Thomas, 149 U.S.App.D.C. 368, at 369, 463 F.2d 314, at 315 (1972) (emphasis added).
. See People v. Burris, 19 A.D.2d 557, 241 N.Y.S.2d 75 (2nd Dept. 1963) relying on People v. Hearns, 18 A.D.2d 922, 238 N.Y.S.2d 173 (2nd Dept. 1963).
. Proposed Federal Rules of Evidence, Rule 40; see McCormick, Evidence § 152 (1954); California Evidence Code § 210.
. Proposed Federal Rules of Evidence, Rule 403(a) ; see McCormick, Evidence § 152 (1954).
. See, e. g., Herrin v. State, 201 Miss. 595, 29 So.2d 452 (1947); State v. Thomas, 161 La. 1010, 109 So. 819 (1926); Kindle v. State, 165 Ark. 284, 264 S.W. 856 (1924); Caulery v. State, 156 Ark. 577, 247 S.W. 772 (1923); Thompson v. State, 27 Ga.App. 637, 109 S.E. 516 (1921); Hoskins v. Commonwealth, 152 Ky. 805, 154 S.W. 919 (1913); State v. Baker, 209 Mo. 444, 108 S.W. 6 (1908).
. Proposed Federal Rules of Evidence, Advisory Committee’s Note to Rule 403.
. See the trial court’s analysis quoted in note 3 supra.
. This instruction would immediately precede the reference to identification by senses other than sight in the Model Instruction.