dissenting.
Less than a month after she was assaulted by three young men, the complainant, Ms. Freedhoff, identified two men from photographs as among the assailants. One was appellant. According to the detective who showed her the photographs, she did not hesitate in picking appellant, and at the hearing on appellant’s motion to suppress the identification she twice stated that she had been “very certain” in selecting his photograph. At trial, although she could not remember appellant’s exact role in the assault, she stated that she had been able to see all three assailants well, that the two people she was “certain of’ in her identification “were probably the two” who had been “in front of [her]” during the assault,1 and that she had identified them because “they looked very familiar to [her] as being the people that were involved.” Ms. Freedhoff was not given to quick accusations: at a show-up confrontation shortly after the assault, she had been “[completely] certain” that the individuals shown to her were not the assailants. The trial judge, sitting as trier of fact, found her testimony convincing and found appellant guilty beyond a reasonable doubt.
The majority sets that verdict aside. Although concededly unable to replicate Judge Mitchell’s vantage point in assessing the complainant’s demeanor and the strength of her belief as she recalled the robbery and identification, it concludes that the identification was too weak as a matter of law to support conviction. And it does so at bottom for one reason: when asked by the detective her level of certainty “on a scale of one to ten” in identifying appellant, Ms. Freedhoff had answered “seven or eight.” This, in the majority’s view, explains what she meant when she said she was “very certain,” and a level of uncertainty of an uncorroborated eyewitness “standing] at two or three out of ten, or 20%-30%[,] ... constituted reasonable doubt as a matter of law.” Ante at-.
The majority thus decides that the trier of fact could not convict based on testimony of a victim who was as much as four-fifths certain of her identification. I do not agree, basically because I believe that the entire effort to quantify the standard of proof beyond a reasonable doubt is a search for fool’s gold. Ms. Freedhoff stated that she was very certain of her identification; she was questioned extensively about the circumstances of the photo de-*464play and the assault; and she offered reasons for her certainty. The fact that when asked to rate her certainty “on a scale of one to ten” she answered “seven or eight” cannot be decisive unless, like the majority, one is ready to substitute an unreliable, quantitative test of certainty for the intensely qualitative standard of proof beyond a reasonable doubt. Even in popular usage, the “scale of one to ten” as an indicator of belief is notoriously imprecise. People who in any ultimate — and unaseer-tainable — sense probably share the same level of conviction may translate that very differently into numbers, and even the same person will change his mind from one moment to. the next in assigning a percentage to his belief. Treating “one to ten” as a decisive indicator of the sufficiency of identification evidence thus elevates, to a legal standard a popular measure that makes no claim at all to precision. As Wigmore stated long ago in this context, “The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be yet no successful method of communicating intelligibly ... a sound method of self-analysis for one’s belief.” 9 J. WIGMORE, EVIDENCE 325 (3d ed.1940) (quoted in In re Winship, 397 U.S. 358, 369, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring)). Here, for example, Ms. Freedhoff equated “seven or eight” with being “very certain”; for all we know, she thought that any higher number would approach mathematical or absolute certainty, something the reasonable doubt standard does not require. The trial judge wisely did not view her attempt to furnish a numerical equivalent for her belief as conclusive, and neither should we.
The judicial straw polls cited by the majority merely confirm the futility of defining a percentual range (or “ball-park,” to quote the majority) within which proof beyond a reasonable doubt must lie. Had Ms. Freedhoff added five percent to her belief-assessment (as much as “85%” rather than as much as “80%”), she would have come well within the range of, for example, Judge Weinstein’s survey in Fatico. A factfinder’s evaluation of credibility and intensity of belief should not be overridden by such inexact and even trivial differences of quantification.
Another aspect of the majority’s opinion requires comment. It points to “[t]he vagaries of eyewitness identification,” explains that this was a case of “cross-racial identification by a white woman of a black teenager,” and cites to the “ ‘well established ... comparative difficulty in recognizing individual members of a race different from one’s own.’ ” Ante at-(quoting ELIZABETH LOFTUS, EYEWITNESS TESTIMONY § 4.9 (3d ed. 1997 & Supp.1999)). It is not clear what the majority means by this discussion. The present appeal is not about whether a trier of fact may hear expert testimony or be instructed regarding the uncertainties of eyewitness identification, cross-racial or any other. See, e.g., Green v. United States, 718 A.2d 1042 (D.C.1998); United States v. Telfaire, 152 U.S.App. D.C. 146, 469 F.2d 552 (1972). Here the majority holds the identification insufficient as a matter of law, which implies that the trier of fact was required to discount the identification to an (undefined) extent because of the intrinsic weakness of eyewitness identifications generally or because this one was cross-racial. Either basis would be unprecedented. If, as I prefer to believe, that is not what the majority intends, then I respectfully suggest that the entire discussion of the point is dictum.
I would affirm the judgment of the trial court.
. To see the third she had had to ”look[] up a little bit over [her] shoulder” as she struggled to keep her purse.