People v. Wright

MOSK, J.

I dissent.

I agree with the majority that the trial court erred in refusing to give an instruction focusing the jury’s attention on psychological factors that could have adversely affected the accuracy of the eyewitness identifications and hence could have given rise to a reasonable doubt of defendant’s guilt. Indeed, we said as much in People v. McDonald (1984) 37 Cal.3d 351, 377 [ 208 Cal.Rptr. 236 , 690 P.2d 709 , 46 A.L.R.4th 1011 ], footnote 24, and the cases there cited. But I strongly disagree with the majority’s further conclu *1155 sions (1) that the wording of the particular charge refused in this case—or of CALJIC No. 2.92—would have been adequate to satisfy defendant’s right to such an instruction, and (2) that the error in refusing to give a correct instruction on this topic was harmless.

I

Defendant’s requested instruction No. 3 purported to list the factors in the record that could have affected the accuracy of the eyewitness identifications. 1 The majority hold this instruction was adequate to the task, and that the court erred in refusing to give it. The instruction thus approved by the majority, however, was deficient in two respects.

First, it omitted a number of other relevant factors shown by the evidence. Perhaps most significant, the approved instruction was silent on the “cross-racial factor” that often operates when the witness and the offender are of different races. 2 In McDonald we explained the importance of this factor in detail. ( 37 Cal.3d at p. 368 .) When, as here, a defendant’s liberty turns wholly on cross-racial identifications, we should not approve a “factor” instruction that fails even to mention the cross-racial effect.

Other relevant factors are also missing from the instruction approved by the majority. Thus it did not discuss the familiarity effect, i.e., that an identification of a person whom the witness has had a prior opportunity to observe is more reliable than an identification of a stranger. Yet both kinds *1156 of identification were involved here: Janice Tong, who identified codefendant Wellington, had seen and spoken with him before the robbery, while none of the three witnesses who identified defendant had ever seen him before.

Nor did the approved instruction mention other factors we recognized in McDonald ( 37 Cal.3d at p. 368 ), e.g., that a witness may subconsciously incorporate into his memory post-event information—both correct and mistaken—acquired from other sources, such as descriptions by other witnesses or press reports of the event (see Loftus, Eyewitness Testimony (1979) pp. 54-87), or that the accuracy of the witness’s recall may be adversely affected by unconscious biases or cues in identification procedures and methods of questioning (id. at pp. 89-99).

As the majority acknowledge, we held in the leading case of People v. Hall (1980) 28 Cal.3d 143, 159 [ 167 Cal.Rptr. 844 , 616 P.2d 826 ], that when a defendant is entitled to an instruction on eyewitness identification factors, it is error for the court to refuse to cure defects in the charge requested—for example, that it is overinclusive or underinclusive—and simply give no such instruction at all. In Hall the requested charge was defective because it included factors not shown by the evidence; here, on the contrary, it was defective because it omitted factors that the record did support. Yet the duty of the trial court remained the same: People v. Coates (1984) 152 Cal.App.3d 665, 670-671 [ 199 Cal.Rptr. 675 ], held that the proffered instruction was defective because it failed to include an important factor shown by the evidence, “But the court, as Hall states, should have tailored the instruction by inserting the parts it believed should not have been omitted.” (Id. at p. 671.) The court’s failure to do so, Coates concluded, was reversible error.

Here defense counsel respectfully referred the trial court to the foregoing rule of case law, and begged the court to point out any perceived defects in the proposed instruction that could be cured by amendment; but the court refused to do so, erroneously denying that it had any responsibility in the matter. 3

*1157 The instruction approved by the majority was also deficient in a more fundamental respect: it merely listed the factors that it told the jurors they “should consider,” failing to inform them what effect any such factor may have on the accuracy of the eyewitness identifications in this case. The same defect appears in CALJIC No. 2.92, which the majority also approve (and quote in appendix): although it refers to more factors than defendant’s requested instruction No. 3, it too merely lists them with no explanation of their effect. And the majority expressly endorse this format: a proper instruction on eyewitness identification factors, say the majority, deals with the issue simply “by listing, in a neutral manner, the relevant factors supported by the evidence.” (Ante, p. 1141, italics added.)

I do not contend that every factor in the instruction must be explained to the jury: we may assume that from personal experience jurors know how an eyewitness identification can be adversely affected by the common circumstance, for example, that the lighting was dim or the witness was at some distance from the scene—or, as here, that the opportunity to observe was severely limited and the perpetrator was masked. Nor do I contend, contrary to the majority’s distortion of my views, that the jury should be instructed on any factor that is “a matter of ongoing scientific debate.” (Ante, p. 1143.) Indeed, I explain below that the CALJIC instruction approved by the majority is defective precisely because, inter alia, it encourages the jury to speculate on the highly debatable issue of the effect of “stress” on an eyewitness identification. And I there conclude, as the majority urge, that “Such an instruction should not take sides in an ongoing scientific controversy.” (Post, p. 1160.)

Nevertheless, there are a number of other factors—including some that are often crucial to the accuracy of the identification—that are not in dispute among behavioral scientists but may not be familiar to jurors. In addition to the foregoing more obvious circumstances, “other factors bearing on eyewitness identification may be known only to some jurors, or may be imperfectly understood by many, or may be contrary to the intuitive beliefs of most.” (People v. McDonald, supra, 37 Cal.3d at p. 368 .) Yet the same factors have been extensively studied by behavioral and social scientists, who have reported their methods, data, and conclusions in numerous books and articles published in the professional literature. (Id. at pp. 364-365.) After reviewing that literature in McDonald we concluded, “The consistency of the results of these studies is impressive, and the courts can *1158 no longer remain oblivious to their implications for the administration of justice.” (Id. at p. 365.)

The majority appear to deny there is any such consensus, but their denial is refuted by a reading of the treatises and articles we cite in McDonald (ibid.). The majority then claim that an instruction explaining the effect of unfamiliar but noncontroversial eyewitness identification factors “would of necessity adopt the views of certain experts and incorporate the results of certain psychological studies while discounting others.” (Ante, p. 1141, italics added.) But as to a number of important factors there simply are no significant “other” views or studies to “discount.” For example, I challenge the majority to cite a single reputable professional study that concludes there is no such thing as the cross-racial effect. (See Johnson, Cross-Racial Identification Errors in Criminal Cases (1984) 69 Cornell L.Rev. 934, 938-939 [citing 10 studies documenting the cross-racial effect].)

It was in large part because of this consistency in the results of current eyewitness identification studies that we held in McDonald that when such identification is both crucial and uncorroborated the defendant is entitled to introduce expert testimony on the factors shown by the record that could have affected the identification. ( 37 Cal.3d at p. 377 .) It is no great leap to now hold that in the absence of that testimony the jurors should be given an instruction, if requested, that not only tells them the bare name of each factor but also gives them some understanding of the specific effect of factors that are noncontroversial but nevertheless are not generally understood by laypersons. “If the instructions convey no data, telling jurors to ‘consider’ a factor they know nothing about may only confuse them.” (Johnson, op. cit. supra, 69 Cornell L.Rev. at p. 985.) Left to their own devices, the jurors will inevitably fall back on such sources as folk wisdom, private beliefs, or sheer speculation. Unfortunately, the effect of certain important psychological factors may be the exact opposite of what the average juror expects.

The defects in CALJIC No. 2.92 illustrate the risks all too well. For example, the instruction tells the jurors to consider “The cross-racial or ethnic nature of the identification,” but it gives them no further guidance on the topic. Yet there is more to be said. As we explained in McDonald ( 37 Cal.3d at p. 368 ), “To be sure, many jurors are likely to have some awareness of the fact that an eyewitness is more accurate in identifying a person of his own race than one of another race. [Citation.] But it appears that few jurors realize the pervasive and even paradoxical nature of this ‘own-race effect,’ information that has emerged from numerous empirical studies of the question. These studies establish that the effect is strongest when white witnesses attempt to recognize black subjects; in such circumstances ‘The *1159 impairment in ability to recognize black faces is substantial.’ ([Johnson, op. cit. supra, 69 Cornell L.Rev. at pp. 938-939.]) . . . The studies also reveal two aspects of the matter that will probably be contrary to most jurors’ intuitions: first, that white witnesses who are not racially prejudiced are just as likely to be mistaken in making a cross-racial identification as those who are prejudiced; and second, that white witnesses who have had considerable social contact with blacks may be no better at identifying them than those who have not. (Id. at pp. 943-944.) Finally, some jurors may deny the existence of the own-race effect in the misguided belief that it is merely a racist myth exemplified by the derogatory remark, ‘they all look alike to me,’ while others may believe in the reality of this effect but be reluctant to discuss it in deliberations for fear of being seen as bigots. (Id. at p. 969; see also Wells. A Reanalysis of the Expert Testimony Issue, in Eyewitness Testimony: Psychological Perspectives [Wells & Loftus, edits. (1984)], p. 309.)” (Fn. omitted.) The CALJIC instruction approved by the majority conveys none of this information whatever.

The same instruction also tells the jury, again without explanation, to consider “The extent to which the witness is either certain or uncertain of the identification.” This portion of the CALJIC charge is even more misleading. The average juror doubtless takes it as confirming the widespread lay belief that the more certain an eyewitness is of his identification, the more likely the identification is correct. Yet that belief is apparently mistaken: as we explained in McDonald ( 37 Cal.3d at p. 369 ), there is in fact a “lack of correlation between the degree of confidence an eyewitness expresses in his identification and the accuracy of that identification. Numerous investigations of this phenomenon have been conducted: the majority of recent studies have found no statistically significant correlation between confidence and accuracy, and in a number of instances the correlation is negative—i.e., the more certain the witness, the more likely he is mistaken. (Wells & Murray, Eyewitness Confidence, in Eyewitness Testimony: Psychological Perspectives, pp. 159-162.) Indeed, the closer a study comes to reproducing the circumstances of an actual criminal investigation, the lower is that correlation (id. at pp. 162-165), leading the cited authors to conclude that ‘the eyewitness accuracy-confidence relationship is weak under good laboratory conditions and functionally useless in forensically representative settings.’ (Id. at p. 165; see also Deffenbacher, Eyewitness Accuracy and Confidence: Can We Infer Anything about their Relationship? (1980) 4 Law & Human Behav. 243.) The average juror, however, remains unaware of these findings: ‘A number of researchers using a variety of methods have found that people intuitively believe that eyewitness confidence is a valid predictor of eyewitness accuracy.’ (Wells & Murray, supra, at p. 159, citing five recent studies.)” Thus rather than correcting this common misconception of jurors, the CALJIC instruction actually reinforces it.

*1160 In addition to being underinclusive, CALJIC No. 2.92 manages to be overinclusive. It directs the jury to consider “The stress, if any, to which the witness was subjected at the time of the observation.” Again the jury is left to speculate on what effect “stress” is supposed to have on an eyewitness who is also a victim. On this question, however, there is no consensus among laymen. Some jurors may assume that the more stress an eyewitness is under, the more likely his identification is correct—believing that the stress focuses the witness’s attention on the details of the scene and particularly on the identity of his assailant. The view is typified by victims who remark, “I’ll never forget that face.” But other jurors may assume the exact opposite, i.e., that greater stress means poorer identification, believing that an eyewitness in fear of life or limb focuses his attention instead on how serious is the threat against him and how he can escape from it. This view is typified by victims who remark, “I couldn’t take my eyes off his gun.” Indeed, several eyewitnesses in the case at bar testified to precisely that effect.

Not only do laymen not agree on the effect of stress on eyewitness identification—behavioral scientists do not agree either. A recent review of the relevant literature disclosed nine studies suggesting that stress improves (or at least does not worsen) eyewitness accuracy, and ten suggesting the contrary. (Egeth & McCloskey, Expert Testimony about Eyewitness Behavior: Is it Safe and Effective? in Eyewitness Testimony: Psychological Perspectives, supra, p. 297.) Some researchers believe that both effects occur, depending on the level of stress: under this view—termed the “Yerkes-Dodson law”— mild stress increases eyewitness accuracy while severe stress decreases it. (See, e.g., Loftus, Eyewitness Testimony, supra, pp. 33-36.) But even if the “Yerkes-Dodson law” were as undisputed as the law of gravity, few if any jurors know of it. And it is far from undisputed: other researchers find no empirical evidence to support this “law” (Egeth & McCloskey, op. cit. supra, at p. 297), and question whether it applies outside the laboratory (Yarmey, The Psychology of Eyewitness Testimony (1979) p. 52).

The fact that the experts disagree on the existence and effect of a “stress factor” does not mean, of course, that it should not be the subject of expert testimony (McDonald, 37 Cal.3d at p. 369, fn. 15 ); but it does mean that this factor should be omitted from any instruction—like CALJIC No. 2.92— that advises juries of the factors they may consider in the absence of such testimony. Such an instruction should not take sides in an ongoing scientific controversy. 4

*1161 II

I further disagree with the majority’s conclusion that the error in refusing to give a correct instruction on the factors affecting the eyewitness identifications was harmless on the record of this case. The majority offer three reasons why the error is allegedly not reversible, but none is convincing.

A.

The majority begin by asserting that the evidence was sufficient to support the verdict, and stress that defendant does not contend it was insufficient. (Ante, p. 1145 & fn. 17.) This is strange reasoning indeed. It implies that after a trial in which there was instructional error the judgment will be affirmed on appeal unless the defendant also contends—and a reviewing court also holds—that the evidence of guilt is insufficient as a matter of law. Such a rule would obviously be both unprecedented and indefensible.

Perhaps the majority is simply attempting to portray the prosecution case in the best possible light. Yet the effort founders on the reality of the trial. The majority emphasize that “three of the eleven victims identified defendant as one of the robbers.” (Id. at p. 1145.) Of course, this means that eight of the eleven victims could not identify him, and the fact that more than three-quarters of the eyewitnesses were unable to identify defendant underscores the weakness of the prosecution case. The majority seek to explain away this weakness by asserting that the latter eight witnesses were “for the most part unable to describe the faces of any of the robbers.” (Ibid., italics in original.) But why were they unable to do so? Not because of any particularity of these eight witnesses, but because the circumstances of the crime made an identification by any witness extremely difficult. Yet these circumstances affected the three witnesses who purported to identify defendant no less than the eight who could not.

The majority also reason that “Although there was no evidence corroborating the eyewitness identifications, neither did any eyewitness testify at trial that defendant was not one of the robbers.” (Ibid., italics added and *1162 deleted.) This is a non sequitur: the fact that no witness said defendant was not among the robbers does not detract in the slightest from the fact that the only evidence connecting him with the crime was the uncorroborated eyewitness testimony. The two facts are as unrelated as the proverbial apples and oranges.

The majority also exaggerate the importance of the fact that no witness testified defendant was not among the robbers. The majority note that such testimony appeared in McDonald (37 Cal.3d at pp. 358-359) and in People v. West (1983) 139 Cal.App.3d 606, 608 [ 189 Cal.Rptr. 36 ], and jump to the conclusion that “On this basis” the case at bar is distinguishable from McDonald and West . But a fair reading of the latter opinions shows they cannot be dismissed so easily: in McDonald we list the exculpatory testimony as only one circumstance among several that support our conclusion of prejudice ( 37 Cal.3d at p. 376 ), and most of the other circumstances—e.g., the absence of any other evidence connecting the defendant with the crime, the weaknesses in the prosecution eyewitness testimony—are also present in the case at bar. The same is true of West ( 139 Cal.App.3d at p. 610 ). And the majority ignore other decisions closely similar to McDonald and West in which there was no testimony whatever that the defendant was not the criminal, yet which nevertheless found prejudice. (People v. Coates, supra, 152 Cal.App.3d 665, 671-672 ; People v. Palmer, supra, 154 Cal.App.3d 79, 89 .) Clearly such exculpatory testimony is not a prerequisite to prejudice.

Finally, the majority assert that in their opinion the defense put on by defendant was “not strong” and could have been “discounted” by the jury. (Ante, p. 1145.) The majority seem concerned that the defense was alibi and the two witnesses who presented it were related to defendant; but likewise in McDonald the defense was alibi, and four of the six witnesses who presented it were also related to the defendant. On the basis of the cold record the defense in the case at bar is no less credible than the McDonald alibi, and it is for the jury rather than this court to decide whether to believe it.

B.

The second justification offered by the majority for their conclusion that the error here was harmless is that the factors omitted from the instructions were nevertheless “put before the jury” by cross-examination, closing arguments, and other instructions. (Ante, p. 1146.) Again reality is otherwise. As explained in a major review of this issue, “Cross-examination and closing arguments of counsel . . . inadequately protect criminal defendants from misidentification in cases in which eyewitness identification testimony is important. Concededly, counsel may successfully expose and emphasize factors suggesting that a particular eyewitness’ identification is unreliable. *1163 Jurors, however, are aware that the defense attorney, as adversary, is obligated to defend his client vigorously. For this reason, the jury is likely to discount any attacks the defense makes on the reliability of an identification as being motivated by his partisan desire to win. In addition, the generally acknowledged natural inclination of jurors to afford great credence to eyewitness identifications also diminishes the effectiveness of cross-examination and closing arguments in minimizing the risks of misidentification. Because the trial judge is a neutral officer of the court, a jury is likely to be more receptive to his nonpartisan instructions which enumerate the factors that tend to render an eyewitness identification unreliable.” (Fns. omitted.) (Note, Eyewitness Identification Testimony and the Need for Cautionary Jury Instructions in Criminal Cases (1983) 60 Wash.U.L.Q. 1387, 1422-1423.)

Nor do cross-examination and argument miraculously become adequate for this purpose, as the majority claim, when they are viewed in combination with general instructions on how the jury should weigh the testimony of any witness (CALJIC Nos. 2.20, 2.21, and 2.81), on proof beyond a reasonable doubt (CALJIC No. 2.91), and on alibi (CALJIC No. 4.50). It was precisely the insufficiency of such general instructions in this context that led our courts to hold in People v. Hall, supra, 28 Cal.3d 143, 159-160 , and its progeny, that a defendant is entitled to a specific instruction on psychological factors affecting eyewitness identifications. When insufficient general instructions are added to ineffective remarks of counsel, the result is still inadequacy: zero plus zero equals zero.

C.

The majority’s final argument against prejudice is also their weakest: they rely on the fact that the jury did not ask that any testimony be reread or any instruction be clarified, and deliberated less than one day before finding defendant guilty. It is true that in McDonald ( 37 Cal.3d at p. 376, fn. 23 ) the jury took longer to convict, and that in People v. West, supra, 139 Cal.App.3d 606, 610 , and People v. Coates, supra, 152 Cal.App.3d 665, 672 , the jury asked for a rereading of certain testimony and instructions. But in each case there was ample other evidence pointing to prejudice, and the procedural facts now relied on by the majority were mentioned largely as makeweights; indeed, in McDonald we relegated the entire discussion to a footnote. Again, therefore, the majority overstate the point. As with their observation that defendant does not claim insufficiency of the evidence, so here: the majority imply that a judgment will be affirmed on appeal despite instructional error unless the jury asked for a rereading of testimony or instructions or deliberated for longer than an unspecified minimum time. *1164 Surely this would be an unprecedented and indefensible rule of appellate review.

The majority also stress that the jury did ask for a rereading of the testimony relating to codefendant Wellington, and was unable to reach a verdict as to him; the majority assert that the evidence against Wellington was also “limited to eyewitness identification,” and conclude that the difference in outcome means the jury “thoughtfully considered” all the identification evidence against both defendants. (Ante, p. 1150.)

Here lies the ultimate irony in this troubling case. Although the evidence against Wellington was eyewitness identification testimony, it was stronger on several grounds than the eyewitness identification testimony against defendant. Wellington was identified at trial by Janice Tong, wife of a police officer. First, as opposed to most of the other witnesses Tong had ample opportunity to observe Wellington during the robbery. From her position she had a clear view of him, and testified that she watched him for “90 percent of the time” that the robbers were in the office, seeing his face from several angles. On three occasions he heard her move, looked directly at her, and ordered her to keep still. Later he came over to her, took her purse and emptied it on the floor, pocketing some of its contents. She explained to the jury that she could make out Wellington’s features because his stocking mask was not tight-fitting and only his nose was slightly flattened; she also described his clothes in detail.

Second, following the crime Tong gave the investigating officers a description of Wellington, then selected his picture from a photographic array and picked him out of a lineup. She concluded by testifying that she had “no doubt” whatever that Wellington was one of the robbers.

Third and most important, Tong was the only witness who had previously seen one of the robbers when he was not wearing a mask. She testified that about one week before the robbery Wellington appeared unannounced in an area of the office reserved for employees; she accosted him and inquired if he needed help; he asked her for a job application, and left. He was, moreover, wearing the same clothes that he wore in the robbery.

None of the foregoing was true as to defendant—yet defendant was convicted while Wellington was not. Contrary to the majority’s conclusion, this difference in outcome strongly suggests that the jury did not “thoughtfully consider” the eyewitness identification testimony, and that it needed instructional assistance from the court in doing so.

We declared in McDonald, 37 Cal.3d at page 376 , that “An error that impairs the jury’s determination of an issue that is both critical and closely *1165 balanced will rarely be harmless.” This is such an error. Here, as in West, supra, 139 Cal.App.3d 606 , Coates, supra, 152 Cal.App.3d 665 , Palmer, supra, 154 Cal.App.3d 79 , and McDonald, supra, 37 Cal.3d 351 , identity was the sole issue at trial and the only evidence connecting defendant with the crime was the eyewitness identification testimony. Also as in those cases, the record discloses a number of factors that could have raised reasonable doubts as to the accuracy of the identifications: the events were sudden and unexpected; defendant was a stranger to the witnesses; their opportunity to observe was brief and discontinuous; their view of the robbers’ faces was seriously impaired by the fact that all wore stocking masks and took pains to prevent the witnesses from looking at them; most of the witnesses were unable to identify defendant either after the crime or at trial; the three witnesses who did identify him were each of a different race from defendant; they also admitted they were afraid during the encounter, they had varying degrees of difficulty in identifying defendant from photographs or in lineups, and in fact they made several misidentifications.

In these circumstances it is reasonably probable that the admitted error in the eyewitness identification instructions contributed to the verdict and resulted in a miscarriage of justice. Defendant is entitled to a new trial on correct instructions.

Broussard, J., concurred.

Appendix

CALJIC NO. 2.92 Factors to Consider in Proving Identity by Eyewitness Testimony

Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as *1166 well as other factors which bear upon the accuracy of the witness’ identification of the defendant, including, but not limited to, any of the following:

[The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;]

[The stress, if any, to which the witness was subjected at the time of the observation;]

[The witness’ ability, following the observation, to provide a description of the perpetrator of the act;]

[The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;]

[The cross-racial or ethnic nature of the identification;]

[The witness’ capacity to make an identification;]

[Evidence relating to the witness’ ability to identify other alleged perpetrators of the criminal act;] I

[Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;]

[The period of time between the alleged criminal act and the witness’ identification;] [Whether the witness had prior contacts with the alleged perpetrator;]

[The extent to which the witness is either certain or uncertain of the identification;] [Whether the witness’ identification is in fact the product of his own recollection;]

Any other evidence relating to the witness’ ability to make an identification.

As requested by defendant, the instruction reads: “Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

“In evaluating the identification testimony of a witness, you should consider the following:

“1. The circumstances under which the original observation was made, including: the witness’s ability to observe when considering lighting and obstructions, if any; the length of time the witness had to make the original observation; whether or not the witness was under stress at the time of the observation; and any other circumstances which you find from the evidence;

“2. The circumstances of the subsequent identification, including whether or not the identification was the product of the witness’s own independent recollection, and the strength of that identification; and

“3. Any occasions on which the witness failed to make an identification of the defendant or made an identification inconsistent with his or her identification at trial.”

While conceding that all the robbers were Black, the majority seem reluctant to admit that the witnesses who identified defendant were not, saying only that the record does not “explicitly state” the races of the latter. (Ante, p. 1148, fn. 21.) We may fairly infer, however, that Stephanie Sung—like her coworkers Janice Tong and Viola and Sharon Horn—was of Asian descent, Peter Marino of Italian, and Erica Albertsen of Scandinavian. In any event, defendant would have been entitled to an instruction on the cross-racial factor unless all three of these witnesses were Black (see People v. Palmer (1984) 154 Cal.App.3d 79, 86, fn. 7 [ 203 Cal.Rptr. 474 ]), a possibility so remote as to be negligible.

After the court ruled it would not give any of defendant’s special instructions, the following colloquy took place:

“[By defense counsel] I would ask the Court and invite the Court and Your Honor, if you have—if you think that there is some grammatical or wording or issue with any of these instructions, or if you think that there is a way that we could discuss them in detail and make some alterations, if you have specific objection to any of them, I would ask that we do that. [10 I don’t want to have the proposed instructions not given by the Court when there is some possibility that they could be revised in consultation in a way that the Court would feel would be appropriate, and that type of revision is something that’s also discussed at some length in these cases, that the Court may have to make some changes in proposed instructions as *1157 opposed to just refusing to give proposed instructions altogether, so I would invite the Court and request the Court’s guidance in making alterations of that nature that may be required.

“The Court: All right. Well, I am going to deny the instructions. I don’t feel it’s my responsibility to prepare instructions for any counsel in the case.”

CALJIC No. 2.92 also errs by telling the jury to consider not only the cross-racial effect but also the “ethnic nature” of the identification. The latter category was an invention of the CALJIC drafters: although the Use Note to instruction No. 2.92 claims it “is based upon People v. West, 139 Cal.App.3d 606 [ 189 Cal.Rptr. 36 ] . . . and People v. Palmer, 154 *1161 Cal.App.3d 79 [ 203 Cal.Rptr. 474 ],” neither West, nor Palmer , nor any other reported decision contains any mention of an “ethnic” or “cross-ethnic” eyewitness identification factor. None of the studies we cited in McDonald recognize such a factor, and I know of no other studies recognizing it after that decision. Nor is this silence surprising: the vogue word “ethnic” is so broad—referring variously to racial, cultural, geographic, linguistic, religious, national, or other groupings, or any combination thereof—that it defies both controlled scientific study and consistent juror application: what may be a “cross-ethnic” identification to one juror may not be to another. The term therefore has no place in CALJIC No. 2.92.