The debate among researchers did not prevent the Supreme Court of the United States, in the famous school desegregation case of Brown v. Board of Education of Topeka, 347 U.S. 483, 494 n.11, 74 S. Ct. 686, 692 n.11, 98 L. Ed. 837 (1954), from using behavioral and social sciences to support legal conclusions without requiring that the methodology employed by those scientists have general acceptance in the scientific community. The ultimate holding in Brown that segregation is harmful "was not only a nomological statement but a sociological observation as well." Paul L. Rosen, The Supreme Court and Social Science ix (1972). The Court's finding that segregation was harmful "was not based simply on [intuition] or common-sense, . . . [but] was attributed to . . . seven social science studies." Id. at x. The extralegal facts contained in the social science studies conducted by Dr. Kenneth B. Clark and others were presented to the Court in the form of a "Brandeis Brief." That characterization is derived from a brief first submitted by Louis D. Brandeis (later Justice Brandeis) in the case of Muller v. Oregon, 208 U.S. 412, 419-20, 28 S. Ct. 324, 325-26, 52 L. Ed. 551 (1908). Thus, Brown v. Board of Education is the prototypical example of an appellate court using modern social and behavioral sciences as legislative evidence to support its choice of a rule of law. John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating and Establishing Social Science in Law, 134 U. Pa. L. Rev. 477, 484 (1986).
    In United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), Chief Judge Bazelon urged in his concurring opinion that juries be charged on the pitfalls of cross-racial identification. He believed that the cross-racial nature of an identification could affect accuracy in the same way as proximity to the perpetrator and poor lighting conditions. Id. at 559. He felt that a meaningful jury instruction would have to apprise jurors of that fact. To achieve that objective, Judge Bazelon proposed the following instruction:
        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.
        [Id. at 561 (Bazelon, C.J., concurring).]

    Judge Bazelon rejected the notion that instructions on interracial identifications "appeal to racial prejudice." Id. at 560. Rather, he believed that an explicit jury instruction would safeguard against improper uses of race by the jury and would delineate the narrow context in which it is appropriate to consider racial differences. Id. at 559-61.
    Four years later, Judge McCree, who later became Solicitor General, in United States v. Russell, 532 F.2d 1063, 1066 (6th Cir. 1976), also acknowledged the existence of problems related to eyewitness identification. He observed:
        There is a great potential for misidentification when a witness identifies a stranger based solely upon a single brief observation, and this risk is increased when the observation was made at a time of stress or excitement. . . . This problem is important because of all the evidence that may be presented to a jury, a witness' [sic] in-court statement that "he is the one" is probably the most dramatic and persuasive.
        [Id. at 1066-67.]

    A year later in United States v. Smith, 563 F.2d 1361 (9th Cir. 1977), Judge Hufstedler stated that the reliability of a single eyewitness identification is "at best, highly dubious, given the extensive empirical evidence that eyewitness identifications are not reliable." Id. at 1365 (Hufstedler, J., concurring). Judge Hufstedler drew support from Judge Bazelon's suggestion in United States v. Brown, 461 F.2d 134 (D.C. Cir. 1972), that courts inform themselves of the results of scientific studies relative to the reliability problems of eyewitness identifications. Id. at 145-46 & n.1 (Bazelon, C.J., concurring and dissenting); see also David L. Bazelon, Eyewitless News, Psychology Today, March 1980, at 102.
    One year after Smith was decided, the Second Circuit observed that "[c]enturies of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect. Of all the various kinds of evidence it is the least reliable, especially where unsupported by corroborating evidence." Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir. 1978).
    The Supreme Court of the United States has acknowledged that problems exist with eyewitness identifications in general and cross-racial identifications in particular. The Court has stated that "[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 1933, 18 L. Ed.2d 1149 (1967). The Court has also noted "the high incidence of miscarriage[s] of justice" caused by such misidentifications and that even uncontradicted
        "identification of strangers [by eyewitnesses] is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent--not due to the brutalities of ancient criminal procedure."
        [Ibid. (quoting Felix Frankfurter, The Case of Sacco and Vanzetti 30 (1927)).]

Ten years after Wade was decided, the Supreme Court suggested that an eyewitness identification was more reliable when made by a member of the defendant's own race. Manson v. Brathwaite, 432 U.S. 98, 115, 97 S. Ct. 2243, 2253, 53 L. Ed.2d 140 (1977).

    Although there have been no reported decisions in our own State addressing the propriety of requiring a cross-racial identification jury instruction, decisions have been rendered by courts in other jurisdictions. The majority of courts allowing cross-racial identification charges hold that the decision to provide the instruction is a matter within the trial judge's discretion. Omission of such a cautionary instruction has been held to be prejudicial error where identification is the critical or central issue in the case, there is no corroborating evidence, and the circumstances of the case raise doubts concerning the reliability of the identification.  See United States v. Thompson, 31 M.J. 125 (C.M.A. 1990) (calling for cross-racial identification instruction when requested by counsel and when cross-racial identification is a "primary issue"); People v. Wright, 755 P.2d 1049 (Cal. 1988); People v. West, 189 Cal. Rptr. 36, 38-39 (Ct. App. 1983); Commonwealth v. Hyatt, 647 N.E.2d 1168 (Mass. 1995); State v. Long, 721 P.2d 483 (Utah 1986).See footnote 1
    In People v. Palmer, 203 Cal. Rptr. 474 (Ct. App. 1984), for example, the defendant was convicted of robbery based solely on the robbery victims' testimony. Id. at 476. There was no physical or circumstantial corroborating evidence, the victims' contacts were brief, some of the victims could not identify defendant at a line-up, and none told police that the robber wore braces. Ibid. The court held that the defendant was entitled to a specific instruction on the inaccuracies of cross-racial identification because the only evidence against the defendant consisted of the victims' identifications, the accuracy of which was the sole issue in the case, and the evidence was conflicting. Ibid. Cf. People v. Harris, 767 P.2d 619 (Cal. 1989) (finding harmless error in excluding special instruction on cross-racial identification where there was substantial evidence to corroborate the identifications, including eyewitness testimony and extrajudicial admissions by defendant himself).
    Courts typically have refused the instruction where the eyewitness or victim had an adequate opportunity to observe the defendant, there was corroborating evidence bolstering the identification, and/or there was no evidence that race affected the identification. See Hyatt, supra, 647 N.E. 2d at 1171 (declining instruction in rape and robbery case where victim was terrorized for fifteen to twenty minutes in broad daylight and could see the attacker's face); see also Commonwealth v. Engram, 686 N.E.2d 1080 (Mass. App. Ct. 1997) (declining instruction where numerous eyewitnesses saw defendant at close range and positively identified him from a line-up and photo array).
    A number of courts have concluded that cross-racial identification simply is not an appropriate topic for jury instruction. See State v. Willis, 731 P.2d 287, 292-93 (Kan. 1987); Hyatt, supra, 647 N.E. 2d at 1171; People v. McDaniel, 630 N.Y.S.2d 112, 113 (App. Div.), appeal denied, 661 N.E.2d 1389 (N.Y. 1995). Those courts have determined that the cross-racial instruction requires expert guidance, and that cross-examination and summation are adequate safeguards to highlight unreliable identifications.
    Other jurisdictions have denied the instruction, finding that the results of empirical studies on cross-racial identification are questionable. See Telfaire, supra, 469 F. 2d at 561-62 (Leventhal, J., concurring) (rejecting cross-racial instruction because data supporting hypothesis is "meager"); People v. Bias, 475 N.E.2d 253, 257 (Ill. App. Ct. 1985) (rejecting instruction in robbery case where eyewitness failed to describe key distinguishing facial features and gave inconsistent descriptions because empirical studies are not unanimous). One jurisdiction has even rejected cross-racial identification instructions as improper commentary on "the nature and quality" of the evidence. See State v. Hadrick, 523 A.2d 441, 444 (R.I. 1987) (rejecting such instruction in robbery case where victim viewed perpetrator for two to three minutes at close range during robbery and identified him from a line-up).

    The defense in the present case did not question whether the victim had been sexually assaulted. Rather, the defense asserted that the victim's identification of defendant as the perpetrator was mistaken. It is well-established in this State that when identification is a critical issue in the case, the trial court is obligated to give the jury a discrete and specific instruction that provides appropriate guidelines to focus the jury's attention on how to analyze and consider the trustworthiness of eyewitness identification. State v. Green, 86 N.J. 281, 292 (1981); State v. Melvin, 65 N.J. 1, 18 (1974); State v. Middleton, 299 N.J. Super. 22, 32 (App. Div. 1997); State v. Frey, 194 N.J. Super. 326, 329-30 (App. Div. 1984).
    Green requires that as a part of an identification charge a trial court inform the jury that the State's case relies on an eyewitness identification of the defendant as the perpetrator, and that in weighing the reliability of that identification the jury should consider, among other things, "the capacity or the ability of the witness to make observations or perceptions . . . at the time and under all of the attendant circumstances for seeing that which he says he saw or that which he says he perceived with regard to his identification." 86 N.J. at 293-94. What defendant sought through the requested charge in the present case was an instruction that informed the jury that it could consider the fact that the victim made a cross-racial identification as part of the "attendant circumstances" when evaluating the reliability of the eyewitness identification.
    The Court-appointed Task Force discussed and debated the issue of the need for a cross-racial and cross-ethnic identification jury instruction for more than five years. That Task Force was comprised of an appellate judge, trial judges, lawyers representing both the prosecution and defense, social scientists, and ordinary citizens. Professional consultants to the Task Force included Dr. Howard F. Taylor, Professor, Princeton University; Dr. William J. Chambliss, Professor, George Washington University; and Dr. Kenneth B. Clark, Distinguished Professor of Psychology Emeritus, City University of New York, who was prominently associated with the behavioral science studies submitted to the Supreme Court in Brown v. Board of Education. Task Force sessions were conducted in much the same way as legislative committees conduct hearings on proposed legislation. The Task Force consulted a substantial body of professional literature in the behavioral and social sciences concerning the reliability of cross-racial identifications. Except for the view expressed by a county prosecutor, the Task Force was unanimously convinced that a problem exists respecting cross-racial identifications and that the Court should take corrective action. Ultimately, in 1992 the Task Force submitted its final report to the Court in which it recommended, among other things, that the Court develop a special jury charge regarding the unreliability of cross-racial identifications.
    The Court referred that recommendation to the Criminal Practice Committee. The Criminal Practice Committee reviewed the recommendation and concluded that the current charge on identification should be revised to include a statement on cross-racial identification. The Criminal Practice Committee has proposed the following charge:
        You know that the identifying witness is of a different race than the defendant. When a witness, who is a member of one race, identifies a defendant, who is a member of another race, we say that there has been a cross-racial identification. You may consider, if you think it is appropriate to do so, whether the cross-racial nature of the identification has affected the accuracy of the witness' [sic] original perception and/or the accuracy of the subsequent identification(s).

The Criminal Practice Committee has submitted that proposed charge to the Model Jury Charge Committee for its review. That Committee is withholding further consideration of the proposed charge pending the Court's decision in the present case.

    We reject the State's contention that we should not require a cross-racial identification charge before it has been demonstrated that there is substantial agreement in the relevant scientific community that cross-racial recognition impairment is significant enough to support the need for such a charge. This case does not concern the introduction of scientific evidence to attack the reliability of the eyewitness's identification. Defendant's requested jury instruction was not based upon any "scientific, technical, or other specialized knowledge" to assist the jury. N.J.R.E. 702. He relied instead on ordinary human experience and the legislative-type findings of the Task Force because the basis for his request did not involve a matter that was beyond the ken of the average juror.
    This case requires us to focus on the well-established differences between adjudicative or hard evidence, argument, and jury instructions. The hard evidence revealed a cross-racial identification and the circumstances under which that identification was made. The State argued to the jury that the identification was credible based on the evidence. Counsel for defendant, on the other hand, argued that there was a mistaken identification based on the totality of the circumstances. Defendant requested a cross-racial identification jury instruction that would treat the racial character of the eyewitness identification as one of the factors bearing on its reliability in much the same way as lighting and proximity to the perpetrator at the time of the offense.
    A national review of the use of cross-racial identification jury instructions reveals that only a small minority of jurisdictions have declined such an instruction because studies finding unreliability in cross-racial identifications lack general acceptance in the relevant scientific community. The majority of jurisdictions that have rejected the instruction did so based on judicial discretion. Those discretionary rulings were influenced by factors such as the nature and quality of the eyewitness identification, the existence of strong corroborating evidence, the fact that the eyewitness had an adequate opportunity to observe the perpetrator, or a combination of those reasons.
    Consistent with Brown, Wade and Manson; the admonitions expressed by Justice Frankfurter, Judge Bazelon in Telfaire and Brown, Judge McCree in Russell, and Judge Hufstedler in Smith; the California cases of McDonald, Wright and West; our own requirement in Green that a proper identification jury instruction be given when that issue is critical in the case; the Task Force Report; and our review of the professional literature of the behavioral and social sciences, we hold that a cross-racial identification, as a subset of eyewitness identification, requires a special jury instruction in an appropriate case.
    Indeed, some courtroom observers have commented that the ordinary person's difficulty of "cross-racial recognition is so commonplace as to be the subject of both cliche and joke: 'they all look alike.'" Johnson, supra, 69 Cornell L. Rev. at 942. Although laboratory studies concerning the reliability of cross-racial identifications have not been validated in actual courtroom atmospheres, the results of many of those experiments suggest that "decreased accuracy in the recognition of other-race faces is not within the observer's conscious control, and that seriousness of criminal proceedings would not improve accuracy." Ibid. Moreover, the stress associated with the courtroom atmosphere, based on human experience, is likely to diminish rather than enhance recognition accuracy.
    We embrace the California rule requiring a cross-racial identification charge under the circumstances of this case despite some differences of opinion among the researchers. Notwithstanding those differences, there is an impressive consistency in results showing that problems exist with cross-racial eyewitness identification. McDonald, supra, 690 P. 2d at 718. We conclude that the empirical data encapsulate much of the ordinary human experience and provide an appropriate frame of reference for requiring a cross-racial identification jury instruction. Under the jurisprudence of this Court, in a prosecution "in which race by definition is a patent factor[, race] must be taken into account to assure a fair trial." State v. Harris, 156 N.J. 122, 235 (1998) (Handler, J., dissenting).
    At the same time, we recognize that unrestricted use of cross-racial identification instructions could be counter-productive. Consequently, care must be taken to insulate criminal trials from base appeals to racial prejudice. An appropriate jury instruction should carefully delineate the context in which the jury is permitted to consider racial differences. The simple fact pattern of a white victim of a violent crime at the hands of a black assailant would not automatically give rise to the need for a cross-racial identification charge. More is required.
    A cross-racial instruction should be given only when, as in the present case, identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability. Here, the eyewitness identification was critical; yet it was not corroborated by any forensic evidence or other eyewitness account. The circumstances of the case raise some doubt concerning the reliability of the victim's identification in that no positive identification was made for nearly eight months despite attempts within the first five days following the commission of the offenses. Under those circumstances, turning over to the jury the vital question of the reliability of that identification without acquainting the jury with the potential risks associated with such identifications could have affected the jurors' ability to evaluate the reliability of the identification. We conclude, therefore, that it was reversible error not to have given an instruction that informed the jury about the possible significance of the cross-racial identification factor, a factor the jury can observe in many cases with its own eyes, in determining the critical issue--the accuracy of the identification.
    For the sake of clarity, we repeat that the purpose of a cross-racial instruction is to alert the jury through a cautionary instruction that it should pay close attention to a possible influence of race. Because of the "widely held commonsense view that members of one race have greater difficulty in accurately identifying members of a different race," Telfaire, supra, 469 F. 2d at 559 (Bazelon, C.J., concurring); Brown, supra, 461 F. 2d at 134, expert testimony on this issue would not assist a jury, N.J.R.E. 702, and for that reason would be inadmissible. We request the Criminal Practice Committee and the Model Jury Charge Committee to revise the current charge on identification to include an appropriate statement on cross-racial eyewitness identification that is consistent with this opinion.
    The judgment of the Appellate Division is reversed. The case is remanded to the Law Division for a new trial.

    CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, and STEIN join in JUSTICE COLEMAN's opinion. JUSTICE HANDLER did not participate.

NO. A-166 SEPTEMBER TERM 1997
ON APPEAL FROM Appellate Division, Superior Court
                    and
ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

        v.

MCKINLEY CROMEDY, a/k/a DADDY,
MAC, FLAVOR, CROMEDY MCKINLEY,
MCKINLEY ANDREW CROMEDY,
MACKAY CROMEDY, MCKINLEY
CROMEDY, III and REHEM CROMEDY,

    Defendant-Appellant.

DECIDED April 14, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY DISSENTING OPINION BY

Footnote: 1 It is possible that other jurisdictions allow the jury to be charged on cross-racial identification. Because the issue arises on appeal only in cases where the judge refuses to give the instruction, it is difficult to determine how often such an instruction is given.