Alturo Juan Pasco appeals from his conviction for armed robbery. His sole argument is that the trial court, in giving the pattern charge on eyewitness identification, erroneously included language that one factor to be considered by the jury in assessing the reliability of the identification is the level of certainty shown by the witness about his or her identification. The state concedes that under the authority of Brodes v. State ,1 the trial court’s inclusion of the “level of certainty” language in the charge was erroneous. But, the state argues, the error was harmless in light of all the evidence of Pasco’s guilt. We agree with the state’s argument and thus affirm Pasco’s conviction. In Brodes , the Supreme Court disapproved of the “level of certainty” jury instruction. In light of the scientifically-documented lack of correlation between a witness’s certainty in his or her identification of someone as the perpetrator of a crime and the accuracy of that identification, and the critical importance of accurate jury instructions as “the lamp to guide the jury’s feet in journeying through the testimony in search of a legal verdict,” we can no longer endorse an instruction authorizing jurors to consider the witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification. Accordingly, we advise trial courts to refrain from informing jurors they may consider a witness’s level of certainty when instructing them on the factors that may be considered in deciding the reliability of that identification.2 The Supreme Court went on to hold that the trial court’s giving of the “level of certainty” charge in Brodes was harmful error because the only evidence connecting the defendant to the crimes in question was his identification by two victims, one of whom was unable to pick him out of a photo array, while the other was unable to describe any physical characteristics of the perpetrator.3
The instant case, however, is materially distinguishable from Brodes . Here, the victim testified that at approximately 2:35 one morning she was working in a convenience store when a man came to the window with a gun. The man put a bag over the hand with which he was holding the gun, threatened to shoot her and demanded money. She gave him approximately $100 from the cash register, and then saw the man get into a red car and drive away.
