Return to CALJIC Part 1-2 – Contents
F 2.16 n1 Dog Tracking Evidence: Alternative Form.
In its Jan. 1994 pocket part, CALJIC adopted the instruction approved in People v. Malgren (83) 139 CA3d 234, 240-42 [188 CR 569], regarding proof of identity by dog tracking evidence. However, the FORECITE dog tracking instruction (FORECITE F 2.92c), which is based on People v. Gonzales (90) 218 CA3d 403, 407 [267 CR 138], more specifically alerts the jury to the considerations affecting the weight of such evidence. Moreover, the corroboration requirement of the new CALJIC instruction simply requires evidence which “supports the accuracy of the identification of the defendant as the perpetrator of the crime ….” This does not accurately state the corroboration requirement which requires that the evidence “support the accuracy of the tracking itself.” (People v. Gonzales 218 CA3d at 414.)
RESEARCH NOTES: See Annotation, Evidence of trailing by dogs in criminal cases, 18 ALR3d 1221 and Later Case Service.
F 2.16 n2 Dog Tracking Instruction: Inapplicable To Dog Sniffing.
People v. Mitchell (94) 30 CA4th 783, 807 [36 CR2d 150] held that the trial court does not have a sua sponte obligation to instruct upon the weight to be given to “dog tracking” evidence when the dog was not used to track but rather to alert the police to evidence by smell.
F 2.16 n3 Dog Scent Identification and Scent Transfer Unit (STU) Evidence: Subject To Kelly Rule Analysis.
In People v. Willis (2004) 115 CA4th 379 the defendant’s pretrial motion to exclude all dog scent and scent transfer unit (STU) evidence was denied. The appellate court held that the STU was a novel device used in the furtherance of a new technique and, therefore, was subject to a Kelly [People v. Kelly (76) 17 C3d 24] rule analysis. The dog handler who testified about the STU and the dog scent identification was not a scientist or engineer and, therefore, was not qualified to testify about the characteristics of the STU or its acceptance in the scientific community. There was also a foundational weakness in the dog identification evidence, because there was no evidence on things such as how long a scent remained on an object or at a location, whether every person’s scent was unique, and the adequacy of the certification procedures for scent identification. (See also People v. Mitchell (2003) 110 CA4th 772, 789.) The court also discussed the difference between dog scent and dog tracking evidence. (Willis, 115 CA4th at 386.)
See also FORECITE F 2.16a [Dog Tracking Identification: Use Of Scent Transfer Unit].
F 2.16a
Dog Tracking Identification:
Use Of Scent Transfer Unit
*Modify CJ 2.16 to provide as follows [added/modified language is underlined]:
Dog scent discrimination evidence has been received for the purpose of showing, if it does, that the defendant is the perpetrator of the crime charged in this case. This evidence is not by itself sufficient to permit an inference that the defendant is guilty of the crime charged. The dog scent discrimination evidence must be corroborated by other evidence tending to connect the defendant with the commission of the charged crime.
In determining the accuracy of the dog scent discrimination evidence and the weight to give this type of evidence, you should consider the training, proficiency, experience and proven ability, if any, of the dog, its trainer and its handler, the manner and circumstances surrounding the collection of the dog scent discrimination evidence, any evidence on the subject of whether the dog scent discrimination evidence was or was not contaminated, the manner and circumstances in which the evidence was presented to the dog and its handler, and the reaction, if any, of the dog, as described by the handler, to the dog scent discrimination evidence.
Points and Authorities
Scent discrimination involves a dog sniffing the scent collected from an object a person is known to have touched and determining whether a second object has been touched by the same individual. The scents the dog sniffs are collected by a small vacuum cleaner-like device known as a “scent transfer unit,” which is “essentially a modified dust buster.” The device, known as an STU-100, was developed in 1994 by a bloodhound handler associated with the Niagara County Sheriff’s Department in New York. It extracts scents from an object and transfers the scents to a sterile gauze pad, thus avoiding possible damage to the object from which the scent has been taken. (People v. Mitchell(2003) 110 CA4th 772.)
In Mitchell there was evidence [shell casings] found at a murder scene that a police dog identified by scent as having been touched by the defendant. A scent transfer unit collected the scent. The trial court denied a defense motion under EC 402 to exclude evidence of the scent identification lineup on grounds that an adequate foundation could not be established for either scent identification lineup evidence in general or use of the scent transfer unit in particular. The appellate court concluded that the scent evidence should have been excluded, because the scent transfer unit was a novel device, requiring a People v. Kelly (1976) 17 C3d 24 analysis of reliability, and because the prosecution did not present evidence that the scent was uncontaminated and that each person’s odor was unique.
For additional information on scent transfer units (STU-100) go to :
http://www.angelfire.com/ny4/bigT/STU100.aspxl
http://www.crimelibrary.com/criminal_mind/forensics/k9/4.aspxl?sect=21
The above instruction was given in Mitchell. (People v. Mitchell (2003) 110 CA4th 772 modified version of CALJIC No. 2.16 given.)