CALJIC 2.16 Properly Instructs Jury on Dog Scent Evidence; Instruction Is Not Required Sua Sponte
July 30th, 2019

In People v. Westerfield (2019) 6 Cal. 5th 632 evidence that a cadaver dog had “alerted” to a scent in defendant’s motorhome was admitted before the jury.  The jury was instructed pursuant to CALJIC No. 2.16 that dog tracking evidence is not sufficient by itself to permit an inference that the defendant is guilty of the crimes of murder and kidnapping.  To make such an inference it is necessary that the dog tracking evidence be corroborated by independent evidence which may include facts supporting the accuracy of the dog tracking itself.


Westerfield claimed that CJ  2.16 was inadequate because it fails to expressly admonish the jury to view dog-scent evidence “with care and caution.”  He argued that People v. Malgren (1983) 139 Cal.App.3d 234 should be overruled because it allows dog-scent evidence to be treated as any other evidence, when it is more akin to accomplice testimony which requires direct corroboration linking a defendant to a crime.  The CSC rejected the defendant’s argument.  An express cautionary admonition regarding dog-scent evidence is not a general principle of law necessary to the jury’s understanding of the case and therefore there is no sua sponte duty to so instruct the jury.  Furthermore, CALJIC No. 2.16 states “[e]vidence of dog tracking has been received for purposes of showing, if it does, that the defendant is the perpetrator of the crimes of kidnapping and murder.”  [Emphasis added.] The highlighted language alerts the jury to consider the possibility that the evidence does not reflect that the defendant is the perpetrator.  Coupled with the language that dog-scent evidence, standing alone, is not sufficient for an inference of guilt, and that corroborating evidence is required, CJ. 2.16 already contains limitations and safeguards ensuring that the jury will carefully evaluate dog-scent evidence.


The CSC also concluded that CJ 2.16 does not lessen the prosecution’s burden of proof because it fails to relate the issue of dog-scent evidence to the standard of proof beyond a reasonable doubt.  While it is true that the CALCRIM committee added such language to the instruction on possession of recently stolen property (CALCRIM No. 376), that additional language does not reflect a legal inaccuracy or deficiency in CALJIC 2.16.  CALJIC 2.16 provided the jury with an inference that the jury might draw from this particular item of circumstantial evidence but it did not alter the court’s other instructions concerning the necessity of proof beyond a reasonable doubt.

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