Motion Bank # M-3012 (Re: F 2.80 n8 [Expert Witnesses: DNA Jury Instructions And Motions].)
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JAMES S. THOMSON
California SBN 79658
California SBN 194978
Criminal Defense Attorneys
819 Delaware Street
Berkeley CA 94710
Telephone: (510) 525-9123
Facsimile: (510) 525-9124
TIMOTHY J. FOLEY
Attorney at Law
California SBN 111558
2901 Webster Street
San Francisco CA 94123
Telephone : (415) 922-0882
Facsimile: (415) 922-4310
BICKA A. BARLOW
Attorney at Law
California SBN 178723
139 Townsend Street, Suite 201
San Francisco CA 94107
Telephone: (415) 495-3324
Facsimile: (415) 495-4429
Attorneys for Defendant
DONALD RAY BOWCUTT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SISKIYOU
THE PEOPLE OF THE STATE OF CALIFORNIA, CASE NO. 54216
Plaintiff, Date:March 28, 2000
Time: 9:00 a.m.
REPLY TO GOVERNMENT’S OPPOSITION TO DNA JURY INSTRUCTION
(Motion No. 28)
On February 13, 1998, the Court issued an order regarding the admissibility of DNA evidence after hearing evidence in a Kelly hearing. In its order admitting the results of RFLP, DQa, Polymarker and D1S80 testing, the Court stated:
The Court together with counsel will have to fashion an instruction that makes it clear that simply because such evidence is based on scientific methodology the jury cannot abandon its sworn duty to consider all the evidence and that scientific evidence simply because it is scientific is entitled to no greater weight than other evidence introduced at trial. It is absolutely essential that the jury understand that the DNA evidence in and of itself is not the determiner of the Defendant’s guilt or innocence. The Court has thus far read no instruction that in its mind adequately instruct the jury in this area. To put it differently the Court believes that without a carefully crafted instruction in this area the Defendant’s rights cannot be protected.
Decision on Admissibility of DNA Evidence at Trial, at 9.
On July 14, 1998, the government filed Points and Authorities in Opposition to a Special Instruction Regarding DNA. The government’s objection to the instruction is in essence that such an instruction would inappropriately focus the jury on evidence. Id. at 3.
The defendant now submits a proposed jury instruction as requested by the Court in its order.
A JURY INSTRUCTION REGARDING DNA EVIDENCE IS NOT IMPROPER
In People v. Sears (1970) 2 Cal. 3d 180, 190, the California Supreme Court held that a defendant in a criminal proceeding has the right to “an instruction that directs attention to evidence from a consideration of which a reasonable doubt of his guilt could be engendered. . . . A defendant is entitled to an instruction relating particular facts to any legal issue.” The court noted that where the materiality or relevance of certain evidence is not apparent to a jury, “the courts of this state have often approved instructions pointing out the relevance of certain kinds of evidence to a specific issue.” Id. Jury instructions should contain “a principle of law applicable to the case, expressed in plain language, indicating no opinion of the court as to any fact in issue.” People v. Wright (1988) 45 Cal. 3d 1126, 1135. The defendant is entitled to a non argumentative instruction that which pinpoints the theory of the defense. Id. at 1136-37.
A classic example of special instructions regarding evidence as it relates to position that the reasoning of cases relating to the development of eyewitness identification is analogous to the giving of an DNA identification instruction.
The California Supreme Court held that CALJIC 2.92 and CALJIC 2.91 relating factors involved in eyewitness identification to reasonable doubt were proper pinpoint instructions. [Footnote 1] The court stated that “a proper instruction on eyewitness identification factors should focus the jury’s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors to be supported by the evidence.” People v. Wright (1988) 45 Cal. 3d 1126, 1141, 1143. In Wright the defendant’s requested instruction listed the factors to be considered without “explaining” the psychological theory behind the factors. Id. at 1141. In this way the neutral listing avoided having the trial court “endorse” or require the jury to adopt, any particular theory. Id. The instruction should be neutral and non argumentative. Id. at 1143. The eyewitness instruction CALJIC 2.92 should be given when “requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence.” Id. at 1144.
In this case, the Court should give the defendant’s requested jury instruction. As the government has made clear, this case rests so much on DNA evidence that the government initially dismissed this case when the DNA testing results were inconclusive. People v. Bowcutt, Reporter’s Transcript, Case No. 44748, at 4-5. There is little if any corroborating evidence under the government’s own theory of the case. Under these circumstances, it is more imperative that the Court provide a carefully tailored instruction as to DNA evidence and its relationship to the standard of reasonable doubt.
The government cites to a number of cases from outside California for the proposition that any jury instruction on DNA evidence is improper. The government cites Matamoros v. State (Tex. 1995) 901 S.W.2d 470, for the general proposition that DNA instructions should not be given. However, the requested instruction in Matamoros was clearly improper as argumentative under California law in that it requested the trial court to comment on the evidence. Unlike the instruction in CALJIC 2.92 and the defendant’s proposed instructions, the instruction in Matamoros contained no neutral listing of factors or relation to reasonable doubt. Id. at 477 n.6. In addition, the law of Texas as set forth by Matamaros is in conflict with that of California. Id. at 477. California, unlike Texas, does allow the defendant to have pinpoint instructions such as CALJIC 2.92 which relate in a neutral manner evidence to the defendant’s theory of the case. See, Wright, 45 Cal. 3d at 1141, 1143.
Of the other cases cited by the government, they are either from states in which there is no law similar to that in California allowing pinpoint instructions (see, State v. Campbell (R.I. 1997) 691 A.2d 564; State v. Hyman (S.C. 1996) 471 S.E.2d 466; Commonwealth v. Rosier, (Mass. 1997) 685 N.E.2d 739) or the requested instructions were argumentative or factual rather than legal (see, Keen v. Commonwealth (Va. 1997) 485 S.E.2d 659).
Finally, the government ignores the case of People v. Morris (1988) 199 Cal. App. 3d 377. In Morris, the trial court found electrophoretic testing of blood to be generally accepted. Id. at 389-91. The court of appeal in reviewing the trial court’s finding held that it was proper to permit evidence that the accused was included within a class of possible donors, in light of the fact that “other evidence existed linking defendant to the crime and the judge instructed the jury that the bloodstain evidence was insufficient to establish guilt.” Id. at 391 [emphasis added].
Contrary to the government’s assertions, DNA evidence is no different than eyewitness identification or electrophoretic testing that requires corroboration for a finding of guilt and that is properly the subject of a neutral and carefully tailored jury instruction.
Therefore, the defendant requests this Court to admonish the jury by reading the defendant’s proposed jury instruction. The proposed instruction is neutral and relates the law to the facts in a manner that does not require the Court to comment on the weight or reliability of the government’s DNA evidence. It is a neutral comment on the legal principles that apply to DNA evidence. As such, the jury should be instructed on this legal principle
DATED: , 2000 Respectfully submitted,
JAMES S. THOMSON
TIMOTHY J. FOLEY
by: BICKA A. BARLOW
Attorneys for Defendant
Footnote 1: See, People v. Wright (1988) 45 Cal. 3d 1126, 1138-41, for a history of the use of eyewitness identification instructions in California.