CC 373 Improperly Implies That The Dog’s Identification Of The Defendant Or Location Is A “Fact”
August 30th, 2019

CC 373 instructs as follows:

You have received evidence about the use of a tracking dog. You may not conclude that the defendant is the person who committed the crime based only on the fact that a dog indicated the defendant [or a location]. Before you may rely on dog tracking evidence, there must be:

  1. Evidence of the dog’s general reliability as a tracker; AND
  2. Other evidence that the dog accurately followed a trail that led to the person who committed the crime. This other evidence does not need to independently link the defendant to the


The highlighted sentence improperly implies that the dog’s identification of the defendant or location is a “fact.” Compare People v. Westerfield (2019) 6 Cal. 5th 632, 708-09 [CJ 2.16 properly instructs that “[e]vidence of dog tracking has been received for the purpose of showing, if it does, that the defendant is the perpetrator of the crimes of kidnapping and murder.” [Italics in original).].)

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