SERIES 300 EVIDENCE
F 315.6 IDENTIFICATION:DNA
TABLE OF CONTENTS
F 315.6 Inst 1 Proposed Instruction On DNA Statistics
F 315.6 Inst 2 (a-c) DNA: Chain Of Custody As Preliminary Fact
F 315.6 Inst 3 DNA: Source Of Blood Sample As Preliminary Fact
F 315.6 Inst 4 DNA: Hair Or Blood Sample ComparisonC Deposit By Perpetrator As Preliminary Fact
F 315.6 Inst 5 (a-b) DNA: Jury Alone Determines Weight
F 315.6 Inst 6 Random Match Probability Statistic
F 315.6 Inst 7 Preliminary Fact: Tendency In Reason Of Expert Testimony To Prove A Fact
F 315.6 Inst 8 DNA: Coincidental Inclusion Between Two Different People
F 315.6 Inst 9 DNA: Factors To Consider
Return to Series 300 Table of Contents.
F 315.6 Inst 1 Proposed Instruction On DNA Statistics
You are about to be presented DNA evidence which includes statistical estimates of how rare or common DNA banding patterns are in various populations. You may consider these statistical estimates in evaluating the likelihood that different people would coincidentally have the same DNA banding patterns.
On the other hand, these frequency statistics are not an estimate of the likelihood of a false or misleading match of DNA banding patterns due to errors in the collection and handling of samples, errors in laboratory analyses, or intentional tampering with the samples.
The likelihood of a coincidental match between people who happen to share the same DNA banding pattern is a separate and independent issue from the likelihood of a false or misleading match due to errors in the collection and handling of samples, errors in laboratory analyses, or intentional tampering.
In the end, you will need to consider all the evidence in this case when evaluating the weight of the DNA evidence.
Points and Authorities
EC 403(c); People v. Riser (1956) 47 C2d 566, 580-81; Robinson v. Commonwealth (1971) 183 SE 2d 179, 180 (Va. Sup. Ct.).
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE Instruction Bank # I-868.
F 315.6 Inst 2 (a-c) DNA: Chain Of Custody As Preliminary Fact
Alternative a [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented evidence regarding _______________e.g., blood, hair, etc.. You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That the evidence was preserved in an unaltered and unchanged condition from the time of its seizure at a crime scene until the time it was analyzed.
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist, you must disregard, for all purposes, [the testimony of witness ___________name of witness>] [any evidence of ________________].
If you [all] find the above preliminary fact to exist then you [may] [must] consider [the testimony of witness ___________name of witness>] [any evidence of _________________] in your deliberations.
However, you must not rely on [___________’sname of witness> testimony] [the ____________<e.g., blood> evidence] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that the evidence was preserved in an unaltered and unchanged condition from the time of its seizure at a crime scene until the time it was analyzed.]
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [Evidence offered by the defense]:
The defendant has presented evidence regarding _______________e.g., blood, hair, etc.>. Before you may consider this evidence you must first make a preliminary finding that:
It is more likely than not that the evidence was preserved in an unaltered and unchanged condition from the time of its seizure at a crime scene until the time it was analyzed. Any juror who has made this finding, [may] [must] consider [the testimony of witness ___________name of witness>] [any evidence of _____________] in evaluating whether the prosecution has met its burden of proving the defendant guilty beyond a reasonable doubt.
The preliminary finding requirement applies only to the evidence regarding whether the evidence was preserved in an unaltered and unchanged condition from the time of its seizure at a crime scene until the time it was analyzed [and any other evidence requiring preliminary fact findings as stated elsewhere in these instructions]. All other evidence is to be fully considered without any preliminary fact findings.
The preliminary fact finding discussed in this instruction does not alter or lessen the presumption of innocence or the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative c [No reference to preponderance standard]:
Evidence of the analysis of blood or hairs or fibers or similar evidence recovered from a crime scene may not be considered until you first determine the evidence was preserved in an unaltered and unchanged condition from the time of its seizure at a crime scene until the time it was analyzed. This requirement, the purpose of which is to prevent contamination of or tampering with evidence, is known as the “chain of custody” requirement. Only if you determine that a reasonable chain of custody was accounted for may you then consider the results of any analysis or testing of such evidence. Unless a reasonable chain of custody of such evidence was established, however, you must disregard such evidence and not consider it for any purpose.
Points and Authorities
Chain Of Custody As A Preliminary Fact.—Since the relevance of the evidence depends on a finding that the chain of custody has been maintained, that finding is a preliminary fact under EC 403. (See People v. Mattison (1971) 4 C3d 177, 187.)
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts And Elements Of The Offense.—The final paragraph of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See F 100.1 Inst 1.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE Instruction Bank # I-868.
F 315.6 Inst 3 DNA: Source Of Blood Sample As Preliminary Fact
Alternative a [Evidence offered by prosecution: CALCRIM 224 and 376 FormatC Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented evidence regarding the comparison of blood allegedly found at the crime scene with a sample taken from the defendant.
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That the perpetrator is the person who deposited the [blood] [[hair] [_______] alleged found at the crime scene.
fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden o>A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find this preliminary fact to exist, you must disregard, for all purposes, [the testimony of witness ___________<name of witness>] [any evidence of ___________].
If you [all] find the above preliminary fact to exist then you [may] [must] consider [the testimony of witness ___________<name of witness>] [any evidence of ___________________] in your deliberations.
However, you must not rely on [______’s <name of witness> testimony] [the ____________<e.g., blood> evidence] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that the perpetrator is the person who deposited the [blood] [[hair] [_______] alleged found at the crime scene.]
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [Evidence offered by the defense]:
The defendant has presented evidence regarding the comparison of blood allegedly found at the crime scene with a sample taken from the defendant. Before you may consider this evidence you must first make a preliminary finding that:
The perpetrator more likely than not is the person who deposited the [blood] [[hair] [_______] allegedly found at the crime scene.
Any juror who has made this finding, [may] [must] consider [the testimony of witness ___________<name of witness>] [any evidence of ___________________] in evaluating whether the prosecution has met its burden of proving the defendant guilty beyond a reasonable doubt.
[The preliminary finding requirement applies only to the evidence regarding __________________ [and any other evidence requiring preliminary fact findings as stated elsewhere in these in these instructions]. All other evidence is to be fully considered without any preliminary fact findings.]
The preliminary fact finding discussed in this instruction does not alter or lessen the presumption of innocence or the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative c [No reference to preponderance standard]:
Evidence of the comparison of blood drops allegedly found on the _______________ <name or description of location> crime scene with a blood sample provided by _______________ <name of defendant> has been introduced for the purpose of showing the identity of the perpetrator of the murders. Before you may even consider such evidence, you must first determine whether the blood drops allegedly found at the crime scene were deposited by the perpetrator of the murders on _______________ <date of alleged crime If you find this fact to be true, you may then consider it for the purpose of determining whether it tends to show the identity of the perpetrator of the murders. If you determine that the alleged blood drops may have been deposited at some other time, however, you must disregard this evidence and not consider it for any purpose.
Points and Authorities
EC 403(c): “If the court admits the proffered evidence under this section, the Court on request shall … instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist.”
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts And Elements Of The Offense.—The final paragraph of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See F 100.1 Inst 1.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions—See CAVEAT 2 in FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE Instruction Bank # I-868.
F 315.6 Inst 4 DNA: Hair Or Blood Sample Comparison—Deposit By Perpetrator As Preliminary Fact
Alternative a [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
he prosecution has presented evidence regarding the comparison of blood allegedly found at the crime scene with a sample taken from the defendant.
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a prepo>You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That the perpetrator is the person who deposited the [blood] [[hair] [_______] allegedly found at the crime scene.
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find this preliminary fact to exist you must disregard, for all purposes, [the testimony of witness ___________<name of witness>] [any evidence of ___________].
If you [all] find the above preliminary fact to exist then you [may] [must] consider [the testimony of witness ___________<name of witness>] [any evidence of ___________________] in your deliberations.
However, you must not rely on [______’sname of witness> testimony] [the ____________<e.g., blood> evidence] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt thatthe perpetrator is the person who deposited the [blood] [[hair] [_______] alleged found at the crime scene.]
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [Evidence offered by the defense]:
The defendant has presented evidence regarding the comparison of blood allegedly found at the crime scene with a sample taken from the defendant.Before you may consider this evidence you must first make a preliminary finding that:
It is more likely than not that the perpetrator is the person who deposited the [blood] [[hair] [_______] allegedly found at the crime scene.
Any juror who has made this finding, [may] [must] consider [the testimony of witness ___________<name of witness>] [any evidence of ___________________] in evaluating whether the prosecution has met its burden of proving the defendant guilty beyond a reasonable doubt.
[The preliminary finding requirement applies only to the evidence regarding __________________ [and any other evidence requiring preliminary fact findings as stated elsewhere in these in these instructions]. All other evidence is to be fully considered without any preliminary fact findings.]
The preliminary fact finding discussed in this instruction does not alter or lessen the presumption of innocence or the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
Deposit By Perpetrator As A Preliminary Fact.—Since the relevance of the evidence depends on a finding that the perpetrator deposited the evidence sample, that finding is a preliminary fact under EC 403.
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts And Elements Of The Offense.—The final paragraph of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See F 100.1 Inst 1.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
F 315.6 Inst 5 (a-b) DNA: Jury Alone Determines Weight
Alternative a:
In describing the comparison of hairs and fibers in this case, the witness was not permitted to use the word “match.” When a witness offers an opinion that two hairs or fibers bear similar characteristics, it does not necessarily mean that they came from the same source. The jury alone has the final responsibility to decide the weight to be given to testimony regarding similarities in hairs and fibers. Such evidence alone is insufficient in the absence of other corroboration to identify the defendant as the perpetrator of the offenses charged.
Alternative b:
Where a witness offers an opinion that the DNA profiles of two blood samples “match” it does not necessarily mean that they came from the same source. The jury alone has the final responsibility to decide the weight to be given to testimony regarding DNA “matches.”
Points and Authorities
Alternative a: State v. Bloom (1994) 516 NW2d 159, 171 (Minn. Supreme Court, Page, J. concurring).
Alternative b: People v. Chandler (1971) 17 CA3d 798; EC 412 and 413.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
F 315.6 Inst 6 Random Match Probability Statistic
A given DNA profile may be shared by two or more people. The random match probability statistic used by DNA experts is not the equivalent of a statistic that tells you the likelihood of whether a defendant committed the crime. The random match probability statistic is the likelihood that a random person in the population would match the characteristics that were found in the crime scene evidence and in the defendant’s DNA. Such probability statistics assume that there has been no contamination of the DNA samples and no errors in the laboratory analysis.
Points and Authorities
PC 1127(b); State v. Bloom (1994) 516 NW2d 159, 171 (Minn. Supreme Court, Page, J., concurring).
Identification Of Parties.—See FORECITE F 100.2 Note 1.
CALJIC NOTE: See FORECITE Instruction Bank # I-868.
F 315.6 Inst 7 Preliminary Fact: Tendency In Reason Of Expert Testimony To Prove A Fact
Alternative a [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented [blood] [hair] [_____] evidence and opinion testimony concerning the analysis of such physical evidence.
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That the physical evidence has a tendency in reason to prove a fact at issue in this case.
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find this preliminary fact to exist you must disregard, for all purposes, [the testimony of witness ___________<name of witness[any evidence of ________________________].
If you [all] find the above preliminary fact to exist then you [may] [must] consider [the testimony of witness ___________<name of witness>] [any evidence of _____________________ ] in your deliberations.
However, you must not rely on [______’s ;name of witness> testimony] [the ____________<e.g., blood> evidence] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt thatthe physical evidence has a tendency in reason to prove a fact at issue in this case].
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [Evidence offered by the defense]:
The defendant has presented[blood] [hair] [_____] evidence and opinion testimony concerning the analysis of such physical evidence.>Before you may consider this evidence you must first make a preliminary finding that:
It more likely than not that the physical evidence has a tendency in reason to prove a fact at issue in this case.
Any juror who has made this finding, [may] [must] consider [the testimony of witness ___________<name of witness>] [any evidence of ____________________ ] in evaluating whether the prosecution has met its burden of proving the defendant guilty beyond a reasonable doubt.
The preliminary finding requirement applies only to the evidence regarding [blood] [hair] [_____] evidence and opinion testimony concerning the analysis of such physical evidence [and any other evidence requiring preliminary fact findings as stated elsewhere in these in these instructions]. All other evidence is to be fully considered without any preliminary fact findings.
The preliminary fact finding discussed in this instruction does not alter or lessen the presumption of innocence or the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative c:
Evidence has been presented concerning physical evidence such as DNA evidence, hair and fiber evidence and experts’ opinions concerning the analysis of such physical evidence. You are the sole judges of whether any such evidence has a tendency in reason to prove any fact at issue in this case. You should carefully review and consider all the circumstances surrounding each item of evidence, including but not limited to its discovery, collection, storage and analysis. If you determine any item of evidence does not have a tendency in reason to prove any element of the crimes charged or the identity of the perpetrator of the crimes charged, you must disregard such evidence.
Points and Authorities
People v. Donald Bowcutt (2000) Siskiyou Superior Court No. 95-707.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE Instruction Bank # I-868.
F 315.6 Inst 8 DNA: Coincidental Inclusion Between Two Different People
To evaluate evidence of a DNA inclusion, you must consider the possibility of a coincidental inclusion between two different persons who happen to have the same genetic characteristics. To help you evaluate this possibility, you have been given statistical estimates of the frequency of the inclusion characteristics in various populations as well as the error rate for DNA testing.
You may rely on these statistical estimates to help you evaluate how rare or common the inclusion may be. The statistical estimates do not however, indicate the likelihood that two similar samples are or are not from the same person.
You must consider all of the evidence in this case, not just the DNA evidence, when evaluating the likelihood that samples that are similar on a DNA test are, or are not, from the same person.
The burden is on the government to prove beyond a reasonable doubt that the defendant is the person who committed the crimes with which he is charged.
If, after considering the circumstances of the DNA evidence and any other evidence in the case, you have a reasonable doubt whether the defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty.
Points and Authorities
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE Instruction Bank # I-868.
F 315.6 Inst 9 DNA: Factors To Consider
DNA evidence and testimony regarding DNA evidence has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime charged. In determining the weight to be DNA evidence, consider the reliability of the evidence, as well as other factors which bear upon the accuracy of the DNA evidence, including but not limited to any of the following:
The validity and reliability of the test methods used;
The accuracy and reproducibility of the test results;
The risk of contamination;
The extent to which the defendant either fits or does not fit the genetic profile of the evidence;
The validity and reliability of the database used to calculate the estimated frequency of a genetic profile;
The risk of a false positive or false negative result based on the laboratory error; and
Any other evidence relating to the DNA evidence and its ability to link or not link the defendant to the charged crime.
[Source: Given in People v. Bowcutt (2000) Siskiyou Superior Court # 95-707.]
Points and Authorities
Propriety Of Instruction On Individual Factors.—It is well accepted practice to list specific factors for the jurors’ consideration in evaluating a specific factual issue. (See e.g., CC 315.)
Moreover, such an instruction maybe appropriate as a defense theory instruction. (See People v. Wright (1988) 45 C3d 1126, 1139, fn 9; People v. West (1983) 139 CA3d 606, 609.)
When given, such an instruction should guard against undue emphasis by instructing that the relevant factors are not “limited to” the enumerated ones and that the jurors should consider all of the evidence. (See FORECITE F 105.2 Inst 2.)
Identification Of Parties.—See FORECITE F 100.2 Note 1.
CALJIC NOTE: See FORECITE Instruction Bank # I-868.
