F 374 Dog Tracking Evidence

TABLE OF CONTENTS
F 374 Inst 1 Language Clarification
F 374 Inst 2 (a & b) Dog Tracking Identification: Use Of Scent Transfer Unit
F 374 Inst 3 Identification: Dog Tracking—Additional Factors

F 374 NOTES
F 374 Note 1 Dog Tracking Instruction: Inapplicable To Dog Sniffing
F 374 Note 2 Dog Scent Identification and Scent Transfer Unit (STU) Evidence: Subject To Kelly Rule Analysis

Return to Series 300 Table of Contents.

F 374 Inst 1 Language Clarification

*Modify CC 374, paragraph 2 as follows [added language is underlined; deleted language is stricken]:

In deciding evaluating the meaning and importance, if any, of the dog tracking evidence, consider the training, skill, and experience, if any, of the dog, its trainer, and its handler, together with everything else that you learned with any other evidence about the dog’s work in this case.

Points and Authorities

Deciding vs. Evaluating.—See FORECITE F 100.7 Inst 1.

Everything You Learned.—This language improperly comments on the evidence by implying that the dog tracking evidence is credible. (See FORECITE F 100.1 Inst 5.)

If Any.—The instructions should not assume that specific evidence has any meaning or importance. (See FORECITE F 105.1 Inst 6; see also F 100.1 Inst 5.)

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 2.2 [Burden Of Proof: Elements And Essential Facts]
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.

F 374 Inst 2 (a & b) Dog Tracking Identification: Use Of Scent Transfer Unit

Alternative a:

*Replace CC 374 with:

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.

Alternative b:

*Replace CC 374, paragraph 2 with the following:

In evaluating the accuracy of the dog scent discrimination evidence and the weight, if any, to give this evidence, the facts to consider include, but are not limited to, the following:

1. The training, proficiency, experience and proven ability, if any, of the dog, its trainer and its handler;

2. The manner and circumstances surrounding the collection of the dog scent discrimination evidence;

3. Any evidence on the subject of whether the dog scent discrimination evidence was or was not contaminated; and

4. 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

Right To Instruction On Relevant Factors Generally.—It is appropriate to instruct the jurors on specific factors relevant to a given factual issue. (See e.g., People v. Wright (1988) 45 C3d 1126, 1149 [eyewitness identification factors]; People v. Gurule (20020) 28 C4th 557, 660 [defense right to pinpoint instruction on defense theory]; U.S. v. Pierra (9th Cir. 2001) 254 F3d 872 [same]; see also FORECITE F 315.1.2 Inst 2.) The CALCRIM instructions affirm the propriety of such instructions. (See e.g., CC 105/CC 226 [witness factors]; CC 330 [child witness factors]; CC 331 [person with developmental, cognitive, or mental disability]; CC 441 [whether solicitation constitutes multiple crimes]; CC 549 [felony murder; one continuous transaction]; CC 1156 [intent to commit prostitution]; CC 1201/CC 1215 [kidnapping: substantial distance]; CC 2110 [manner of driving is factor to consider re: driving under the influence]; CC 2840 [failure to file tax return is factor to consider]; CC 2842/CC 2843 [another factor to consider re: unreported taxable income].)

Right To Instruction On Dog Tracking Factors.—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, which more fully describes the relevant factors, was given in People v. Mitchell (2003) 110 CA4th 772.

See also FORECITE F 374 Note 1.

Identification Of Parties.—See FORECITE F 100.2 Note 1.

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
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.

RESEARCH NOTES: See Annotation, Evidence of trailing by dogs in criminal cases, 18 ALR3d 1221 and Later Case Service.

CALJIC NOTE: See FORECITE F 2.16a.

F 374 Inst 3 Identification: Dog Tracking—Additional Factors

*Replace CC 374, paragraph 2, with the following:

In evaluating the dog tracking evidence the factors for you to consider, if applicable, include, but are not limited to, the following:

1. Whether or not the handler was qualified by training and experience to use the dog.

2. Whether or not the dog was adequately trained in tracking humans.

3. Whether or not the dog has been found reliable in tracking humans.

4. Whether the dog was placed on the track where circumstances have shown the guilty party to have been.

5. Whether or not the trail had become stale or contaminated.

Points and Authorities

Right To Instruction On Relevant Factors Generally.—See FORECITE F 374 Inst 2.

Right To Instruction On Dog Tracking Factors.—CALCRIM 374 fails to include potentially relevant factors regarding dog tracking evidence. The above instruction, which is based on People v. Gonzales (1990) 218 CA3d 403, 407, more specifically alerts the jury to the considerations affecting the weight of such evidence.

Identification Of Parties.—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

RESEARCH NOTES: See Annotation, Evidence of trailing by dogs in criminal cases, 18 ALR3d 1221 and Later Case Service.

CALJIC NOTE: See FORECITE F 2.92c/F 2.16 n1.

F 374 NOTES

F 374 Note 1 Dog Tracking Instruction: Inapplicable To Dog Sniffing

People v. Mitchell (1994) 30 CA4th 783, 807 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.

CALJIC NOTE: See FORECITE F 2.16 n2.

F 374 Note 2 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 (1976) 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.)

CALJIC NOTE: See FORECITE F 2.16 n3.