CCDLA Jury Instructions

1. CCDLA Jury Instructions Investigative Omission & Implicit Bias

2. Investigative Omission

3. The Foundations Police Failed To Follow Procedure or Statute "neither the defendant's proposed questions nor his offer of proof established the basis for a claim that the police, in not pursuing certain avenues of investigation, had failed to act in accordance with past established practices or standard police investigative procedures," meaning that the defendant could not "establish that the trial court improperly precluded him from advancing an inadequate investigation defense on this basis." State v. Wright, 322 Conn. 270, 281-82 (2016). Request the department’s policies and procedures for investigations, taking statements, and eyewitness ID. If you don’t have proof the police are not following standard procedures, the trial court may perceive this as a fishing expedition and preclude it. See State v. Wright, 322 Conn. 270 (2016). The offer of proof was also deemed inadequate in State v. Johnson, 171 Conn. App. 328 (2017) and State v. Holley, 327 Conn. 576 (2018). You need to make your offer as clear as possible. See also Kyles v. Whitley, 514 U.S. 419 (1995); State v. Hites-Clabaugh, 251 Or.App. 255, 259-67, 283 P.3d 402 (2012)

4. East Haven Police Department Policies and Procedures No. 410.2 Preliminary Criminal Investigations, is an example of the general guidance one might expect to find in such policies. See http://www.easthavenpolice.com/index.php/about-us/policy-procedure/ It states that, inter alia, (C)(3) Responding officers should make note of any vehicles leaving or coming from the vicinity of the crime scene and make note of the registration numbers, general description of the vehicles and its occupants. (J)(1) Every reasonable effort shall be made to locate, identify and interview reliable witnesses. (J)(7) After all witnesses located at the scene have been interviewed, the officers shall, upon direction by the ranking officer on scene, canvas residences and businesses in the area in order to locate persons who did witness some aspect of the crime, but who are reluctant to come forward with that information. A follow-up neighborhood canvas should be done the following day at the same time of the original incident. It concludes with a procedural checklist including: Seek out potential witnesses and require that they remain at the scene until interviewed. Often it is best to keep witnesses separated if at all possible, so that they do not contaminate each other¡|s version of what they may have observed. Identify all persons present at the scene and record their names, addresses, and telephone numbers. Record the registration numbers of any motor vehicles at the immediate scene. Be curious and suspicious, do not take anything for granted and do not jump to conclusions.

5. Cautions • This is separate and distinct from Third-Party Culprit evidence. You need to be very clear about why you are offering this evidence. • If you are raising a Collins/Wright defense, be careful. These two cases refer to a line of Massachusetts cases on this issue, which warn that challenging the investigation “is clearly a two-edged sword: the more wide-ranging the defendant's attack on the police investigation, the broader the [prosecutor]'s response may be.” Commonwealth v. Avila, 912 N.E.2d 1014, 1024 (Mass. 2009). If the defense challenges the investigation, the State can elicit the reason why a particular investigative technique was not used. See Commonwealth v. Lodge, 727 N.E.2d 1194, 1201 (Mass. 2000). It may even be able to offer general testimony about the scope of its investigation in anticipation of an inadequate investigation defense. See Commonwealth v. Dorisca, 42 N.E.3d 1184, 1193 (Mass. App. 2015). • Also remember that you are raising an investigative omission defense, which is different from a due process claim about failure to preserve or test. State v. Morales, 232 Conn. 707 (1995) (due process does not require police "to preserve every shred of physical evidence, every object it seizes from a crime scene, no matter how remote or tangential to the case the item seems to be.") does not bar this defense or instruction.

6. Model Jury Instruction 2.6-14 Adequacy of Police Investigation New, November 6, 2014 You have heard some arguments that the police investigation was inadequate and that the police involved in this case were incompetent. The issue for you to decide is not the thoroughness of the investigation or the competence of the police. The only issue you have to determine is whether the state, in the light of all the evidence before you, has proved beyond a reasonable doubt that the defendant is guilty of the count[s] with which (he/she) is charged. Commentary "A defendant may . . . rely upon relevant deficiencies or lapses in the police investigation to raise the specter of reasonable doubt, and the trial court violates his right to a fair trial by precluding the jury from considering evidence to that effect." State v. Collins, 299 Conn. 567, 599-600 (2011) (finding that such an instruction as this does not preclude the jury from considering the evidence of the police investigation as it might relate to any weaknesses in the state's case). "Collins does not require a court to instruct the jury on the quality of police investigation, but merely holds that a court may not preclude such evidence and argument from being presented to the jury for its consideration." State v. Wright, 149 Conn. App. 758, 773-74, cert. denied, 312 Conn. 917(2014). MY COMMENTS Wright case being cited is State v. Ryan C. Wright decided in April 2014, not State v. Billy Ray Wright, 152 Conn. App. 260 (2014), affd. 322 Conn. 270 (2016). Billy Ray Wright’s Appellate Case was decided in August, 2014. This language comes from State v. Williams, 169 Conn. 322 (1975) (“the issue before you is not the thoroughness of the investigation or the competence of the police”). It was upheld State v. Collins, 299 Conn. 567, 599-600 (2011), but I think it is inherently in conflict with an investigative bias/omission defense under Billy Ray Wright’s case. OBJECT! The Williams language has been raised in State v. Tate, 59 Conn. App. 282 (2000), State v. Neives, 106 Conn. App. 40 (2008); and State v. Collins, 299 Conn. 567 (2011), but always as a Golding issue, where it fails that test.

7. Model is One-Sided 2.6-14 Adequacy of Police Investigation You have heard some arguments that the police investigation was inadequate and that the police involved in this case were incompetent. The issue for you to decide is not the thoroughness of the investigation or the competence of the police. The only issue you have to determine is whether the state, in the light of all the evidence before you, has proved beyond a reasonable doubt that the defendant is guilty of the count[s] with which (he/she) is charged. 2.6-3: Consciousness of Guilt In any criminal trial it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense may have been influenced by the criminal act; that is, the conduct or statements show a consciousness of guilt [Examples] Such (acts / statements) do not, however, raise a presumption of guilt. If you find the evidence proved and also find that the (acts / statements) were influenced by the criminal act and not by any other reason, you may, but are not required to, infer from this evidence that the defendant was acting from a guilty conscience. The state claims that the following conduct is evidence of consciousness of guilt: <describe specific evidence>. It is up to you as judges of the facts to decide whether the defendant's (acts / statements), if proved, reflect a consciousness of guilt and to consider such in your deliberations in conformity with these instructions.

8. Model is One-Sided 2.6-14 Adequacy of Police Investigation You have heard some arguments that the police investigation was inadequate and that the police involved in this case were incompetent. The issue for you to decide is not the thoroughness of the investigation or the competence of the police. The only issue you have to determine is whether the state, in the light of all the evidence before you, has proved beyond a reasonable doubt that the defendant is guilty of the count[s] with which (he/she) is charged. 2.6-3: Consciousness of Guilt In any criminal trial it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense may have been influenced by the criminal act; that is, the conduct or statements show a consciousness of guilt [Examples] Such (acts / statements) do not, however, raise a presumption of guilt. If you find the evidence proved and also find that the (acts / statements) were influenced by the criminal act and not by any other reason, you may, but are not required to, infer from this evidence that the defendant was acting from a guilty conscience. The state claims that the following conduct is evidence of consciousness of guilt: <describe specific evidence>. It is up to you as judges of the facts to decide whether the defendant's (acts / statements), if proved, reflect a consciousness of guilt and to consider such in your deliberations in conformity with these instructions.

9. Model is One-Sided 2.6-14 Adequacy of Police Investigation You have heard some arguments that the police investigation was inadequate and that the police involved in this case were incompetent. The issue for you to decide is not the thoroughness of the investigation or the competence of the police. The only issue you have to determine is whether the state, in the light of all the evidence before you, has proved beyond a reasonable doubt that the defendant is guilty of the count[s] with which (he/she) is charged. 2.6-3: Consciousness of Guilt In any criminal trial it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense may have been influenced by the criminal act; that is, the conduct or statements show a consciousness of guilt [Examples] Such (acts / statements) do not, however, raise a presumption of guilt. If you find the evidence proved and also find that the (acts / statements) were influenced by the criminal act and not by any other reason, you may, but are not required to, infer from this evidence that the defendant was acting from a guilty conscience. The state claims that the following conduct is evidence of consciousness of guilt: <describe specific evidence>. It is up to you as judges of the facts to decide whether the defendant's (acts / statements), if proved, reflect a consciousness of guilt and to consider such in your deliberations in conformity with these instructions.

10. Another Contrast 2.6-14 Adequacy of Police Investigation  You have heard some arguments that the police investigation was inadequate and that the police involved in this case were incompetent. The issue for you to decide is not the thoroughness of the investigation or the competence of the police. The only issue you have to determine is whether the state, in the light of all the evidence before you, has proved beyond a reasonable doubt that the defendant is guilty of the count[s] with which (he/she) is charged. 2.6-10 Third Party Culpability There has been evidence that a third party, not the defendant, committed the crime[s] with which the defendant is charged. This evidence is not intended to prove the guilt of the third party, but is part of the total evidence for you to consider. The burden remains on the state to prove each and every element of the offense beyond a reasonable doubt. It is up to you, and to you alone, to determine whether any of this evidence, if believed, tends to directly connect a third party to the crime[s] with which the defendant is charged. If after a full and fair consideration and comparison of all the evidence, you have left in your minds a reasonable doubt indicating that the alleged third party, <insert name of third party>, may be responsible for the crime[s] the defendant is charged with committing, then it would be your duty to render a verdict of not guilty as to the accused, <insert name of defendant>.

11. Another Contrast 2.6-14 Adequacy of Police Investigation  You have heard some arguments that the police investigation was inadequate and that the police involved in this case were incompetent. The issue for you to decide is not the thoroughness of the investigation or the competence of the police. The only issue you have to determine is whether the state, in the light of all the evidence before you, has proved beyond a reasonable doubt that the defendant is guilty of the count[s] with which (he/she) is charged. 2.6-10 Third Party Culpability There has been evidence that a third party, not the defendant, committed the crime[s] with which the defendant is charged. This evidence is not intended to prove the guilt of the third party, but is part of the total evidence for you to consider. The burden remains on the state to prove each and every element of the offense beyond a reasonable doubt. It is up to you, and to you alone, to determine whether any of this evidence, if believed, tends to directly connect a third party to the crime[s] with which the defendant is charged. If after a full and fair consideration and comparison of all the evidence, you have left in your minds a reasonable doubt indicating that the alleged third party, <insert name of third party>, may be responsible for the crime[s] the defendant is charged with committing, then it would be your duty to render a verdict of not guilty as to the accused, <insert name of defendant>.

12. CCDLA Proposal Omissions in Police Investigation You have heard some evidence suggesting that [the prosecution] [law enforcement] did not [adequately investigate this case] [conduct certain scientific tests], [follow standard procedure during the police investigation]. A significant [unexplained or inadequately explained] omission or failure in the investigation may leave you with a reasonable doubt as to the defendant’s guilt. Authority: See: State v. Wright, 322 Conn. 270 (2016); State v. Collins, 299 Conn. 567, 599-600 (2011). See also State v. Johnson, 171 Conn. App. 328 (2017); Kyles v. Whitley, 514 U.S. 419 (1995); People v. Rodriguez, 141 App. Div.2d 382, 529 N.Y.S.2d 318 (1988); State v. Hites-Clabaugh, 251 Or. App. 255, 259-67, 283 P.3d 402 (2012). See generally Rossmo, Criminal Investigative Failures 13-14 (2009). This language similar to a Massachusetts standard instruction. See http://www.mass.gov/courts/docs/courts-and-judges/courts/district-court/jury-instructions-criminal/3740-evidence-omissions-in-police-investigations.pdf

13. Massachusetts VersionDistrict Court Model Instruction OMISSIONS IN POLICE INVESTIGATIONS You have heard some evidence suggesting that the Commonwealth did not conduct certain scientific tests or otherwise follow standard procedure during the police investigation. This is a factor you may consider in evaluating the evidence presented in this case. With respect to this factor, you should consider three questions: First: Whether the omitted tests or other actions were standard procedure or steps that would otherwise normally be taken under the circumstances; Second: Whether the omitted tests or actions could reasonably have been expected to lead to significant evidence of the defendant’s guilt or innocence; and Third: Whether the evidence provides a reasonable and adequate explanation for the omission of the tests or other actions. If you find that any omissions in the investigation were significant and not adequately explained, you may consider whether the omissions tend to affect the quality, reliability or credibility of the evidence presented by the Commonwealth. This instruction is based on Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482, 491 (1980), and the discussion of Bowden and related decisions set forth in Commonwealth v. Flanagan, 20 Mass. App. Ct. 472, 475-476, 481 N.E.2d 205, 207-208 (1985). A jury instruction on this subject is not required but is permissible in the judge’s discretion.

14. Other Sources • Criticism of restrictive investigative instructions • Atkins v. State, 421 Md. 434, 26 A.3d 979 (2011) and Stabb v. State, 423 Md. 454, 31 A.3d 922 (2011) • Somewhat more balanced Federal language • Third Circuit’s Model Criminal Jury Instructions 4.14 Specific Investigation Techniques not Required • United States v. Saldarriaga, 204 F.3d 50, 52-53 (2d Cir. 2000) (per curiam) • United States v. Mason, 954 F.2d 219, 222 (4th Cir. 1992) • United States v. Cota-Meza, 367 F.3d 1218, 1223 (10th Cir. 2004)

15. Implicit Bias

16. CCDLA Proposal 1.1-2 Role of the Jury As a juror it will be your duty to decide, based on the evidence presented here in this courtroom, whether or not the state has proved beyond a reasonable doubt the elements of each crime charged in a count. It is your job as jurors to decide the facts. You will decide what the facts are based on the evidence presented in this courtroom; you will not make any private investigations. As a juror, you may draw any and all inferences that you find reasonable and logical from the evidence you hear. You will follow the instructions as to the law that applies in this case as I will explain it to you. You must follow the instructions as to the law, whether or not you agree with it. As jurors you must put aside your personal opinions as to what the law is or should be, and you must apply the law as I instruct. You must decide the case solely on the evidence and the law before you and must not be influenced by any personal likes or dislikes, opinions, prejudices, sympathy, or biases. Everyone has feelings, assumptions, perceptions, fears, and stereotypes, that is, “implicit biases,” that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, you must evaluate the evidence carefully and resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases. As to each count, your verdict will be either guilty or not guilty. Your verdict as to a count must be unanimous; all (six / twelve) jurors must agree on the verdict as to each count. AUTHORITY: Jury Instructions of Judge Mark W. Bennett, Federal District Judge for the Western District of Iowa, available at http://www.iand.uscourts.gov/e-web/instructions.nsf/(Judge%20Bennett); U.S. District Court for the Western District of Washington Jury Instructions on Implicit Bias, available at: http://www.wawd.uscourts.gov/sites/wawd/files/CriminalJuryInstructions-ImplicitBias.pdf

17. Additional Resources See Federal District Court for Western Washington’s accompanying video for jurors: http://www.wawd.uscourts.gov/jury/unconscious-bias See also Arkansas’s proposed instruction: https://courts.arkansas.gov/sites/default/files/tree/implicit%20bias%20w%20att.pdf California Civil Jury Inst. 113 (Bias) https://www.justia.com/trials-litigation/docs/caci/100/113/ Cook County Illinois proposed instruction: https://cookcountybar.org/sites/www.cookcountybar.org/files/assets/2017-AIJ-Proj-Proposed-Instruction.pdf ABA Achieving an Impartial Jury Toolbox (p. 15-22) https://www.americanbar.org/content/dam/aba/publications/criminaljustice/voirdire_toolchest.authcheckdam.pdf

18. Judge Bennett’s language Implicit Bias Jury Instruction By: Judge Mark W. Bennett Do not decide the case based on "implicit biases." As we discussed in jury selection, everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is "implicit biases," that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and to resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluations of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases.