Free Proposed Jury Instructions - District Court of Delaware - Delaware

Case 1:08-cr-00082-GMS

Document 19

Filed 08/22/2008

Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. LARRY M. WILMER, Defendant.

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Criminal Action No. 08-82-GMS

DEFENDANT WILMER'S PROPOSED JURY INSTRUCTION ON INVESTIGATIVE TECHNIQUES AND NOW comes the defendant, Larry M. Wilmer, by his attorney Keir Bradford of the Federal Public Defender's Office, and files this Proposed Jury Instruction on Investigative Techniques.

Respectfully submitted,

/s/ Keir Bradford KEIR BRADFORD, ESQUIRE Assistant Federal Public Defender One Customs House 704 King Street, Suite 110 Wilmington, DE 19801 302-573-6010 [email protected] Attorney for Defendant Larry M. Wilmer DATED: August 22, 2008
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Case 1:08-cr-00082-GMS

Document 19

Filed 08/22/2008

Page 2 of 2

DEFENDANT'S PROPOSED JURY INSTRUCTION RELEVANCE OF SPECIFIC INVESTIGATIVE TECHNIQUES

Defendant has argued that reasonable doubt arises from omissions in the government's investigation. Specifically, defendant argues that reasonable doubts arise from the absence of DNA testing. I will now instruct you on the law which you should apply in considering these arguments.

"A reasonable doubt may arise not only from the evidence produced, but also from a lack of evidence. Since the burden is upon the Government to prove the defendant guilty beyond a reasonable doubt of every essential element of the crime charged, a defendant has the right to rely upon the failure of the prosecution . . . to establish such proof."1 Thus, reasonable doubt may arise from a lack of evidence.

There is no rule of law which requires the police to utilize every investigative technique in every case. In one case, a jury might determine that the absence of a particular investigative technique is of no particular consequence. In another case, the absence of that same investigative technique might cause the jurors to have a reasonable doubt. It all depends on the facts of the case, and you are the judge of the facts.

United States v. Stubin, 446 F.2d 457, 465 n. 7 (3d Cir. 1971), finding that the cited jury instruction was part of an "adequate and correct statement" of the meaning of "reasonable doubt." See also Jackson v. Virginia, 443 U.S. 307, 318 n. 9, 99 S.Ct. 2781, 2788 n. 9 (1979) ("A reasonable doubt has been described as one based on reason which arises from the evidence or lack of evidence") (citation and internal quotations omitted). 2

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