Jury Instruction Objection

Jury Instruction Objection

In August, the Kansas Supreme Court determined, in State v. Duong, 257 P.3d 309, that the district court did not make a clearly erroneous error when it failed to give the eyewitness cautionary instruction in an aggravated indecent liberties with a child case.  However, the defendant argued that the case turned on the fact that the child could not correctly identify the defendant.    

The eyewitness cautionary instruction identifies that it is the State’s burden to identify the defendant, and that the “law does not require the defendant to prove (he)(she) has been wrongfully identified.”  In the Duong case, because he did not request the instruction, the court could not reverse unless the judge’s failure to give the instruction was clearly erroneous.  Id. at 318.  Because the Supreme Court found that it would not have been “a real possibility” that the jury would have acquitted Duong, the failure to give the instruction was not a clearly erroneous mistake. 

If you believe that giving the eyewitness cautionary instruction could have changed your case, see Lindsey and Dionne at www.ericksonscherff.com for assistance.