Criminal Jury Instructions Arizona

In Arizona, a defendant generally is entitled to a jury instruction "on any theory reasonably supported by the evidence." State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277 (1982); accord State v. Rodriguez, 192 Ariz. 58, 16, 961 P.2d 1006, 1009 (1998); cf. State v. Linden, 136 Ariz. 129, 137-38, 664 P.2d 673, 681-82 (App. 1983) (even if court denies motion to suppress statements on voluntariness grounds, defendant entitled to voluntariness instruction "if the evidence has raised a question for the jury"). A trial court is not required to give a proposed instruction when its substance is covered adequately by other instructions. Rodriguez, 192 Ariz. 58, 16, 961 P.2d at 1009. However, the substance of the Dessureault instruction sets forth specific factors a jury should consider in assessing the reliability of identification evidence, and none of those factors are covered by general instructions on the burden of proof and the jury's role as fact-finder. Cf. Rodriguez, 192 Ariz. 58, 25, 961 P.2d at 1011 (characterizing general instructions about burden of proof as "poor substitute for a properly supported alibi instruction"). General instructions do not "warn the jury to take care in appraising identification evidence." Perry, U.S. at, 132 S. Ct. at 728-29. In making this assessment, a court must view the evidence in the light most favorable to the proponent of the jury instruction. See State v. King, 225 Ariz. 87, 13, 235 P.3d 240, 243 (2010); Rodriguez, 192 Ariz. 58, 20, 961 P.2d at 1010. "If there is evidence tending to establish the underlying theory of the instruction, the instruction must be given and any conflict between that and other evidence must be resolved by the jury." Starr v. Campos, 134 Ariz. 254, 255, 655 P.2d 794, 795 (App. 1982). Applying those standards in light of Perry's requirements, we conclude that defendants are entitled to a cautionary instruction when they have shown suggestive circumstances attendant to a pretrial identification that tend to bring the reliability of the identification testimony into question. See State v. Osorio, 187 Ariz. 579, 583, 931 P.2d 1089, 1093 (App. 1996) (Kleinschmidt, J., dissenting) (contending if "evidence raises any issue as to the effect of pretrial identification procedures on the in-court identification of the defendant as the perpetrator of the crime, the defendant is entitled to have a properly instructed jury decide that issue").