Indicting DNA instead of people

Great Debates
1

From the New York Post

This is pretty much self-explanitory. The DAs are going to seek indictments from grand juries when they do not have a real suspect, only a DNA profile. They are pursuing this because there is no statute of limitations problem once an indictment is secured. If they ever find the person and match up the DNA, even 20 years from now, that person can be arrested and convicted of the crime.

Now, I’m all for making sure that criminals don’t get off on technicalities, but the statute of limitations isn’t, IMHO, a technicality. There is a reason the statute is in place. The Supreme Court even struck down a measure by CA recently to retroactively change their statute of limitations.

I think this is a completely transparent attempt to circumvent the law, and violate the entire idea of a statute of limitations. What do you think about it?

Thankfully, they’re in the process of changing the law, to remove the statute from these felonies. Not so thankfully, as I’ve found out, Gov. Pataki proposed the law Feb 2000, and the state senate passed the law June 2003, go NY!

2

Hm.

Kind of an interesting idea, actually.

Is it possible to indict someone based on an identification profile of some sort?

Can they indict “The Person Whose Fingerprints These Are, That We Found On The Murder Weapon?”

Could they indict me if all they had was my name?

Could they indict “The SDMB Poster Known As Wang-Ka,” for that matter?

If they can, then I can’t see much difference in indicting someone based on an information profile that matches ONLY that person…

3

Can they indict someone if all they have is a name and a photograph?

4

I am surprised anyone would be against using DNA profiles to indict rapists, but, I’m surprised by a lot of things. I see no compelling reason to disallow an indictment of a person just because that person was smart enough to avoid being positively identified by name. And that’s what we are talking about here. The indictments are obtained within the proper Statute of Limitations, the only difference is that the defendant hasn’t been identified by name. I really don’t see the problem. I would also agree with the majority of Courts which have held that the Statute of Limitations is not a “fundamental right” but rather a legislatively created artifice. As such, I don’t believe indictments based only on DNA profiles should be struck down.

To answer some of Wang-Ka’s questions, an indictment must be “sufficient to identify the defendant with reasonable certainty.” Most every Court, and myself, agree that it is hard to get a better, more specific identifier than the DNA profile. While an indictment that simply identifies the defendant as “John Doe” without further identifiers is insufficient, a brief particular identifier may be enough, i/e John Doe, 6’1", m/w, brown hair, hazel eyes, with a Mom tattoo on the left shoulder would be sufficient enough. I know of no case involving indictments solely on the basis of fingerprints, but I would imagine it would be sufficient. They could certainly indict you based solely on your name, but they would probably could not do it based on your SDMB alias without more. Nor could they indict somebody for a crime and charge them as " The person who committed this crime."

We can take a look at State v. Dabney, 663 N.W.2d 366 (Wis.App.,2003.) which was just decided earlier this year. The Court looked at whether the DNA indictment “satisfies the particularity and reasonable certainty requirements” They then discussed other cases where the defendant was not identified by name, but by descriptions, and found that: "We conclude that for purposes of identifying “a particular person” as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible. "

The Court then went on to discuss the Statute of Limitations issue and found that he was indicted before the 6 years, so it was fine. They went on to discuss the alleged attempts to circumvent the SofL, and said: “First, we note that the protection afforded by the statute of limitations “is not a fundamental right” of a criminal defendant. … Rather, it is a statutorily created right, whose primary purpose is to “protect the accused from having to defend himself against charges of remote misconduct.” That purpose has not been violated here.”

Finally, Dabney asserted that the DNA warrant violated his Due Process rights. Once again, the court found that it didn’t. His conviction was upheld. Poor guy. Maybe he won’t rape 15 year old girls at gunpoint anymore.

I fully support the use of these kinds of indictments and I would like to see other states follow California and Wisconsin’s lead and legislate so as to remove all questions of their propriety. And, lest you think I’m too strict, I also believe that if a Defendant can show that the DNA indictment violated his Due Process rights, then the case should be dismissed. I just think that it shouldn’t be dismissed based on the Statute of Limitations argument.

5

If you don’t mind, what does this mean in layman’s terms? Obviously, the statute is there to protect the accused from SOMETHING, I’m wondering now what exactly that something is.

I mean, the accused would still have to defend himself with respect to a old crime, regardless of when the indictment is technically brought about. He’s not informed of the indictment in any way, and can’t start to prepare a defense until he is informed, at an unspecified time in the future. 30 years after the crime he’ll be asked to put up a defense?

6

oops, meant to hit preview, not submit. Anyway…

The SofL is there to provide protection to the accused, I would think that we’d look at the situation from the accused’s standpoint. From his standpoint, there is absolutely no difference between getting the indictment within the SofL and getting the indictment years after the SofL runs out, he’s not informed in either case until long after it runs out. He’s lost the protection of the SofL without even knowing it, that just doesn’t seem right if he is the person supposedly protected.

I also think that we have the right to a ‘speedy’ trial, the accused can apparently be indicted but not tried (or even informed) for decades, that hardly seems speedy to me.

7

I think Cheesesteak is right on. It’s clearly circumventing the SoL, court rulings to the contrary notwithstanding. Of course, the point is too easily obfuscated by a disingenuous appeal to emotion, i.e. - “Oh, well you must be in FAVOR of rapists.”

You’ll notice that these DNA databases and such never get smaller, they only grow. I personally am already fingerprinted - not because I committed a crime, but because I was required to be as a condition of employment. It doesn’t take a big stretch of the imagination to see fingerprinting replaced by DNA testing, and high-security, government, and teaching jobs expanded to all jobs, and from there a national database of everyone’s DNA. And then if you can be indicted in absentia to circumvent the statute of limitations…:eek:

But if anyone objects, it’s simple to say, “Well, you must be in FAVOR of crime, eh?”

I know, I know…“slippery slope argument”. This time I can really envision it happening, though.

8

Hamlet: I agree with your sentiments insofar as we are talking about rapes here, but that’s only because I strongly feel that the Statute of Limitations should not apply to serious crimes such as rape in the first place. Rather than using DNA to circumvent the Statute, a better way (which is apparently underway) would be to simply rewrite the Statute.

Let’s say, for example, that I committed a crime of lesser severity and left behind some hairs or skin samples that could be used to create a DNA profile. I don’t know, maybe I stole a little old lady’s purse. Should the Statute of Limitations prevent the police from finally prosecuting me for the crime 30 years later, or should the fact that they have my DNA allow them to keep the case open indefinitely until they one day find the person who matches that DNA profile?

I think, by the way, the Statute has two main purposes. One is an acknowledgement that it is unfair to require a defendant to provide come up with suitable evidence to clear his name after a certain amount of time has past. The other is an acknowledgement that living with having a crime is a form of punishment in and of itself, and that this supposed mental anguish can eventually equal any punishment a court could impose for non serious crimes.

Regards,

Barry

9

Well, if there were a national database of everyone’s DNA, I don’t think the SoL would even be an issue. As soon as the DNA was tested, they would be able to plug it into the database and your name would pop out.

In the case in question, they have the DNA but no clue who it belongs to. They’re just hoping that someday they MIGHT find out who it belongs to.

Unless, of course, you mean that if they indict now, then one day they will be able to determine the identity of everybody who’s DNA was indicted using the DNA database…

Barry

10

As a general rule, Statutes of Limitations are laws enacted that proscribe when a crime must be charged by the prosecution. It’s roughly one year for misdemeanors, 3 for lesser felonies, 6 for major felonies, and no limitation on murder and other heinous crimes. The general rule is if the charge is brought (i/e indictment or complaint) before the time limit, the charge will stand. If it is brought afterwards, it will be dismissed.

The main rationale behind Statutes of Limitations is to protect the defendant from pre-indictment delay. Legislatures were, and are, concerned that bringing “stale” charges inhibits the defendant’s ability to defend himself by evidence degradation, failure of witnesses memory, and other evidentiary issues. They were also concerned that a defendant should eventually have the piece of mind knowing they can’t be charged with a criminal offense… SoL’s act as a specific, quantifiable, and set time for the bringing of charges, in an attempt to create a irrebutable presumption of when a defendant won’t be able to get a fair trial. They are not concerned in the least with specific cases, or whether or not the defendant’s ability to mount a defense was, in reality, inhibited.

However, there is another challenge a defendant can raise and that is that facing a very old charge, even if it was brought within the SoL, would violate his Due Process rights. If the defendant can show that the delay "caused substantial prejudice to appellee’s rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused”, then the charge will be dismissed.

I feel that the Due Process clause is the much better tool for determining these issues, and for addressing your concerns. Simply because a defendant, like Dabney, committed an offense and moved on should not mean he is not held accountable for the crime. If it is 30 years after he committed the crime and he can’t show a Due Process violation, why shouldn’t he be tried? Just because he didn’t drop his wallet or give his real name shouldn’t let him escape justice.

11

Well blowero, in your nightmare scenario if we would have everyones DNA on file then indicted in absentia won’t be neccessary as we’ll know who’s DNA it is.

Or am I being whooshed?

12

But if you feel that way, shouldn’t the SoL be changed rather than circumvented?

13

Yes, that’s a good point. (It was a good point when Barry made it, too.):wink:

14

From the DA’s perspective this is a can’t lose situation; even if the indictments don’t hold up in court, well, they’d have lost them anyway when the SoL ran out. Still, I see problems. DNA may be precise, but our method of testing it isn’t necessarily, as recent problems here in Harris County have shown. What’s actually being indicted here is not a person, but a profile. A technician takes a DNA sample from a crime scene, and a grand jury indicts the person who has that DNA. When you find a suspect, you test that persons DNA against the DNA profile you’ve made from the crime scene and apply principles of population genetics to prove a match mathematically. One of the cases currently being investigated here involved a man who pleaded guilty to sexual assault of a child due to evidence that showed a 1 in 5,000,000 match, which would tend to prove that no one else in Harris County would have the same profile. Later investigation into botched procedures in the DNA lab showed a 1 in 6,000 match, meaning more than 500 people in Harris County could have that profile. I don’t think even the original would have stood up as an indictment; almost 60 people in America would have made that match.

15

Sure. Ideally I’d do away with the Statute of Limitations on sexual assault cases, and that’s what some state’s have done. I’d also support legislation that specifically allows the use of DNA indictments.

We may be arguing semantics here, but I don’t see DNA indictments as “circumventing” the Statute of limitations, the defendant is still charged, we know his identity with even greater specificity than just a name, we just don’t know his name, address, etc. that is usually on the indictment.

The use of DNA indictments are another step in the use of “John Doe” indictments when a defendant’s precise identity isn’t know. They’ve been using them for a hundred years, and I think rightly so. Just because a person committs a crime well enough to hide his identity shouldn’t mean he isn’t held accountable for it. Unless his Due Process rights are violated, then I believe the charge should stand.

16

This makes sense to me, but I don’t think that the indictment itself mitigates these issues in the slightest bit. They don’t really know who the defendant is, but they’ll toss an indictment out there to keep the charges ‘fresh’. The charges are really just as stale as if there were no indictment, but that administrative step is enough to keep this (and any other type of crime) from SofL concerns.

Please note that this tactic can be used on ANY sort of crime, it needn’t be just for rape or sexual assault. It’s deemed acceptable because the crimes are heinous, what if they use it on petty thefts and other lesser crimes?

17

Your problem, Cheesesteak seems to be more with potential problems with Due Process than SofL. You’re absolutely correct that the SofL is, at it’s most basic, an administrative step. And that is all it is suppossed to be. SofL is, as I described before, a formality of charging a defendant and does not concern itself with fairness. That’s one of the reasons why I don’t have much problem with “circumventing” it.

The tactic may certainly be used on any lesser crimes also. If you steal a candy-bar and leave behind DNA, and the powers that be decide to charge your DNA profile, there’s no SofL issue (and I hope I don’t have to explain why this would never happen. I have a hard enough time getting DNA on sexual assaults done). However, your concerns can certainly be addressed by the Due Process analysis I outlined above.

18

I’m surprised no one’s mentioned identical twins. Don’t they present a problem?

Hamlet

So would you support an idictment against “the guy who committed this crime”?

19

In proving the case, possibly, but not, I think, for Statute of Limitation purposes. If an indictment is O.K. charging Cecil Adams, and there are hundreds of people named Cecil Adams, I think the DNA indictment would be fine.

Nope. As I stated before in my very first post that would not be fine. I also don’t think we should be charging people with speeding 25 years after the fact either, so there you go.

20

Possibly… but in those instances the defendant could raise the defense that it can’t be proven beyond a reasonable doubt that he committed the crime as opposed to his brother.

deep breath

(Get yourself together Blalron, don’t commit the Sin of Collounsbury!)

I’ll explain this very carefully… saying “we indict the guy who did it” is useless for identifying who we are accusing.

DNA, on the other hand, is about as specific as you can get in identifying somebody.