Indicting DNA instead of people

[Bricker]

The purpose of imposing a statute of limitations on prosecution is, as correctly noted above, to provide repose and to prevent an accused from being forced to answer stale charges so outdated they presumptively impede his ability to gather and present potentially exculpatory evidence.

When a prosecutor is permitted to indict a DNA profile, that goal is frustrated.

There can be no serious debate on that issue. When “John Q. Smith, of Villa Park, Illinois,” is indicted, he is on notice that he is accused. Indeed, an innocent man named has a great motive to step forward, if not in custody, and clear his name. The indictment NOTIFIES THE ACCUSED that he is charged with committing a crime.

When a DNA profile is indicted, no such notification occurs. The person - or persons - that match that DNA profile have no way of knowing they have been named.

Indicting DNA profiles eviscerates the legislative goals that led to the creation of limiting actions in the first place.

Now, the reason opinions are so mixed about this practice, notwithstanding the above, is that the assumption is that the accuracy of DNA profiling outweighs any potentially exculpatory evidence the accused might otherwise procure for his defense. In other words, we don’t mind this injustice, because we’re so sure we’ve got the right guy that it doesn’t matter when we try him - the evidence will convict him.

But that’s not true.

Without corroboration, DNA evidence merely proves that a particular person was in a particular place at some point before the sample was taken. The capacity of the accused to offer an innocent explanation for his presence his highly relevant, and highly evanescent. Even the smoking gun of DNA - semen collected as part of a rape kit - is not necessarily dispositive as to guilt. If the accused claims consent, the evidentiary value of the DNA is slight. But what would a tolling of fifteen or twenty years do to an accused’s ability to corroborate a legitimate consent defense with witnesses and other evidence?

The presence of a person’s fingerprint at a crime scene does not
compel the conclusion that the person in all reasonable likelihood
committed the crime. Still, courts have found that fingerprints alone are sufficient to establish probable cause and, in some cases, even proof beyond a reasonable doubt of a suspect’s guilt. Fingerprints are arguably a superior identification technique to DNA. Why have we never permitted fingerprint indictment?

Finally, there is the issue of speedy trial requirements to consider.

The general proposition is that the right to a speedy trial attaches at either the arrest or the filing of an indictment or information against the accused. The reason for this is that an arrest or indictment is a public act that subjects the accused to restrictions on his liberty and public shame and ridicule; it’s incumbent upon the government not to let that state of affairs languish.

Of course, as I said above, the DNA indictment does not suffer those ills. But if a DNA indictment does, in fact, describe a person, then it seems to me that technically, the speedy trial clock begins ticking.

In the Supreme Court case Doggett v. U.S., a man was indicted by a federal grand jury in 1980. Not knowing of his indictment, he moved from the US to Colombia. In 1981, he was arrested in Panama, but the US took no steps to extradite him, and he returned to Colombia. In 1982, he returned to the US, passed through immigration and customs with no problem, and lived a law-abiding life until 1988, when a routine credit check caused police to notice him and serve the arrest warrant.

In vacating Doggett’s conviction, the Supremes commented both on the fact that the government had taken no active steps to locate Doggett, and said:

…the negligent delay between Doggett’s indictment and arrest presumptively prejudiced his ability to prepare an adequate defense. The Government errs in arguing that the Speedy Trial Clause does not significantly protect a defendant’s interest in fair adjudication … Nor does Doggett’s failure to cite any specifically demonstrable prejudice doom his claim, since excessive delay can compromise a trial’s reliability in unidentifiable ways.

Just my thoughts…

• Rick

[godzillatemple]

*Originally posted by Hamlet *
**Now this is just plain silly. Of course DNA is a better way of identifying an offender than their name, aka, most recent address, or even their social security number. There is no “fishing” expedition, they know PRECISELY who they are looking for, much more precisely than a name or a fake address. The mere fact that it is not readily identifiable goes to the likelihood of arrest, not whether they have the right guy or not. So get off the high horse and try and deal with the facts. **

So, DNA accurates identifies the individual in question, without actually being readily identifiable. Identified, but not identifiable. Hoo boy, have YOU got a career in religion ahead of you!

Barry

[godzillatemple]

*Originally posted by Hamlet *
They know the guy who raped the woman or committed the crime, they just don’t know his name or how to identify him, but they know him. They haven’t caught him yet, and they don’t have any leads on how to catch him, but they do have an identifiable guy. They’ve identified him, but they haven’t caught him. Just like the hundreds of thousands of other criminals out there who they haven’t caught yet.

They don’t know how to identify him, and yet they have identified him?

Ah, it all makes sense to me now…

Barry

[Typo_Negative]

Originally posted by Bricker *
**
Without corroboration, DNA evidence merely proves that a particular person was in a particular place at some point before the sample was taken. The capacity of the accused to offer an innocent explanation for his presence his highly relevant, and highly evanescent. Even the smoking gun of DNA - semen collected as part of a rape kit - is not necessarily dispositive as to guilt. If the accused claims consent, the evidentiary value of the DNA is slight.*

And I assume that there’s a physical examination of some kind? Wouldn’t bruising and tearing (“consistant with rape” is the term used on TV programs) offer some corroboration?

[Hamlet]

A few points:

1. An indictment is not proof of guilt. The standard the prosecution must meet, in both regular indictments and DNA indictments is whether there is probable cause to believe a crime was convicted and the defendant committed it. The issues raised regarding DNA found at a bank robbery, house keys, and lack of corroboration are not relevant in a discussion limited to DNA profiles. Of course there is going to have to be more corroboration than just the biological sample before an indictment can be obtained, i/e somebody is going to have to testify she was raped, or a murder occurred and the killer left behind this blood. It’s not like they’re only using the DNA and nothing else. If an indictment isn’t supported by probable cause, regardless of whether it names the Defendant or has his DNA profile, it’s faulty. Since indictments that have just a name (and maybe not even the defendant’s real name) or even just read: “John Doe, a white male with black wavy hair and stocky build observed using the telephone in [a particular apartment]" have been found sufficient, then a specific enough DNA profile that is used to obtain an indictment should certainly be sufficient.

2. The discussion of speedy trials is also irrelevant to the issue of use of a DNA profile, because those concerns also arise no matter what kind of indictment you obtain. I’ll admit that I was taken aback by Bricker’s assertion that: “The general proposition is that the right to a speedy trial attaches at either the arrest or the filing of an indictment or information against the accused.” Putting aside the intricacies of speedy trial analysis, I’ve never heard of a single case where the speedy trial count started when the indictment was obtained, but nobody was arrested. Doggett is simply inapplicable because it specifically dealt with post-indictment delay and because the State had notice the Defendant was arrested and chose not to extradict. As a wise court said:”We note at the outset that the Sixth Amendment speedy trial right does not apply to claims of pre-indictment delay.” Doggett may apply if the prosecution got a hit on the DNA profile and chose not to pursue the defendant, but I’ve never heard of a court holding that the date of indictment, without more, is the date they consider of speedy trial purposes.

3. You needed two chances to make a quick-witted zinger, godzillatemple?

4. Bricker has a modicum of a point, however, when he asserts that the goal of giving the Defendant notice when he is charged with a a crime is somewhat frustrated by a DNA profile. I’ll put aside the obvious answer that he certainly had “actual” notice when he committed the crime. The Court in Dabney stated: Thus, although the DNA profile satisfies the particularity requirements in identifying a suspect whose name is not known, it would be helpful, for notice purposes, to also include any known physical appearance characteristics. The lack of a more particular physical description in this case, however, does not defeat the State’s argument.” I agree that any DNA indictment should contain physical descriptors also. However, as the Dabney court points out:

First, the fact that the original complaint and arrest warrant were issued as “John Doe” and contained only a DNA profile does not create any lack of “notice” issues. A defendant is not entitled to specific notice that the state is issuing a complaint and seeking an arrest warrant. “[A]n arrest warrant issues when it is signed by a judge with intent that it be executed and the warrant leaves the possession of the judge.” (Cite). Thus, the warrant is issued without any involvement from the defendant and the defendant is not provided with any notice of the underlying charge until the warrant is executed. Here, the warrant was not executed until Dabney’s name was substituted for “John Doe.” Thus, whether or not Dabney knew his specific DNA profile is irrelevant.

Although there is a point that the is a lack of notice to the Defendant, that is not a requirement for charging somebody with a crime and issuing a warrant. And requiring notice, which I don’t believe has ever been required, would cause an insane amount of problems.

And, finally, my apologies for my shortness of temper. A bad day at work and alcohol do not a happy poster make.

[CarnalK]

I’ll put aside the obvious answer that he certainly had “actual” notice when he committed the crime.

I’m glad you put it aside but it seems the presumed guilt of the DNA leaver is an underlying current to your posts. Imagine your brother facing a 25 year old rape charge for a perspective shift.

Out of curiosity: since the DNA profile could match thousands of people, what happens when they catch someone whose DNA is matched but it turns out after trial it’s the wrong guy. Is there still a indictment waiting for the next match they find?

[godzillatemple]

*Originally posted by Hamlet *
3) You needed two chances to make a quick-witted zinger, godzillatemple?

Nah. I just didn’t see your second post (which better illustrated the point I wanted to make) until after I had made my first snarky remark.

My point is that you seem to acknowledge that DNA evidence by itself (i.e., in the absence of some sort of universal DNA database) cannot actually be used to identify somebody, but then you keep claiming that it is, in fact, a valid (and accurate) form of identification. I think the most you can say is that DNA, while it may render somebody identifiable at some later date, is not currently a valid method of identification in and of itself.

Also, without a reference sample to compare the DNA evidence to, it’s usefulness as a form of identification is zero, the same way that the existence of a fingerprint does not, in and of itself, actually identify who the fingerprint belongs to. DNA, fingerprints, et al., can certainly prove that a person – once otherwise identified – was the person who committed a certain crime, but neither actually identify the person.

What’s next – an indictment that reads, “whoever the person is who committed this crime”? After all, if there is only one person who committed the crime, than this statement is an accurate identification of him according to your logic. All the police have to do is find the person who committed the crime and prove that he committed it, and the person will have retroactively been correctly identified in the indictment.

Since indictments that have just a name (and maybe not even the defendant’s real name) or even just read: “John Doe, a white male with black wavy hair and stocky build observed using the telephone in [a particular apartment]" have been found sufficient, then a specific enough DNA profile that is used to obtain an indictment should certainly be sufficient.

I don’t suppose you have a cite for a situation where a valid indictment actually read “John Doe, a white male with black wavy hair and stocky build observed using the telephone in [a particular apartment]” (or ambiguous words to that effect)? This really seems to be stretching things to me, but I’ll admit that I could be wrong. Assuming that such an indictment has been upheld as valid, though, I’m not convinced that it is really analogous to using a DNA profile.

Regards,

Barry

[godzillatemple]

it’s usefulness as a form of identification is zero

I really, really hate myself sometimes…

[Hamlet]

CarnalK, I’m not sure where you get the DNA profile could match thousands of people. In the Dabney case, the prosecutor indicted: “John Doe, unknown male, with matching deoxyribonucleic acid at genetic locations D2S44, D4S139, D5S110, D10S28, D184, and D17S79.” The Milwaukee Sentinel reported that the probability of finding another person with same profile as the assailant is at best 1 in 66,000,000,000,000,000,000. Cite.

And, although I couldn’t find the exact numbers for the New York indictments, this report stated: Manhattan District Attorney Robert Morgenthau said forensic scientists were able to glance at DNA material from three cases, but were unable to get DNA material from the other cases. But he said the DNA identification was so accurate that it would only fit one person in billions.

To answer your question though, if a person is tried under the indictment and acquitted, the indictment is finished, and cannot be refiled. It would be an interesting issue regarding possible double jeopardy implications, but legally the prosecutor would have to seek an new indictment if the old one was tried and acquitted.

[Hamlet]

*Originally posted by godzillatemple *
I don’t suppose you have a cite for a situation where a valid indictment actually read "John Doe, a white male with black wavy hair and stocky build observed using the telephone in [a particular apartment]"

United States v. Ferrone, 438 F.2d 381, 389 (3d Cir. 1971).

[Hamlet]

Oops, hit submit too soon. Ferrone involved a warrant, which actually has a stricter standard than an indictment.

[Roger_Mexico]

*Originally posted by spooje *
**And I assume that there’s a physical examination of some kind? Wouldn’t bruising and tearing (“consistant with rape” is the term used on TV programs) offer some corroboration? **

Hey Spooje, what an appropriate name!
I just saw an interview on Fox with a defense attorney. They were talking about the Kobe Bryant case and the issue of vaginal tearing came up, and whether that automatically implied rape. The defense attorney said, it depends. If it is at 6 o’clock, it could mean that the partner is too large. If it is at 10 oclock or a quarter to three, it could mean forcible entry. I was thinking what the hell is she talking about, when I realized she was referring to the vagina as a clock face (Zeros at 12 o’clock!). If this is accurate, how the hell do they know this? And what if the tearing is at 12 oclock or 7:15?

[blowero]

*Originally posted by Roger_Mexico *
quote:

Originally posted by spooje
And I assume that there’s a physical examination of some kind? Wouldn’t bruising and tearing (“consistant with rape” is the term used on TV programs) offer some corroboration?

Hey Spooje, what an appropriate name!
I just saw an interview on Fox with a defense attorney. They were talking about the Kobe Bryant case and the issue of vaginal tearing came up, and whether that automatically implied rape. The defense attorney said, it depends. If it is at 6 o’clock, it could mean that the partner is too large. If it is at 10 oclock or a quarter to three, it could mean forcible entry. I was thinking what the hell is she talking about, when I realized she was referring to the vagina as a clock face (Zeros at 12 o’clock!). If this is accurate, how the hell do they know this? And what if the tearing is at 12 oclock or 7:15?

It can certainly be used as evidence in a trial, but it doesn’t automatically prove it one way or the other. Surely nobody thinks justice would be served by automatically assuming any tearing or bruising means rape, or that its absence automatically means no rape. As Bricker so eloquently pointed out, the purpose of the SoL is to prevent the accused from answering stale charges. The DNA evidence only proves that the accused had sex with the accuser; whether it was rape is a matter to be determined at trial, and the more time that passes, the more the accused’s ability to defend himself is impaired.

[Roger_Mexico]

I stand corrected. It appears that the DNA profiling technology has advanced to the point where source attribution is possible.

“A sufficient number of highly polymorphic genetic markers can be typed from DNA derived from forensic biological samples such that in many cases the reciprocal of the random match probability exceeds the world population many fold. The magnitude of these estimates has approached the point where it is unlikely that two unrelated individuals carry the same type, and probabilities for related individuals, excluding identical twins, carrying the same type are remote. Once the rarity of a multiple locus profile is estimated (which, depending upon the scenario, may include the parameter q describing relatedness and/or conditional probabilities for relatives), objective criteria can be used to report that with reasonable scientific certainty a particular individual is the source of an evidentiary sample. Approaches are described to assess source attribution of an evidentiary profile and are illustrated for selected confidence levels and population sizes.”

http://www.fbi.gov/hq/lab/fsc/backissu/july2000/source.htm#Abstract

So the DNA profile by itself may now exceed the “beyond a reasonable doubt” standard for a conviction, and would certainly exceed the low standard needed for an indictment. I wonder if you can get a DNA profile from a ham sandwich?

[The_Ryan]

Hamlet

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.

Presumably, an indictment charging Cecil Adams would have some chain of evidence leading to his indictment, and it would therefore be implied that it is the Cecil Adams whose identity was revealed by that evidence who is being charged. For instance, if the indictment states that they know the culprit writes a weekly column, then it would be implied that “Cecil Adams” in the indictment means “Cecil Adams, the weekly columnist”. I very much doubt that an indictment based on nothing more than the finding of the phrase “Cecil Adams was here” at the crime scene would stand up. On the other hand, there is no form of identification in the case of DNA other than the DNA itself. There is no implied clarification of who it is, precisely because they don’t know.

Nope. [I would not you support an indictment against "the guy who committed this crime”]

But doesn’t not supporting that indictment allow people to get away with crimes by hiding their identity?

There is no “fishing” expedition, they know PRECISELY who they are looking for, much more precisely than a name or a fake address.

No more than they know who they are looking for when they say “we’re looking for the guy who did this”.

The Milwaukee Sentinel reported that the probability of finding another person with same profile as the assailant is at best 1 in 66,000,000,000,000,000,000.

That’s not a probability in the strict mathematical sense, since there is no known probability distribution. Rather, it’s a merely a subjective statement of confidence.
Blaron

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.

Why wait until the trial? Can’t he argue at the arraignment that the indictment refers to his brother?

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

That completely misses the context of my question. It followed a statement by Hamlet that “Just because a person committs [sic] a crime well enough to hide his identity shouldn’t mean he isn’t held accountable for it.” Therefore, the issue is not whether “we indict the guy who did it” is useful for identification, but whether it is useful for keeping people from getting away with crimes by hiding their identity. If this is being proposed solely on the basis of better identifying people, then Hamlet’s statement is irrelevant.

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

No, because it’s possible that someone that didn’t commit the crime would be included in the description. This is not possible with “the guy who committed the crime”. “the guy who committed the crime” refers only to the guy who committed the crime, and is therefore even more specific than DNA.

I look at it this way, your DNA is for all intents and purposes YOUR NAME.

No, there are a multitude of intents and purposes for which one’s DNA is not one’s name. And furthermore, these indictments do not include all the DNA.

[Hamlet]

*Originally posted by The Ryan *
Presumably, an indictment charging Cecil Adams would have some chain of evidence leading to his indictment, and it would therefore be implied that it is the Cecil Adams whose identity was revealed by that evidence who is being charged. For instance, if the indictment states that they know the culprit writes a weekly column, then it would be implied that “Cecil Adams” in the indictment means “Cecil Adams, the weekly columnist”. I very much doubt that an indictment based on nothing more than the finding of the phrase “Cecil Adams was here” at the crime scene would stand up. On the other hand, there is no form of identification in the case of DNA other than the DNA itself. There is no implied clarification of who it is, precisely because they don’t know.

I think you are confusing the probably cause standard and the “reasonable certainty” standard requirements for obtaining an indictment. Your Cecil Adams was here example clearly goes to whether or not there is probable cause, and if there isn’t, then the indictment, whether by name or by DNA, is deficient. However, an indictment based solely on a name, or even a John Doe indictment with descriptors, goes to the identification of the person who committed the crime.

A DNA indictment may not tell you the offenders name, address, or how to find the offender, but it most certainly identifies the defendant. It may not be very helpful for the officer on the street to arrest the offender, but it does identify who is charged with the offense , with a much higher degree of certainty than just a name. Every arrest based on an indictment and warrant cannot be served without additional information being obtained: the name, the social security number, etc., and DNA indictments are no different. It’s just a more in-depth investigation is necessary.

*Originally posted by The Ryan *
But doesn’t not supporting that indictment allow people to get away with crimes by hiding their identity?

Sure. Oddly enough, I never meant my prior statement to be an absolute. I also don’t support random DNA checks, house searchs without warrants, and arrests without probably cause. All of those would cut down on the guilty people going free also. Go figure.

*Originally posted by The Ryan *
No more than they know who they are looking for when they say “we’re looking for the guy who did this”.

This is just wrong. Once again, there is a difference between knowing who committed a crime and knowing what he looks like, where he was born, and how to catch him.

*Originally posted by The Ryan *
That’s not a probability in the strict mathematical sense, since there is no known probability distribution. Rather, it’s a merely a subjective statement of confidence.

It’s an objective statement of confidence, and when we’re talking one in billions, that’s pretty confident.

*Originally posted by The Ryan *
No, because it’s possible that someone that didn’t commit the crime would be included in the description. This is not possible with “the guy who committed the crime”. “the guy who committed the crime” refers only to the guy who committed the crime, and is therefore even more specific than DNA.

And as I said before, “the guy who committed the crime” would fail the reasonable certainity requirements for indictments. The better comparison would be which would be a better descriptor of the person who committed the crime: a) His specific DNA profile with a 1 in billions confidence level, or b) John Smith. If I were John Smith, I’d think I’d rather that the DNA indictment.

*Originally posted by The Ryan *
No, there are a multitude of intents and purposes for which one’s DNA is not one’s name.

Yeah, people can fake their names, people can change their names, people can use aliases, and multiple people can have the same name. You can’t do that with your DNA.

*Originally posted by The Ryan *
** And furthermore, these indictments do not include all the DNA. **

It’s completely unnecessary to include ALL the suspects DNA before identification is possible.

[CarnalK]

Well seeing as DNA profiling seems better now than I remember I’ll change my stance. If it can clearly be shown a good sample was taken and they can directly link the DNA to a crime(the easiest being a violent rape) then I guess thats good enough for indictment.

Are these particular cases hampered at all by 10 yr old collection methods? I seem to remember there used to be a lot more lab contaminations through now improper procedures.

[Shade]

*Originally posted by Hamlet *
**CarnalK, I’m not sure where you get the DNA profile could match thousands of people. In the Dabney case, the prosecutor indicted: “John Doe, unknown male, with matching deoxyribonucleic acid at genetic locations D2S44, D4S139, D5S110, D10S28, D184, and D17S79.” The Milwaukee Sentinel reported that the probability of finding another person with same profile as the assailant is at best 1 in 66,000,000,000,000,000,000. Cite.
**

I couldn’t get through to your cite

I always have problems with probabilities - is 1 in 66x10[sup]18[/sup] the probability that there is another person with the same profile, or that a person picked at random is? (Not that it makes much difference I suppose with that high a number.)

[David_Simmons]

I suppose if DNA anaysis methods are as good as is claimed, then a particular individual can be identified with precision that is probably adequate, not only for an indictment but for a conviction if the individual can be found.

However, I think it’s important to remember that labs can only analyze what is brought to them. For example, a detective kept blood samples in the Simpson case in his car overnight. The police forensic crime scene investigator was one of their relatively inexperienced people and the prosecution’s DNA expert was shown, on the witness stand, to have made some mistakes in arithmetic.

DNA evidence, like everything else is the result of a process involving several steps and a lot of people. All of the steps must be done properly or it won’t work and this means proper training and an adequate number of people to do the job. And that means taxes which most people are unwilling to pay.

[godzillatemple]

Hamlet: I’ll admit to being ignorant of the relevant case law here. In instances where a “John Doe indictment with descriptors” was used, did they actually have a person in custody (i.e., who refused to give his name), or was that indictment used against somebody the police had not located yet?

Barry