News on Use of DNA Evidence in New York and California
There’s news about the use of DNA evidence in New York and California. In New York, “Under a state rule approved in December, DNA found at a crime scene that does not exactly match that of someone in the state’s DNA database can still be used to pursue suspects if the DNA closely resembles that of someone on file.” This type of DNA matching, called “familial searching,” is controversial because the “near-match” person is not suspected — but that person’s relatives are. ”Since family members share genetic traits, a partial DNA match allows investigators to narrow searches to relatives of people whose DNA is already in the state database, forensic experts say,” according to the New York Times.
New York’s rule, which was approved by the state’s Commission on Forensic Science and is expected to take effect in the spring, will allow forensic investigators working for the State Police to share information about partial matches with local law enforcement agencies.
Law enforcement officials say the policy frees forensic scientists from sitting on potentially valuable evidence that they had not been able to turn over to local police departments. [...]
The commission’s approval came despite arguments from the New York Civil Liberties Union that the rule should have been put before the State Legislature.
“It’s quite clear that the commission is adopting a fundamental change in law enforcement,” said Robert Perry, legislative director of the civil liberties union. “By definition, the commission has relaxed the standard of precision regarding the use of DNA evidence.”
(In an article last year, Jeffrey Rosen, a professor at George Washington University Law School and the legal affairs editor at the New Republic, explained increasing pressure for the expansion of familial searches of DNA databases.)
In California, the state Supreme Court has authorized the use of no-name, “John Doe” warrants that are based on an unknown suspect’s DNA profile in a 5 to 2 ruling in The People v. Paul Eugene Robinson (pdf). The DNA profile is specific enough to justify an arrest warrant, the court concluded. The Modesto Bee explains the background of the case:
Deputy District Attorney Anne Marie Schubert, at the urging of now-retired Sacramento Police Department Detective Pete Willover, filed a complaint Aug. 21, 2000, four days before the deadline, against an unknown individual who had left DNA at the Natomas scene of a sexual assault.
The individual was charged with the 1994 rape only by genetic makeup – a series of almost 200 letters, numbers and parentheses. The next day’s arrest warrant identified him as “John Doe, male black.”
Twenty-five days later, an analysis of Robinson’s DNA resulted in a “cold hit” match with the DNA obtained from the semen recovered from the rape victim.
Not only had the statute of limitations passed, the 1999 blood sample from [Paul Eugene Robinson] that matched the semen turned out to be an unlawful draw.
Justice Ming W. Chin wrote in the opinion, “We conclude that, when there is no more particular, accurate, or reliable means of identification available to law enforcement, an arrest warrant or a complaint that describes the person to be arrested by a fictitious name and his unique DNA profile, or incorporating by reference an affidavit containing such a unique DNA profile, satisfies the particularity requirements of the Fourth Amendment, the California Constitution, and subdivision (d) of section 804.”
In a dissent joined by Justice Kathryn Mickle Werdegar, Justice Carlos Moreno wrote, “the original arrest warrant filed in this case was not a true warrant because it did not actually authorize the arrest of anyone; it was a clever artifice intended solely to satisfy the statute of limitations until the identity of the perpetrator could be discovered. When this occurred, through a ‘cold hit’ match of the defendant’s DNA, the arrest warrant was amended to reflect the defendant’s name and only then, after the statute of limitations had expired, did the warrant become effective and permit defendant to be arrested.”
Moreno also wrote that this ruling “will permit this type of sham arrest warrant to be used to circumvent the statute of limitations in any criminal prosecution in California in which biological evidence is left at the crime scene from which DNA can be extracted. Our ruling is not limited to situations like the present case in which DNA is extracted from semen recovered from a rape victim. It would apply equally if a human hair is found at the crime scene from which DNA can be extracted, or if the suspect left blood at the scene. And it is not limited to cases involving a sexual assault. Thus, the prosecution can effectively circumvent the statute of limitations in any case in which the police happen to find DNA evidence linking a suspect to the crime.”
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