News
Criminal
Feb. 25, 2002
DNA Evidence Is Vital for Both The Prosecution and the Defense
Focus Column - By Laurie L. Levenson - One of the hottest areas of criminal law is the use of DNA evidence in criminal cases. Genetic testing is being used to both convict and exonerate defendants. DNA testing has freed more than 80 wrongfully convicted prisoners throughout the United States. DNA matches are now routinely being used to identify perpetrators in criminal cases.
Focus Column
By Laurie L. Levenson
One of the hottest areas of criminal law is the use of DNA evidence in criminal cases. Genetic testing is being used to both convict and exonerate defendants. DNA testing has freed more than 80 wrongfully convicted prisoners throughout the United States. DNA matches are now routinely being used to identify perpetrators in criminal cases. See, e.g., People v. Snow, 2002 Cal.App.LEXIS 1653 (Cal. App. Feb. 15, 2002).
New federal and state legislation has been enacted to collect DNA for law enforcement's scientific databanks. Recently, the Administrative Office of the U.S. Courts issued a memorandum to all probation officers detailing new federal DNA collection requirements. Probation officers, working together with the Bureau of Prisons, will be responsible for ensuring that convicted offenders cooperate in the national effort to expand DNA databases.
Under 18 U.S.C. Sections 3563(a)(9) and 3583(d), authorities must collect DNA from any offender who has committed a "qualifying offense." These offenses include homicide, sexual abuse, slavery and peonage, kidnapping, robbery or burglary, maiming, incest, arson, any felony where jurisdiction was based on the offense being committed within Indian territory, and any conspiracy to commit these offenses. Additionally, any offender who has a previous conviction for any of these offenses must submit a DNA sample.
Under federal law, DNA samples must be blood samples and must be submitted together with the defendant's fingerprints. Although probation and prison officials are on the front line of collecting these samples, the FBI ultimately receives and processes specimens. The DNA profiles are included in the Combined DNA Index System, a national database of DNA profiles of convicted offenders.
While some have suggested that law enforcement collect DNA samples from all arrestees, federal authorities have yet to implement such a system. Not only would such a move raise substantial civil liberties concerns, it is also impractical.
Approximately 12 million people are arrested in the United States every year. There remains a backlog of close to 500,000 unanalyzed samples collected from convicted offenders, and there are perhaps up to 1 million samples yet to be collected. Even if funding could be obtained to cast a wide dragnet of DNA collection, the reality is that the additional information would still be slow in finding its way into the national databases.
As a result of a grant of funds in late 2000, California is one of seven states starting to catch up on the backlog of DNA collecting and profiling. Prior to October 2001, California law required only persons found guilty by reason of insanity and registered sex offenders to provide DNA samples.
However, urgency legislation passed at the end of 2001 expanded the list of offenders who must submit to DNA testing and provided funding for increased DNA collection and testing.
Under current California law, a wide range of offenders must submit DNA samples. Penal Code Section 296. These include people convicted of murder, voluntary manslaughter, felony spousal abuse, assault or battery, kidnapping, mayhem, torture, burglary, robbery, arson or carjacking and any person who is required to register as a mentally disordered sex offender. In addition to blood samples, state offenders also must provide saliva samples, along with hand and fingerprints.
Even juveniles convicted of these offenses must submit DNA samples, as must those defendants who have been granted probation or who are confined in county jail. Section 296.1(a). The law also requires testing of defendants who are released on parole or furlough if they are returned to a state correctional institution. Section 296.1(g).
Failure to provide a required DNA sample is a separate criminal offense, punishable by one year in jail and a fine. Section 298.1.
Although states are busy collecting DNA information, only a few states provide easy access to defendants who wish to use this information to challenge their convictions.
In California, a person who was convicted of a felony and is currently serving a term of imprisonment can make a written motion before the court that issued the judgment of conviction requesting DNA testing. See Penal Code Section 1405. An indigent offender may request appointment of counsel to help prepare a motion for DNA testing. The motion must state that the defendant was not the perpetrator of the crime and explain why DNA testing is relevant to the defendant's assertion of innocence.
A defendant may be able to get counsel to assist with a DNA motion, but the law carefully states that the appointment of counsel does not extend to assistance with the defendant's post-conviction collateral proceeding. Section 1405(b)(4). In other words, a defendant can get help obtaining DNA testing but is on his or her own in using that evidence to challenge a conviction.
There are other limitations on the availability of DNA testing for exculpatory purposes. A judge is only required to grant a request for DNA testing if the defendant establishes that the evidence is still in a condition to be tested; that there is a sufficient chain of custody to show the evidence has not been altered; that identity was a significant issue in the case; that there is a prima facie showing that the evidence is material to the identity of the perpetrator; that the requested DNA testing results would raise "a reasonable probability that, in light of all the evidence, the convicted person's verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of the conviction"; that the evidence was not previously tested or, if tested, not with the sophistication of currently available DNA tests; that the requested testing is generally accepted within the relevant scientific community; and that the motion is not made solely for purposes of delay. Sections 1405(f)(1) through (8).
These requirements can pose significant hurdles for defendants. If law enforcement has not properly safeguarded evidence from a crime scene, it may not be in a condition to be tested. See generally Section 1417.9 (rules regarding retention of biological materials).
Moreover, even before a defendant can request testing, he must show that other evidence indicates that the test results are likely to exonerate him. Thus, while DNA testing is available, it will only be practically useful in close cases where there was already significant evidence indicating that the defendant was not the perpetrator.
DNA testing is the wave of the future, but it is still relatively difficult for defendants to access the information that they need to prove their innocence. For the criminal justice system, the focus has been on creating procedures to collect DNA samples. The real test will be in making those samples available to both sides - prosecution and defense - to ensure that the guilty, and only the guilty, are held responsible for their crimes.
Laurie L. Levenson is professor of law and William M. Rains Fellow at Loyola Law School in Los Angeles.
By Laurie L. Levenson
One of the hottest areas of criminal law is the use of DNA evidence in criminal cases. Genetic testing is being used to both convict and exonerate defendants. DNA testing has freed more than 80 wrongfully convicted prisoners throughout the United States. DNA matches are now routinely being used to identify perpetrators in criminal cases. See, e.g., People v. Snow, 2002 Cal.App.LEXIS 1653 (Cal. App. Feb. 15, 2002).
New federal and state legislation has been enacted to collect DNA for law enforcement's scientific databanks. Recently, the Administrative Office of the U.S. Courts issued a memorandum to all probation officers detailing new federal DNA collection requirements. Probation officers, working together with the Bureau of Prisons, will be responsible for ensuring that convicted offenders cooperate in the national effort to expand DNA databases.
Under 18 U.S.C. Sections 3563(a)(9) and 3583(d), authorities must collect DNA from any offender who has committed a "qualifying offense." These offenses include homicide, sexual abuse, slavery and peonage, kidnapping, robbery or burglary, maiming, incest, arson, any felony where jurisdiction was based on the offense being committed within Indian territory, and any conspiracy to commit these offenses. Additionally, any offender who has a previous conviction for any of these offenses must submit a DNA sample.
Under federal law, DNA samples must be blood samples and must be submitted together with the defendant's fingerprints. Although probation and prison officials are on the front line of collecting these samples, the FBI ultimately receives and processes specimens. The DNA profiles are included in the Combined DNA Index System, a national database of DNA profiles of convicted offenders.
While some have suggested that law enforcement collect DNA samples from all arrestees, federal authorities have yet to implement such a system. Not only would such a move raise substantial civil liberties concerns, it is also impractical.
Approximately 12 million people are arrested in the United States every year. There remains a backlog of close to 500,000 unanalyzed samples collected from convicted offenders, and there are perhaps up to 1 million samples yet to be collected. Even if funding could be obtained to cast a wide dragnet of DNA collection, the reality is that the additional information would still be slow in finding its way into the national databases.
As a result of a grant of funds in late 2000, California is one of seven states starting to catch up on the backlog of DNA collecting and profiling. Prior to October 2001, California law required only persons found guilty by reason of insanity and registered sex offenders to provide DNA samples.
However, urgency legislation passed at the end of 2001 expanded the list of offenders who must submit to DNA testing and provided funding for increased DNA collection and testing.
Under current California law, a wide range of offenders must submit DNA samples. Penal Code Section 296. These include people convicted of murder, voluntary manslaughter, felony spousal abuse, assault or battery, kidnapping, mayhem, torture, burglary, robbery, arson or carjacking and any person who is required to register as a mentally disordered sex offender. In addition to blood samples, state offenders also must provide saliva samples, along with hand and fingerprints.
Even juveniles convicted of these offenses must submit DNA samples, as must those defendants who have been granted probation or who are confined in county jail. Section 296.1(a). The law also requires testing of defendants who are released on parole or furlough if they are returned to a state correctional institution. Section 296.1(g).
Failure to provide a required DNA sample is a separate criminal offense, punishable by one year in jail and a fine. Section 298.1.
Although states are busy collecting DNA information, only a few states provide easy access to defendants who wish to use this information to challenge their convictions.
In California, a person who was convicted of a felony and is currently serving a term of imprisonment can make a written motion before the court that issued the judgment of conviction requesting DNA testing. See Penal Code Section 1405. An indigent offender may request appointment of counsel to help prepare a motion for DNA testing. The motion must state that the defendant was not the perpetrator of the crime and explain why DNA testing is relevant to the defendant's assertion of innocence.
A defendant may be able to get counsel to assist with a DNA motion, but the law carefully states that the appointment of counsel does not extend to assistance with the defendant's post-conviction collateral proceeding. Section 1405(b)(4). In other words, a defendant can get help obtaining DNA testing but is on his or her own in using that evidence to challenge a conviction.
There are other limitations on the availability of DNA testing for exculpatory purposes. A judge is only required to grant a request for DNA testing if the defendant establishes that the evidence is still in a condition to be tested; that there is a sufficient chain of custody to show the evidence has not been altered; that identity was a significant issue in the case; that there is a prima facie showing that the evidence is material to the identity of the perpetrator; that the requested DNA testing results would raise "a reasonable probability that, in light of all the evidence, the convicted person's verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of the conviction"; that the evidence was not previously tested or, if tested, not with the sophistication of currently available DNA tests; that the requested testing is generally accepted within the relevant scientific community; and that the motion is not made solely for purposes of delay. Sections 1405(f)(1) through (8).
These requirements can pose significant hurdles for defendants. If law enforcement has not properly safeguarded evidence from a crime scene, it may not be in a condition to be tested. See generally Section 1417.9 (rules regarding retention of biological materials).
Moreover, even before a defendant can request testing, he must show that other evidence indicates that the test results are likely to exonerate him. Thus, while DNA testing is available, it will only be practically useful in close cases where there was already significant evidence indicating that the defendant was not the perpetrator.
DNA testing is the wave of the future, but it is still relatively difficult for defendants to access the information that they need to prove their innocence. For the criminal justice system, the focus has been on creating procedures to collect DNA samples. The real test will be in making those samples available to both sides - prosecution and defense - to ensure that the guilty, and only the guilty, are held responsible for their crimes.
Laurie L. Levenson is professor of law and William M. Rains Fellow at Loyola Law School in Los Angeles.
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