Natty Shafer Law

Utah lawyer for criminal and immigration cases

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DNA Can Be Taken for ‘Serious Crimes;’ What’s Next?

This Monday, the Supreme Court ruled that states may collect DNA from people who have been arrested for “serious crimes.” By itself, the case of Maryland v. King is only somewhat concerning if the Court stays true to its word, but, as with many precedents, the Court could build on it. The Court did not define what “serious crimes” are, which leaves open the possibility of nearly any crime being defined as “serious.” After all, our elected leaders thought the crimes were serious enough to make them illegal. In the future, public intoxication might be considered serious.

Incidentally, I do not take a “slippery slope” argument lightly. Sometimes people see a slippery slope where there really is not one. There can be many intermediate points before a supposed inevitable conclusion. What do I mean? Consider a hypothetical city considering raising its speed limit by five miles per hour on a 4 lane thoroughfare. Those in favor of the increase argue that it can be done safely and improve traffic flow. Those against it argue that if they raise the speed limit 5 mph, there is no end to how high it can be raised, and pretty soon people will be driving 65 mph on a city street. Here, the slippery slope argument is fallacious because each time the city raises the speed limit, a new assessment of safety and speed would be in order.

On this particular issue, however, I believe I am on safe ground to wonder if the Court is treading on a slippery slope. The only guidance the Fourth Amendment gives on the issue of search and seizure is that it must not be “unreasonable.” With such flimsy guidance, the Court has walked down the slippery slope before and in essence said, “we took a step along this path before and that was not unreasonable so it is not unreasonable to take one more step.”

The new rule only negatively affects the people who would have been acquitted of their crimes. In Maryland v. King, the defendant Alonzo King was convicted of assault. It was only a matter of time until Maryland took his DNA as a result of his conviction. Now, everyone who is arrested for a serious crime—whatever that is—might have their DNA information permanently on file. Soon, it will be possible to use that information to implicate a family member as well as the arrestee. Since people related biologically share several DNA markers, it is only a matter of time until someone is held on a serious crime, acquitted, and then unknowingly implicates their loved family member. It is a good bet that a judge will find “probable cause” to take DNA samples of everyone who could be guilty.


Science and Forensics, Part 1: Introduction

The criminal justice system has a problem. No one knows just how reliable some types of forensic evidence are. These forensic fields were developed by crime investigators instead of by scientists. Not only haven’t they been proven to be reliable, there’s a question of whether or not they’re based on science at all. Some of them are better classified as superstition, but the criminal justice system has been slow to weed them out.

Bad forensic evidence usually makes its way into Utah courtrooms through expert testimony. Someone can testify about their credentials—frequently from spurious colleges or organizations—and then the court certifies them as an expert in a particular field. Under the Utah Rules of Evidence, judges are supposed to prevent experts from testifying about junk science. Utah Rule 702 governs expert testimony, and judges are required to make sure that the specialized knowledge that the expert purports to have is “reliable,” “based upon sufficient facts or data,” and has been “reliably applied to the facts.” Most judges do not have the expertise necessary, however, to determine if an expert’s testimony actually meets that criteria.

In a previous post, I argued that juries demanding that forensic evidence accompany eyewitness testimony has been a positive trend for criminal justice. I still believe that, but it’s also important that hard science support all forensic testimony.

The best forensics were developed independently from crime investigation and have other applications. DNA evidence is the gold standard for good forensic evidence. Everyone has DNA, it’s unique (even identical twins have a little variation), it’s quantifiable, and DNA tests can be replicated from one lab to another. Through CODIS (the Combined DNA Index System), the FBI keeps a large database of individuals’ DNA to help identify suspects in certain crimes. The one drawback is, unlike on television where it takes just a few minutes, it actually takes weeks to get the results.

Some forensic fields lack applications beyond crime investigation and don’t have independent verification. Those fields need to be subjected to the scientific process. That includes independent experimentation, peer review, and the ability to replicate conclusions. Most people are surprised when they learn that much of the forensic evidence that we were led to believe is scientific, has actually never been subjected to the scientific process, and no one has proved that they are reliable. In such fields, two different experts can come to completely different conclusions or their conclusions can be influenced by what they know about the crime they are investigating.