U. S. District Judge Charles Breyer refused a request by the ACLU for an order to forbid the state of California from enforcing a proposition which requires that everyone arrested on felony charges be required to give a DNA sample.

The ACLU has sued the state to forbid the enforcement of Proposition 69 which required the taking of a DNA sample from everyone arrested on a felony charge. Prior to the passage of Proposition 69 only those convicted of a sex crime or a serious felony were required to provide DNA samples. The ACLU moved for an order pending the resolution of the suit requiring the state not to enforce the proposition. The ACLU claimed that taking of DNA samples on everyone who is arrested on a felony instead of limiting the samples to those who committed crimes that can be detected by DNA testing. The Fourth Amendment allows only reasonable searches and the ACLU is arguing that the taking of a DNA sample from one’s mouth is a search and that it is unreasonable to take a saliva sample from someone who is not convicted of a crime or from someone charged with a crime where a DNA sample could not help prove guilt or innocence.

But Judge Brewer ruled that DNA is a tool used to identify people such as finger prints and therefore it is not unreasonable to take a sample. As a result he held that the ACLU is unlikely to win its suit. Therefore he denied the request for a temporary order prohibiting enforcement of the proposition while the suit is pending.

The New York Court of Appeals upheld the conviction of Michael J. Brown on sexual assault charges over claims that the admission of of a DNA report processed by a subcontractor laboratory to the Office of the Chief Medical Examiner (OCME) through the testimony of a forensic biologist from OCME violated the right of confrontation as discussed in Melendez-Diaz v Massachusetts.

At trial there was evidence that the defendant followed a nine year old girl into the apartment house of a friend in Queens and sexually assaulted her in 1993. She was unable to identify him. In 2002 OCME submitted the rape kit to a private licensed laboratory, Bode. It matched the DNA of Brown who had been arrested on unrelated charges in Maryland. An analyst from OCME then compared the two samples. At trial she introduced several reports and graphs developed by Bode in its comparison of the DNA.

The Supreme Court in Melendez-Diaz ruled that affidavits prepared by a forensic chemist were testimonial under Crawford. Citing Crawford, Melendez-Diaz stated

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent–that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

The Court in Melendez-Diaz had little trouble finding that the chemist’s affidavits were testimonial and that their admission violated the Confrontation Clause.

The New York Court of Appeals attempts to differentiate the DNA reports from the chemist’s reports in Melendez-Diaz by saying that the chemist in Melendez-Diaz drew the conclusion that the item tested was cocaine while the reports in Brown did not draw any conclusions. It was the analyst from OCME who testified who drew the conclusions that Brown’s DNA matched that taken from the victim. But the Supreme Court in Melendez-Diaz rejected the respondent’s claim that the chemist’s personal appearance was not necessary because it was the “result of neutral, scientific testing.” The New York Court is making the same claim and it should not hold up under the Supreme Court’s decision in Melendez-Diaz.

The affidavits in Melendez-Diaz are under oath whereas the reports in Brown are not under oath. Some might argue that this makes the Brown reports less testimonial. But it also makes them less reliable and more in need of cross examination. Furthermore they were made for the purpose of litigation and in expectation that they would be introduced into evidence. As such their testimonial nature should not be questioned.

Yesterday a statute took effect in Texas. All prosecutors and parole boards now have access to DNA evidence for crimes for which the statute of limitations has passed. This will allow them to use the information to attempt to lengthen the sentence of individuals for crimes in which the statute of limitations has not passed.

For example, say a defendant’s DNA matches that in a rape twenty years ago. Since the statute of limitations has passed he cannot be convicted for the old crime. But now he is charged with a rape that happened last year. The prosecutor could use the evidence of the old rape to attempt to get the defendant the maximum sentence in the newer crime.

If the information is only given to prosecutors and parole boards the law may well violate Wardius v. Oregon In Wardius the Supreme Court said that due process demands that discovery must be mutual. In other words if a statute allows a prosecutor access to information it must also allow the defense access to the information.

If the defense is given the information, the cost of defending the case goes way up as defense counsel needs to hire experts to test the DNA and challenge the validity of the police lab’s testing of the twenty year old substance.

While the law allows evidence to be used at sentencing that may not be admissible at trial, the use of DNA to show prior criminal activity where there was no trial or adversarial testing of the evidence may also violate due process. DNA evidence is very incriminating. Yet we know it is not 100% accurate and before its use to aggravate a sentence it should be subject to a jury using a beyond a reasonable doubt standard.

The Ninth Circuit Court of Appeals ruled yesterday that the warrantless, forced taking of a DNA sample from a pretrial incarcerated individual who is not on probation or parole is a violation of the Fourth Amendment where the taking of the sample is unrelated to the pending charges.

Kenneth A. Friedman sued Dolphus Boucher and Elissa Luzaich for violating his civil rights. Boucher is a Las Vegas police officer. He wanted to take a DNA sample from Friedman who was charged with exposing himself and lewd behavior. Friedman had a history of sex crimes in Montana and Ohio but at the time of his arrest he lived in Las Vegas and he had completed his most recent parole in Montana. Friedman refused to give Boucher a sample. Boucher then went to Assistant District Attorney Elissa Luzaich and obtained permission to take a sample by force.

When Friedman again refused to give Boucher a sample and asked to talk to his lawyer. Boucher refused. Another officer threatened to hurt him if he did not comply. They also threatened to have other officers beat him up. At this point he was sitting on a bench in chains and shackles, chained to a metal bar on the bench.

Boucher then forced Friedman’s mouth open and took a buccal swab.

Friedman filed suit. The District Court granted a motion for summary judgment after the defendants claimed partial immunity. The Ninth Circuit ruled that since Friedman’s Fourth Amendment rights were violated and since the rule was well known at the time of the violation Boucher and Luzaich’s claim of immunity should have been denied.

Boucher and Luzaich alleged the existence of three exceptions to the Fourth Amendment’s warrant requirement but the court refused to accept them. First they claimed a “special needs” exception. But that only applies for non-law enforcement reasons and the defendant’s claim that they they were going to use it to find cold cases was a law enforcement purpose. Second they said that they were complying with a Montana law requiring the taking of a DNA sample from convicted sex offense felons. But the law appears to apply to only those who are on probation or parole and Boucher did not comply with the requirement that the sample be turned over to Montana authorities. Finally they claimed that since Friedman was incarcerated he had only limited privacy rights and they did not apply to the taking of a DNA sample which could be used for identity. But it was not being used to test his identity or for anything connected to the pending charges. Nor was it being used for a legitimate custodial purpose.

The Ninth Circuit reversed the grant of summary judgment and sent the case back to the District Court for trial.

The Supreme Court ruled last week held that there is no due process right to DNA discovery post conviction.

William G. Osborne was convicted of rape and assault for a 1993 incident in Anchorage, Alaska.At the time of the trial modern DNA tests were not available. The results obtained from the DNA test did not exclude eighteen percent of African American men.

Osborne filed a 1983 civil rights action in Federal Court to get the DNA sample which he plans to have tested at his own expense. The District Court denied his request. The Ninth Circuit Court of Appeals upheld his right to the discovery and the Supreme Court last week reversed the decision of the Ninth Circuit.

While, under Brady, there is a pretrial right to discovery, the Ninth Circuit erred, according to Chief Justice Roberts in his majority opinion, in extending the right to post trial discovery, despite the fact that Osborne has a liberty interest in pursuing post conviction relief.

The Supreme Court held that one can only obtain post trial due process relief if the available process “offends some fundamental principle of justice” or “transgresses any recognized principle of fundamental fairness.” While Alaska does not have a statute specifically granting the right to post trial DNA, a review of the statutes and judicial decisions in Alaska indicates that post trial right to a DNA examination is available under various circumstances and the process by which it can be obtained does not offend the fundamentals of justice or transgress recognized principle of the fundamental fairness.

Furthermore the Court refused to extend the right to substantive due process to the right to post trial discovery of DNA samples. First there is no long standing right to DNA and secondly the court did not want to interupt the legislative and judicial process which is happening in each of the states and Congress. There are 46 states in which legislation has been enacted which in one way or another guarantees the right post trial discovery of DNA samples.

Justice Stevens in dissent, wrote that while Alaskan law permits post trial discovery of DNA samples it is not clear that the discovery is granted in practice, In particular he noted that it was not granted to Osborne even though it appears that it could exonerate him. Second, Stevens states that there is a fundamental right in not being incarcerated if one is innocent and that denial of the DNA discovery violates his due process liberty right.