An appropriate balance?--A survey and critique of state and federal DNA indictment and tolling statutes.

• Author: Akehurst-Moore, Scott

Introduction

In 1983 Sir Alec Jeffrey ushered a new age into the legal system by revealing the extraordinary applications of DNA fingerprinting. (1) Since then, DNA has crept into various facets of the criminal system, for example post-conviction exonerations. However, within the last few years, legislatures have begun incorporating DNA profiling into the beginning of the prosecutorial process. (2) The first DNA indictment, which was non-statutory, was filed in 1999. (3) In response, legislatures have enacted statutes that either allow DNA profiles as the basis for an indictment, create new limitation periods based on some form of connection of DNA evidence to a suspect, normally called "identification," or a do mixture of both. (4) In essence, these statutes aim to toll the applicable statute of limitations and thus allow more time to file or catch a criminal who left behind discernible DNA evidence.

However, this burgeoning development has not been without some controversy. (5) As stated by the federal congress the statutes are to, encourage swift and efficient investigations, while recognizing the durability and credibility of DNA evidence and preventing an injustice if a "cold hit" occurs outside the limitations period. (6) The goals are to help prevent heinous crimes from reoccurring and suspects escaping justice when their legal identity is unknown. (7) This is especially true in regard to sexual crimes. (8) A further goal is to make sure that these statutes do not circumvent the respective rationales for indictments and the statutes of limitations. (9) The swath of new statutes presents numerous solutions and problems. This Note will seek to explore and criticize them.

First, this Note will explore the reasons behind this new trend of using DNA indictments and tolling statutes in an effort to explain the solutions and problems these statutes have in turn created. Next, it categorizes of the various statutes and how they work, then discusses how they have coped with common criticisms and fears. Finally, the Note will explore what other problems have arisen from both the wording of these statutes and their actual usage. Included at the end is a diagram (Diagram 1) outlining how these statutes operate, and a table (Table 1) cataloguing various elements and mechanisms of current statutes. In essence, this Note is concerned with describing, analyzing and criticizing these statutes directly and not with larger constitutional problems per se. Unless the statutes are deemed unconstitutional, lawyers have to work with its provisions.

Statutory Rationales and Background

The General Assembly finds that the mission of the criminal justice system is to punish the guilty and to exonerate the innocent. The General Assembly further finds that Arkansas laws and procedures should be changed in order to accommodate the advent of new technologies enhancing the ability to analyze scientific evidence. (10)

This quotation is from the legislative Notes accompanying Arkansas' DNA indictment and tolling statute. (11) This excerpt reflects a convergence of two objectives. The first is a drive to incorporate and sell the idea of the infallibility of DNA evidence and its use in the judicial system. (12) The second is the more public policy reason of preventing dangerous criminals from escaping justice and re-offending due to legal technicalities, namely the statute of limitations. A plethora of new statutes have arisen as a result of these two goals.

One criminal area in the forefront of the controversy over DNA indictments and tolling statutes is that of sexual crimes. Sexual crimes are particularly sensitive, due to the extreme emotional, as well as physical, effects of sexual violence. In 1999, just before the statute of limitations ran out, the first DNA indictment was filed against a genetic location sequence. (13) Milwaukee prosecutor Norman Gahn had taken an unprecedented step and merely marked the indictment as "John Doe, unknown male ... matching ... DNA at genetic locations. ..." (14) The unknown suspect had raped a seven-year old girl in 1994. (15) Gahn stated, "I think it's good for our victims of sexual assault to know that we haven't forgotten them. We will use every available bit of technology to go after these attackers. ..." (16) In a similar New York case, the defendant David Martinez attempted to rape a woman in the Canal Street subway station but was not identified or apprehended. Prosecutors indicted a DNA profile found on the victim before the limitations period ran out, and Martinez was eventually arrested after the sample was matched to the suspect's DNA profile. The district attorney said "John Doe [DNA] indictments represent closure for so many victims." (17) These concerns surrounding sexual victims prompted the initial impetus for DNA indictment and tolling statutes. The background to two specific statutes shows how concern for sexual victims was the impetus for these new statutes.

In 2002 Georgia's criminal limitations statute was amended by the governor. (18) The process began when the Georgia Network to End Sexual Assault (GNESA) discovered an alarming amount of "cold hits," which are when DNA from convicted felons is later matched with now time-barred sex crimes. (19) When GNESA proposed legislation to permit prosecutions against these cold hits, the lieutenant governor fully agreed, stating these crimes were the most egregious in society. (20) Georgia Senator Hecht noted "now [is the] opportunity for us to bring to justice those criminals who have previously inflicted pain [through] molestation, kidnapping, and even murder. ..." (21) The lieutenant governor further stated that "there's no limit on the suffering these crimes cause, and there should be no time limit on our ability to find out who did the crimes...there is no statute of limitations on a person's pain." (22) Encouraged by the advent of DNA technology, Georgia enacted an amendment that extended the limitations period for certain crimes based on certain DNA criteria. (23)

The senatorial report on the Federal DNA Sexual Assault Justice Act of 2002 expresses emotions similar to those of Georgia. (24) [section] 3282 was only one section of the wider Sexual Assault Justice Act which hoped to "increase Federal resources available to States and local governments to combat crimes, particularly sexual assault crimes, with DNA technology ... [and] ... enhance the infrastructure so that the criminal system can harness the power of DNA." (25) When discussing the proposed DNA indictment statute, 18 U.S.C. [section] 3282, the report states "'John Doe' DNA indictments respond effectively to the profound injustice done to rape victims when delayed DNA testing leads to a 'cold hit' after the statute of limitations has expired." (26) Like Georgia, Congress has expressed and highlighted the undesirability of cold hits. Congress also took note that other states had thought it prudent to enact similar statutes. (27) In this respect, new state laws encouraged Congress to enact new federal legislation. The fact that many of the new statutes apply only to sexual crimes reflects the high level of concern about these crimes. (28) A new trend has seen DNA indictment and tolling statutes' application extended into other crimes as well. (29)

In addition to outrage over unsolved sexual crimes, the increase in statutes was driven by an increased acceptability and use of DNA in the judicial system. The court in State v. Woodall, concerning kidnapping and sexual assault, was the first court of last resort to consider DNA evidence; it held that expert testimony on DNA evidence was admissible. (30) The defendant was initially found guilty, but was eventually released after a DNA test proved his innocence. Today, DNA evidence is regularly used in federal and state courts. (31) DNA technology facially appears to have passed evaluation by the justice system, becoming such an integral part of many criminal trials that attorneys need to fully educate themselves about it. (32) It is no surprise, then, that DNA technology has been picked up as a method to extend the limitations period for certain heinous crimes. As the Senate noted,

"John Doe" DNA indictments strike the appropriate balance: they encourage swift and efficient investigations, while recognizing the durability and credibility of DNA evidence and preventing an injustice if a "cold hit" occurs outside the limitations period. (33)

Statutory Building Blocks

State and federal legislatures have approached in various ways the problem of using DNA to enable law enforcement to prosecute criminals beyond the normal statute of limitations period. (34) These statutes employ two main building blocks, though as discussed infra, these have formed four discernible categories. (35)

The first building block is permitting a DNA indictment. The simplest example is found in Delaware's statute, which states:

(a) In any indictment for a crime in which the identity of the accused is unknown, it is sufficient to describe the accused as a person whose name is unknown but who has a particular DNA profile. (36) Unlike a John Doe indictment that requires other particularizing details, this type of statute requires only the suspect's DNA to begin an indictment. (37) As the only case on point, State v. Dabney permitted a common law indictment, and it is unclear whether this type of statute is permitted. (38) A DNA indictment gives law enforcement and prosecutors the ability to stop the limitations period running with information not otherwise usable in an indictment. In effect the limitations period is tolled until they find more information to successful find and prosecute a suspect. (39)

Other states have added conditions that must be met before a DNA indictment can be filed. Arkansas' rape statute allows DNA indictments if they are brought within 15 years of the crime. (40) Arkansas also requires some form of due diligence...