Meeting the statute or beating it: using "John Doe" indictments based on DNA to meet the statute of limitations.

AuthorBieber, Meredith A.

What can a prosecutor do when the only lead on a rape that occurred nearly six years ago is genetic material and the statute of limitations is about to run? A new option may be to file a "John Doe" indictment or arrest warrant that identifies the suspect by his genetic profile in order to commence the prosecution and thus avoid the running of the statute. Across the country, prosecutors are using this tactic to preserve rape cases that remain unsolved but threaten to be lost to the statute of limitations. (1) Once the government formally commences a prosecution, (2) the statute is tolled and the police can, theoretically, continue their efforts to identify the suspect. After the police discover a match for the DNA profile contained in the complaint or indictment, the state can arrest the suspect and put him on trial in order to determine his guilt or innocence.

Absent the commencement of prosecution, a case cannot be adjudicated once the statute of limitations has run. If a suspect is identified one day beyond the statutory limit, he cannot be tried for the offense. However, in committing certain crimes, such as rape, an offender often leaves behind some biological material (semen, blood, skin, hair). (3) Proponents of "John Doe" indictments say that using a DNA profile--rather than a name or physical description--to identify the suspect in an arrest warrant or indictment is a legitimate way to vindicate victims, prevent offenders from escaping justice, and prevent future crimes. (4) Critics, on the other hand, contend that issuing an arrest warrant based on a DNA profile is a disingenuous device of the prosecution that evades the statute of limitations and infringes on the constitutional rights of the accused. (5)

Using DNA profiles to identify the accused in an indictment or arrest warrant for the purpose of commencing a prosecution and effectively taking a case outside of the statute of limitations raises certain concerns about fairness to a defendant. However, this practice should be able to withstand judicial scrutiny. This Comment will argue that: (1) DNA-based indictments meet the legal sufficiency requirements for description; (2) DNA indictments are generally consistent with the rationales behind statutes of limitations; (3) DNA indictments are subject to certain limitations; and (4) checks must be employed when using genetic profiles to commence a prosecution.

  1. PROCEDURAL BACKGROUND

    There are three ways the government formally can commence a prosecution, whether for the purpose of tolling the statute of limitations or otherwise. One way is to file a charge and then issue an arrest warrant based on the underlying complaint. (6) Another way to commence a prosecution is to present evidence to a grand jury. (7) If the grand jury returns an indictment, the prosecution has commenced formally. (8) Both procedures have been used to commence prosecutions against unidentified sexual assailants. (9) The third way to commence a prosecution for purposes of tolling the statute of limitations is to file an information against the accused. (10)

    In the case of filing a charge and issuing an arrest warrant, consider, for example, Paul Eugene Robinson, the first man in the country to be arrested in conjunction with a warrant identifying him only by his DNA profile. (11) Robinson has been charged with a rape that occurred in 1994. (12) Although his identity was unknown at the time, prosecutors in Sacramento filed charges for the assault in August of 2000, days before the six-year statute of limitations period expired. (13) Once the complaint was filed, a magistrate judge issued an arrest warrant. (14) Robinson was arrested in September 2000 when state computers matched his DNA with the genetic code given in the "John Doe" warrant. (15) Robinson's DNA had been entered in the state's computer databank (16) after police arrested him for an unrelated criminal matter. (17)

    Other jurisdictions have proceeded by DNA indictments. In Manhattan, a grand jury indicted the so-called "East Side rapist" based on his genetic profile. (18) A Wisconsin grand jury returned an indictment against an unknown suspect whose DNA was linked to three rapes that occurred in Milwaukee in 1993. (19) In New Mexico, a grand jury returned a forty-four-count felony indictment against "John Doe," an unidentified male "suspected of stalking, drugging and raping nine Albuquerque women over an eight-year period." (20) Despite the procedural difference between DNA indictments and DNA arrest warrants, (21) both practices implicate the same question: Does a genetic profile meet the legal requirements for sufficiency of description of the accused? (22) This question, along with the policy issues embedded therein, is central to determining whether DNA indictments are constitutional.

  2. CONSTITUTIONAL REQUIREMENTS FOR THE CONTENTS OF AN INDICTMENT OR CHARGE

    In order to be enforceable, an indictment or charge must meet certain requirements. If a prosecutor wishes to commence a prosecution by filing a complaint, in order for the complaint to be valid, it must be in writing, under oath, and state the essential facts about the offense charged. (23) If the magistrate judge presented with the complaint believes there is probable cause that the accused committed the crime, a warrant is issued for the arrest of the accused. (24)

    1. Adequate Description of the Accused

      A warrant must "contain the name of the defendant, or if [his] name is unknown, any name or description by which [he] can be identified with reasonable certainty." (25) The requirements for an indictment are similar. One state's formulation is that when a grand jury returns an indictment against an unnamed defendant, the indictment must "contain words of description which have particular reference to the person whom the Commonwealth seeks to convict." (26)

      Although a warrant describing its subject only as "John Doe" is not constitutionally sufficient, (27) as long as it provides an adequate description of the accused, the warrant will not be invalidated. (28) A physical description may suffice. For example, in a Wisconsin case, a description in an indictment directed against "John Doe" that included the alias "Leo" and "enumerate[d] various other particulars concerning the race, sex, age, weight, hair color, eye color, and peculiar facial characteristics" of the defendant was found to be sufficient to identify the defendant. (29) In another case, the Third Circuit upheld a warrant describing its subject as "John Doe, a white male with black wavy hair and stocky build observed using the telephone in [a particular apartment]." (30)

      A genetic code describes a person with far greater precision than a physical description or a name. While many people have the same name or may be described, for example, as having black hair or being five feet nine inches tall, "each person's DNA is different from every other individual's except for identical twins." (31) Therefore, a "John Doe" DNA warrant should provide a legally adequate description of the accused. Although "John Doe" warrants are disfavored by law enforcement, they are not novel. District attorneys have used "John Doe" warrants or indictments in conjunction with physical descriptions, fingerprints, and pictures of unknown suspects. (32) Using genetic codes in "John Doe" indictments seems to be a logical extension of these practices.

      The use of DNA to indict suspects is similar to the use of fingerprints. The National Institute of Justice has written:

      When using either DNA or a fingerprint to identify a suspect, the evidence collected from the crime scene is compared with the "known" print. If enough of the identifying features are the same, the DNA or fingerprint is determined to be a match. If however, even one feature of the DNA or fingerprint is different, it is determined not to have come from that suspect." (33) In both cases, once a match is found and the suspect is identified by name, he can be apprehended and put to trial.

    2. The Policy Behind the Sufficiency Rule

      The purpose of requiring an adequate description of the accused is (1) to give notice to the accused of the charges against him and (2) to ensure that the language used is sufficient to protect the defendant against double jeopardy. (34) It is debatable whether the defendant is actually put on notice by an indictment identifying him solely by his genetic code. "Unlike an alias, physical description, place of residence, social security number, or other such means of identification, a person does not usually know his or her DNA profile." (35) A complaint identifying the accused by his DNA may not inform him that he is being prosecuted unless he actually knows his genetic profile.

      This criticism is difficult to refute. One response is that the possessor of the particular genetic code is on constructive notice. He, after all, was the one who committed the crime. The state should not be bothered by the fact that a rapist who has managed to conceal his identity may not have actual notice that he is being prosecuted. The troubling aspect of this response is that it assumes the guilt of someone based solely on the presence of his genetic material. Evidence of a person's genetic material does not always indicate that a rape was committed. There may have been consensual sex, in which case the accused would have no reason to believe he was the subject of a felony prosecution. There may have been no sexual contact at all. Especially where the genetic material is something other than semen, it is less certain that any sexual act occurred.

      This problem, though, would arise in very limited circumstances. First, there would have to be a woman who claims "rape" when there was, in fact, no rape. (36) Second, a DNA profile would only be used where the woman did not know the name or physical description of the person she was accusing. (37) Further, the police would have to be unable to identify...

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