Waiting for John Doe: the practical and constitutional implications of DNA indictments.

• Author: Gaudet, Daniel

1. INTRODUCTION

   Over the course of the past two decades, DNA evidence has become a powerful tool for both prosecutors and defense attorneys in criminal trials. (1) Because it is generally accepted as accurate, this evidence is used in a myriad of ways in various legal proceedings. (2) Notably, in recent years, prosecutors in several states frequently utilized the practice of obtaining a DNA sample from an unknown suspect and issuing a so-called "John Doe" indictment based on the profile developed from the sample. (3) However, the proliferation of this new prosecutorial device has not come without concerns. (4)

   The main criticisms typically aimed at John Doe DNA indictments focus on the perceived deficiencies of DNA evidence, which can be exacerbated by the gap in time between the collection of a sample and the location of a match. (5) Some have argued that by indicting a DNA sample, prosecutors are able to toll the statute of limitations of the alleged crime until attaching a name to the indictment, allowing for an endless period during which an identity can be later found. (6) Questions thus arise as to whether the use of John Doe DNA indictments violates the statutory and constitutional rights of criminal defendants who are eventually linked to the originating crime. (7) Despite these criticisms, courts have found overwhelmingly in favor of the constitutionality of these indictments. (8)

   This Note examines the problems that DNA indictments raise for criminal defendants as well as the potential safeguards against prosecutorial abuse in issuing nameless indictments. (9) Part II discusses the factual and legal background of DNA evidence, including its historical development, technical underpinnings, and weaknesses. (10) Part III traces the history and purpose behind statutes of limitations, the Fourth Amendment's particularity requirement, and the Sixth Amendment's "Speedy Trial" clause. (11) Part IV details the history of John Doe indictments prior to the use of DNA technology through the present. (12) Part V concludes by examining the current problems with issuing John Doe indictments, suggesting measures to ensure that defendants are not burdened by the use of these indictments, and anticipating future developments of the law. (13)

2. DNA EVIDENCE

   1. Admissibility

      Like all forms of scientific evidence, DNA evidence is subject to certain admissibility standards in all federal and state jurisdictions. (14) Today, courts in all fifty states accept that DNA evidence meets the thresholds for admissibility established in both the Daubert and Frye decisions. (15) Not only is such evidence generally accepted by the scientific community in accordance with Frye, but it is also conforms to the Daubert decision's emphasis on Rule 702 of the Federal Rules of Evidence. (16)

   2. Collection and Testing

      DNA evidence can be obtained from samples including human skin, hair, blood, semen, and other bodily fluids and tissues. (17) Aside from being obtainable from any cell in the human body, DNA evidence is such a useful device because it is unique to each individual. (18) Once a sample has been acquired, several different methods of analysis may be used to develop a profile of the suspect. (19) Initially, the most common form of DNA testing was Restriction Fragment Length Polymorphism ("RFLP") analysis. (20) As compared with other forms of DNA testing, RFLP analysis requires a larger sized genetic sample from which a human profile can be developed and then compared with that of a known defendant or with those collected in a databank. (21) This process consists of seven steps that culminate in the creation of a set of genetic bands that can be used for comparison purposes with a known suspect or a grouping of samples to ascertain a statistical match. (22) This type of analysis is believed to be less susceptible to contamination when compared to alternative methods. (23) However, despite this advantage, RFLP testing is rarely used and has been largely replaced by a faster and more sensitive process called Polymerase Chain Reaction ("PCR") analysis. (24)

      PCR analysis was first developed in the early 1990s and eventually became the preferred method of DNA examination. (25) Unlike RFLP testing, the PCR method is not used to create a statistical match between two DNA samples, but rather to exclude individuals as potential matches via a three-step process. (26) The major advantage that PCR testing has over RFLP testing is that PCR can be done with a very small genetic sample, which in turn can come from older and potentially degraded sources that would not be suitable for RFLP analysis. (27) As noted, however, the major drawback of PCR testing is that it is prone to contamination and can in turn produce incorrect results. (28)

      The most commonly used method of DNA analysis today is a variation of PCR testing referred to as Polymerase Chain Reaction Short Tandem Repeat ("PCR-STR") testing. (29) Much like ordinary PCR testing, the PCR-STR method amplifies a certain portion of a DNA sample and uses that amplification for comparison purposes. (30) The major difference is that PCR-STR analysis focuses primarily on certain DNA strands called short tandem repeats ("STR"). (31) The results produced by PCR-STR tests are generally considered to be the most accurate, which in turn has made it the primary method currently used by technicians throughout the United States. (32) However, in spite of its popularity, PCR-STR testing has not been immune from criticism. (33) The primary concern, similar to other forms of testing, focuses on the great potential for contamination that can occur during the testing process. (34)

   3. DNA Evidence Criticism

      The use of DNA evidence in court proceedings has been closely scrutinized for a variety of reasons. (35) A frequent critique has been the potential for crime lab errors that lead to erroneous results. (36) During the past decade, there have been a number of incidents throughout the United States in which DNA testing was compromised and inaccurate results were produced. (37) If the crime lab assigned to analyze a DNA sample commits an error, whether it is intentional or not, the potential arises for serious complications in the legal proceedings. (38) False positive results have the potential to lead to wrongful convictions. (39) The significant number of incidents in which wrongful convictions have been secured based on faulty lab work calls into question whether DNA evidence should be so readily relied upon. (40)

      Some errors in DNA testing may result more from the sample itself than from human error. (41) As discussed, PCR testing, which is the preferred method, does not require a large sample size of DNA. (42) While many view this point as a major advantage of using this test, one of the drawbacks that it carries is the fact that water and other substances used during the amplification process are vulnerable to contamination. (43) Without proper oversight of the testing procedure, the risk exists that a contaminated DNA sample is being analyzed. (44)

      A third problem with DNA evidence arises from the lay-people who comprise juries. (45) Research shows that jurors often fail to properly interpret probability statistics that commonly accompany introduction of DNA evidence and are easily swayed by how these numbers are offered. (46) Consequently, jurors can very easily misinterpret any statistical data concerning the likelihood of a DNA match. (47) Researchers have also identified a similar problem with jurors, dubbed the "CSI Effect." (48) Coined after the popular television crime drama, Crime Scene Investigation, the so-called effect describes the emphasis jurors tend to place on DNA in what they perceive as concrete, infallible evidence. (49) This effect is in large part due to the program's unrealistic and uninformative portrayal of DNA analysis. (50) Additionally, jurors may at times expect to be presented with DNA evidence and give less credibility to a case in which it is not utilized. (51) As a safeguard against these concerns, some courts have taken it upon themselves to educate jurors on how to properly interpret the presence or lack of DNA evidence. (52)

3. CONFLICTING CONCEPTS

   1. Statutes of Limitations

      The federal government and almost all fifty states have statutes of limitations pertaining to criminal offenses. (53) Primarily an invention of American law, criminal statutes of limitations have long played an important role in the justice system. (54) Specifically, statutes of limitations aim to ensure that individuals do not have to defend themselves against facts and accusations that may have occurred so long ago that they are now difficult to contest. (55) Though capital offenses, namely murder, typically do not have a statute of limitations, most other crimes employ a set time limit to ensure that the individual defendant is protected against overly prolonged prosecution. (56) Additionally, courts have often emphasized the need for law enforcement to conduct swift and effective investigations of crimes as an important rationale behind criminal statutes of limitations. (57)

      Numerous other reasons have been proposed as to why statutes of limitations are important and necessary components of criminal justice proceedings. (58) Whether these reasons are to protect the rights of the accused, to appease the public, or to serve as a means of more effectively pursuing and prosecuting offenders, there is little doubt that criminal statutes of limitations have long received a great deal of support from American lawmakers and court officers. (59) Nonetheless, criminal statutes of limitations are not a constitutionally protected right. (60)

      Despite the longstanding support for criminal statutes of limitations, there are those who view them as outdated and unnecessary as a result of several legal developments. (61) These views reflect the current attitudes on criminal punishment that are focused...