Academic journal article Washington and Lee Law Review

Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments

Academic journal article Washington and Lee Law Review

Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments

Article excerpt

Table of Contents

I. Introduction......................................1586

H. DNA Profiling Technology................... 1590

A. Scientific Underpinnings....................*.____1590

B. Forensic Use ofDNA in Courts ...................1593

HI. Warrant and Indictment Requirements ..................1599

A. Federal and State Code Provisions Regarding Suspect Identification in Arrest Warrants or Indictments .......1599

B. Courts' Decisions Regarding Sufficiency of Description in Arrest Warrant..............................1603

C. Courts'Decisions Regarding Sufficiency of Indictment .. 1606

D. Do DNA Warrants and Indictments Satisfy "Reasonable Certainty" Standard?..................1608

E. The Notice Function of Warrants and Indictments......1610

IV. Statutes of Limitations and DNA Warrant End-Run........1611

A. History of Statutes of Limitations............. 1611

B. Purposes of Statutes of Limitations.................1613

1. Enabling Prosecutions to Be Based on Fresh Evidence .................................1613

2. Promoting Repose ..........................1615

3. Forgiveness and the Reduced Need for Punishment .. 1615

4. Encouraging Prompt Investigation of Crimes ......1616

C. Using DNA Warrants and Indictments to Circumvent Statutes of Limitations..........................1617

D. State Legislatures Are Taking Action...............1621

V. Conclusion......................................1623

I. Introduction

Imagine the following scenario: An unknown attacker sexually assaults a woman. As is the case with most sexual assaults, the attacker leaves behind some type of evidence from which authorities can obtain his DNA. However, not knowing the identity of the attacker precludes the police from attempting to match the DNA evidence collected at the crime scene to a sample taken directly from a suspect. Therefore, in their attempt to apprehend the assailant, the police use traditional investigative tactics such as interviewing the victim and searching for potential witnesses. Unless these tools produce a suspect, the crime is likely to remain unsolved, and if there is an applicable statute of limitations, eventually it will expire and shield the attacker from criminal liability. This hypothetical situation describes the reality that occurs in many sexual assault cases. If a new law enforcement tactic gains acceptance, however, the potential criminal defendant might not go unpunished.

The advent of DNA identification techniques gives police and the courts a greater ability to identify the perpetrators of crimes.1 For example, police already use DNA identification techniques to prove the guilt of defendants by matching evidence from a crime scene to a sample collected from a suspect.2 Police also use these identification techniques to exonerate defendants who either are accused of a crime or who are convicted and then subsequently released based on newly discovered DNA evidence.3 DNA identification helps solve various types of criminal cases including murder, robbery, and kidnaping; however, sexual assault cases account for the majority of DNA identification cases.4 While DNA identification evidence generally has gained widespread acceptance,5 a recently employed prosecution tactic is pushing the envelope of legally-accepted DNA identification.6

In early September 1999, Milwaukee Assistant District Attorney Norman Gahn filed rape and kidnaping charges against an assailant identified only by his genetic profile.7 In the criminal complaint used to obtain the arrest warrant, Gahn did not charge the assailant according to his name, as traditionally done in securing an arrest warrant; instead, Gahn described the assailant only by his DNA profile.8 Specifically, the assailant is known only as "'John Doe, unknown male' with matching DNA 'at genetic locations D1S7, D2S44, D5S110, D10S28 and D17S79.'"9 Gahn's purpose in obtaining file arrest warrant was clear: he was attempting to stop the statute of limitations clock so that he could prosecute the assailant were he identified in the future. …

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