Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

A BOSTON CRIMINAL LAWYER DISCUSSES DNA ISSUES IN MA SEXUAL ASSAULT CASES

Over the past week, there has been a lot of news concerning sexual assaults, or attempts thereof, in Somerville, Medford and elsewhere. As a result, law enforcement is looking into any possible connection between the various Massachusetts assaults

In case you do not know, Somerville and Medford neighbor one another and share the land upon which Tufts University sits. Because of Tufts, many young adults abound in the area at virtually all hours.

Does this mean that all males out walking alone could be suspects?

Attorney Sam’s Take On DNA Issues In Sexual Assault Cases

Initially, the answer to the question is “yes”. However, the potential suspect list gets narrowed a bit as descriptions of the assailant or assailants are given.

If there was any touching by the assailant(s) on almost anything, particularly the complainants, there might be DNA left behind which could narrow the search even further…maybe.

You see, when it comes to DNA, the police need a sample of someone’s DNA in order to make a match to it. Few college students have had occasion to give samples of DNA to the government or law enforcement.

Generally, such samples are on hand if someone has been convicted of a felony or perhaps was a member of law enforcement. There are not too many of these among the college population.

“Sam, can’t the police simply force any suspect to give a DNA sample?”

Theoretically at least, the answer is “no”. Law enforcement must make a showing that there is at least probable cause to believe that the particular suspect committed the crime. It is, however, a very low standard and upon the proper application, the court generally allows the taking of a sample.

You will see this most often in rape and murder cases.

“Is it taken from the blood?”

Generally, the DNA sample is taken by a swab in the mouth. It takes less than a minute to take the sample and it is painless. The pain is in the waiting several months for the results.

“What if there is no clear suspect?”

Then it makes it pretty difficult to get a DNA sample. Although the police may have the victim’s DNA together with some unknown person’s DNA, unless that person’s DNA is in the national database, or there is a clear suspect, it is virtually worthless. There is nothing to compare the existing sample with.

“Is DNA evidence foolproof?”

As anyone who watched the O.J. Simpson trial can tell you…no. It gets challenged all the time. In most cases in which there is DNA evidence, one will find at least two battling experts. One for the prosecution to say that the DNA proves this case and one for the defense to say that it proves little to nothing.

The bottom line, of course, is what the jury believes. You don’t need a Boston criminal lawyer of more years than I care to mention tell you that.

It is interesting to note that the government often likes to have its cake and eat it too when it comes to DNA evidence. You might expect that the government, with its desire to only punish the “guilty” would be only too happy to help when someone serving time wishes to test the DNA which was not testable at the time of their conviction. After all, if it turns out that the DNA is not a match, then, by the government’s usual arguments about DNA, an innocent person may be serving time unjustifiably. Surely the prosecution would not want that! Likewise, if the conviction was good, then the DNA testing would only confirm they got the right “perp”. It’s win-win, right?

No such luck. The government usually opposes such use of the DNA. Further, if it turns out not to be a match, there is often a prosecutorial argument that, in this special case (“namely, because it is the defense trying to use it and not us“), DNA evidence is unreliable.

Isn’t it wonderful how professionals can play games when human lives are at stake?

“Well, Sam, you are an advocate. Don’t you always argue in favor of your client, not against your client?”

Absolutely. The client is my client. The prosecution’s client is the citizenry in general. As such, the prosecutor’s oath is to do “Justice” and try to find the truth. Not simply to argue against the defense in any case whatsoever.

That would make them no more believable than politicians who only argue in favor of their particular party! And other than the fact that the chief of these law enforcement offices is an elected position, usually held by career politicians…far be it from me to suggest that they are anything but intellectually honest.

Speaking of “fish stories”, perhaps later this week, we can look at whether DNA analysis might be necessary to test food items such as fish in order to be sure they are what the merchant selling them says they are.

At least in retail, a certain amount of intellectual and moral dishonesty is expected!

Tommorow: Back To AG Coakley

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