West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

         Earlier this month, Florida's governor, Charlie Crist, signed Senate Bill 2276 which permits the police to take a DNA sample from anyone who is merely arrested for a felony offense. 

          In an article entitled "Crist signs law ordering DNA tests for all arrested in felonies, raising privacy fears," Palm Beach Post staff writer Dara Kam observed that a Minnesota appellate court held a similar law to be unconstitutional.  This article examines why that Minnesota law was found to be unconstitutional since the arguments raised in that case will undoubtedly be raised by those seeking to have Florida's new DNA law declared unconstitutional.

         In the case of In the Matter of the Welfare of:  C.T.L, Juvenile, the Minnesota appellate court began by noting the often-stated principle of constitutional law that searches (which includes taking someone's DNA) conducted by the police without prior approval by a judge or magistrate are unlawful under the Fourth Amendment to the United States Constitution unless there exists an exception previously recognized by the courts.  Minnesota's law, however, allowed the police to take DNA samples from anyone arrested for a felony even though a judge had not previously determined that there was a fair probability that the search would produce evidence of a crime.  Under Minnesota's law, "it is not necessary for anyone to even consider whether the [DNA sample] to be taken is related in any way to the charged crime or to any other criminal activity."  For that reason alone, the statute was unconstitutional.

          However, the Court continued on to provide still another reason why the Minnesota law at issue was unconstitutional.  It began by observing that persons convicted of crimes have a reduced expectation of privacy which does not outweigh the Government's interest in DNA testing.  But the privacy interest of a person who has simply been charged but not convicted of a crime is not outweighed by the Government's interest in DNA testing.

          It will be interesting to see what constitutional arguments are raised by the opponents of Florida's new DNA law in the months and years to come.  The arguments discussed in this article will undoubtedly be among them.

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          DNA profiling is a method used by forensic scientists to help identify a criminal suspect based upon his unique genetic code.  If you watch some of the crime-scene shows that appear frequently on television, you would think that DNA profiling is infallible.  (In fact, one prosecutor in a case that I tried referred to DNA as the "gold standard" of evidence.) 

          But is DNA profiling really infallible?  The answer depends upon whether the individual doing the testing is qualified to do so and whether the testing methods that she uses are sound.

         In 2005, the United States Congress passed a law authorizing the National Academy of Sciences to conduct a study on such areas of forensic science as fingerprint evidence, firearms examinations, and DNA evidence. 

          As regards DNA evidence, that study, while conceding the fact that the "probative power of DNA is high," also observed that "[a]lthough DNA laboratories are expected to conduct their examinations under stringent quality controlled environments, errors do occasionally occur.  They usually involve situations in which interpretational ambiguities occur or in which samples were inappropriately processed and/or contaminated in the laboratory.  Errors also can occur when there are limited amounts of DNA, which limits the amount of test information and increases the chance of misinterpretation.  Casework reviews of [mitochondrial DNA] analysis suggest a wide range in the quality of testing results that include contamination, inexperience in interpreting mixtures, and differences in how a test is conducted" (italics added).

          In some cases, DNA evidence is not all that helpful in solving a crime.  For example, in a case in which a girlfriend accuses her boyfriend of having raped her, it would not be unusual to find the boyfriend's DNA inside the girlfriend's vagina if they had been routinely engaging in sexual intercourse prior to the alleged rape.  However, if that same woman were raped by a stranger, then DNA evidence might well identify her attacker and thus help solve the crime. 

          When DNA evidence does make up an important part of the prosecution's case against one of my clients (such as in the case of a woman raped by a stranger mentioned above), I make it a point to have that DNA examined by my own expert in order to make sure that it does not, in fact, point to someone other than my client.

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I frequently represent people who have been charged with committing traffic crimes that involved an accident (for example, DUI manslaughter or leaving the scene of an accident).  Often, the client's auto insurance company wants to take a tape-recorded statement regarding the details of the accident while the criminal case is still pending. 

Whenever this situation arises, I ask the insurance adjuster to wait until after the client's criminal case is concluded before taking the taped statement because I do not want the State Attorney's Office to subpoena the statement and then use it against my client at trial.  The adjusters whom I have dealt with always agree to this request because they are working on behalf of the client as am I.

In a 2007 Florida case called Reynolds v. State of Florida, a person who was being charged with a crime gave a statement to his insurance company while his criminal case was still pending.  When the prosecutor learned of this statement, he sent a subpoena to the insurance company demanding a copy of the statement.  The insurance company refused to comply with the demand based, in part, on the attorney-client privilege.

A Florida appeals court ultimately agreed with the insurance company stating that because the individual's statement did indeed fall within the attorney-client privilege, the insurance company was not required to provide it to the prosecutor.

Although the Reynolds case protects statements that are made by someone to her own insurance company because of the attorney-client privilege, it would seem to provide no protection at all to statements made by an individual to the other  party's insurance company. 

That being the case, I think the safest course of action is to have a client wait until after her criminal case is completely finished before giving a statement either to her own insurance company or to the opposing party's insurance company.

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