Wednesday, October 31, 2012

What's 50,000 Volts Between Friends?

As you know, I'm a special prosecutor on a case in another county. 

There's a legal issue we are currently dealing with on the case.  In the first trial, the police used a taser to obtain a DNA sample.  It's not exactly the ordinary way to do it, but here's how it happened.

The Court signed an order allowing the police to obtain a DNA sample from the defendant to compare against DNA evidence recovered at two different crime scenes.  What happened when the defendant refused you ask?  Did they arrest the defendant for contempt and bring him before a judge?  Did they go back to the judge and ask for an order allowing force?

Nope.  The police sent 50,000 volts of electricity into the defendant for a second and a half until he opened his mouth so they could swab the inside of it for skin cells.  The DNA sample matched the crime scene samples and the defendant was convicted.  When the defense attorney asked the police why they thought of the taser, they said it was the defendant who suggested it.

The appellate division reversed the conviction, stating that the force used was too much.  The question now is, are the People allowed to obtain another DNA sample?

In re Abe A., 56 N.Y.2d 288 (1982) provides the framework for obtaining a DNA sample from the defendant.  The Court of Appeals laid out three requirements:  (1) probable cause to believe the suspect has committed the crime, (2) a clear indication that relevant material evidence would be found, and (3) the method used to secure the evidence is safe and reliable. 

There was clearly probable cause in our case, but the manner in which the sample was collected was intrusive, which is why it was suppressed.  So now the question is whether the violation of the Fourth Amendment was so intrusive that allowing the police to obtain a subsequent sample would not deter future police misconduct.

I'm obviously arguing that it is not.  The Court has already used the exclusionary rule which is used to punish police misconduct.  It is not a means to force the police into a worse position because of the use of the taser.  It is to excise the misconduct and anything that flows from it.  The sample we are seeking is based on an independent source than the illegally obtained sample.  It is not the fruit of the poisonous tree because it is not based on the tasered DNA sample.  It is based on the probable cause that existed before the tasering.

Is the police conduct so bad that any future attempts to collect the same untainted evidence should be prohibited?

Stay tuned. 


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