Can a rape victim&#39;s DNA be used against them in criminal proceedings? This question arose after a recent revelation from the San Francisco DA, who said that DNA of rape victims that were gathered when performing a rape kit test1 was used to identify a criminal suspect through a match in the database. Does this practice contravene any state statute(s) or rule(s) of evidence? contravene any federal statute(s) or rule(s) of evidence? violate any state constitutions or the US constituiton? When I say ‘state’ in this question, I'm not just referring to California: it could be any state in the US or DC. I'm also curious as to whether it is a legal practice in England and Wales. sources Articles on this story appeared in the guardian, the independent and daily mail 1 - A rape kit usually takes several samples of possible perpetrator DNA and a sample of the victim's DNA to separate their DNA from the perpetrator.
Does this practice contravene any state statute(s) or rule(s) of evidence? Generally not. States could adopt a statute that says otherwise, but I'm not aware of states that do. States often have regulations limiting police use of biometric data for general, non-probable cause based searches for criminal suspects. For example, many states don't make fingerprints obtained for professional licensing background checks available for searched by law enforcement without a warrant and probable cause. I suspect that states may start to do so with rape kit DNA, but it hasn't previously been identified as an issue, so there aren't statutes that prohibit this in most cases (e.g. victim's rights bills have not thought to address the issue). The reason for concern that could lead to future statutes is two fold. First, including rape kit DNA in searches discourages people from reporting crimes because it might put them at a disadvantage in an unrelated criminal proceeding. Second, the risk of false positives is vastly higher in a random search of biometric data from people with no articulated connection to the crime than it is when isolated individual suspects who there is probable cause to believe committed a crime are investigated. The chance of a false positive for someone in a database with millions of people is non-negligible even if the risk of a false positive in any one isolated comparison is tiny. Even a 1 in 10,000,000 chance of a false positive in a database of 40 million people will routinely produce false positives in random searches. And, while DNA evidence is very accurate, partial forensic DNA samples aren't absolutely incapable of producing false matches to nearly the same extent as a comparison of two complete whole genome samples. So, states may adopt such statutes in the future now that the issue is in the spotlight. contravene any federal statute(s) or rule(s) of evidence? No. violate any state constitutions or the US constitution? No. At least under current jurisprudence. The relevant provisions are vague legal standards that are applied with great discretion by courts. Evolving understandings of the situation could change that view in the future. Footnote: Does doctor-patient privilege or HIPPA control? There is a doctor-patient privilege recognized in every U.S. state and in the federal courts. Forensic DNA obtained from a rape kit from a potential suspect isn't protected by the privilege since the suspect isn't a patient of the medical provider in that medical procedure. There is an arguable case that the rape victim is a patient of the medical provider who gathers the DNA, including the rape victim's DNA for the rape kit, and that the patient has not waived the doctor-patient privilege merely by permitting the medical professional to use the rape victim's DNA profile to distinguish between sample material in the rape kit that is her own from material from a suspect. Moreover, such a waiver of doctor-patient privilege would probably not be legally valid unless the rape victim provided informed consent to that release. The rape victim might also have federal HIPPA protections for the privacy of her DNA profile collected as part of her medical records under a similar theory. Mostly, this hinges on how the relationship of the rape victim to the person administering the rape kit is characterized, and in particular, if gathering evidence in a rape kit is &quot;medical treatment&quot; that is privileged. To the best of my knowledge, there is no case law interpreting either the doctor-patient privilege or HIPPA in a rape kit DNA fact pattern. If it is considered to be a doctor-patient relationship for medical treatment within the meaning of the evidentiary privilege and HIPPA, and the DNA was shared on a database which law enforcement has access to without a warrant without the victim's informed consent, this evidence and all &quot;fruit of the poisonous tree&quot; derived from it, could probably be suppressed in a criminal proceeding against the rape victim, even if the evidence conclusively linked the rape victim to the crime. Under the circumstances, and given the policy considerations and the lack of other controlling law, this would be an attractive interpretation of the existing law for a court to adopt. If evidence completely independent of the blind database match provided probable cause that the rape victim committed a crime, and the crime was one in which there was forensic DNA evidence, law enforcement could probably get a search warrant to take a legally untainted DNA sample from the rape victim to compare to the forensically collected DNA evidence, however, just as it could with any other suspect.
Multiple victims = multiple crimes The victim(s) in the USA and Scotland are unlikely to be the same person(s) - a separate crime is committed for each event against each victim. Double jeopardy is not applicable just as if the person had robbed a bank in the USA and another bank in Scotland. Notwithstanding, double jeopardy only applies within the same jurisdiction. If the person targeted one US victim once then they have committed a crime in Scotland, a crime in the USA and a crime against the specific US state - each jurisdiction can bring charges. However, for public policy reasons, jurisdictions are usually satisfied if an alleged perpetrator stand trial somewhere.
No Federal law and most states have an notice of alibi rule that requires a defendant to identify witnesses who will testify as to their alibi and where the defendant claims to have been. The validity of these rules was upheld by the Supreme Court in Williams v Florida: The Fifth Amendment would not be violated if, after the alibi witness had given evidence, the court granted a continuance to allow the prosecution to seek rebuttal evidence (this point was conceded by Williams's lawyers). Consequently, all the notice-of-alibi law did was allow the prosecution to do so before the trial, instead of having to interrupt the trial. It did not provide the prosecution with more information to use against a defendant than they would eventually get in any event.
Assuming that the above can be established by admissible evidence, that sounds like a case for first degree murder, and probably various other crimes as well. In some jurisdictions there is a specific crime of &quot;Murder for hire&quot; which might also apply if available on the jurisdiction where this occurred. A comment mentions a possible insanity defense. That is going to depend on detailed facts not included in the question, but might be possible.
This Question Is Tricker Than It Seems One of the things about being a non-expert in a field is that it is very difficult to know in advance what is a hard question and what is an easy question. Some questions that seem like they should have simple, straight forward answers are actually very hard to answer. Some questions that seem like they should be very difficult and have involved tricky answers are actually very easy. Without an in depth understanding of the field, you just can't know in advance. It turns out that this particular question is a quite hard question to answer. So, rather than really providing a clear answer, I will explain what about this question makes it hard to answer in this answer. Even this incomplete and ultimately inconclusive answer will require far, far more words (2,078 to be exact), than were necessary to pose the question (94 words). Essentially, the core difficulty is that there are several different principles of law that apply to this fact pattern, each of which, individually have specific things that have to be proved to establish that some legal consequence will follow (which in turn are often themselves intrinsically indefinite), and each of which has exceptions that could also be proved if specific things happen. In part, this is because, while the fact pattern set forth is not freakishly unforeseeable, it is also not a fact pattern that was contemplated when any of the individual legal principles that are implicated were conceived. Likewise, the interaction of these different legal principles in one fact pattern wasn't contemplated and there is probably no one clear controlling case precedent on point that involved this fact pattern. What the law does in cases like these (which come up all the time in real life) is to break down each legal theory individually and analyze it, possibly spread over multiple distinct court cases in different courts in front of different judges. I'll try to unpack the issues (dispensing with U.K. legal terminology in some cases, since I'm only trying to provide a sense of why this is complicated and not to provide a definitive answer to how it is resolved under U.K. law). Possible Claims, Charges, and Defenses; Traffic, Civil, and Criminal It is a crime to threaten someone with weapon or in another way that puts someone at risk of imminent harm. Depending upon the weapon and other circumstances, mere possession of the weapon might be a crime in the U.K. Someone who has been threatened with weapon or in another way that puts them at risk of imminent harm can be a civil lawsuit for money damages against the person making the threat which was called &quot;assault&quot; in historical common law. Someone who has been threatened by another can seek a restraining order/protective order directing that person to stay away from them in the courts in a civil action. Hitting someone else's car is a traffic violation, unless a defense to the traffic violation is present and proven. Hitting someone else's car with a statutorily mandated level of intent is a crime, unless a justification for the crime is present and proven. The person whose car was hit could credibly argue that hitting the door was a mistake, not because the door was hit, but because the driver intended to kill them and missed, so an attempted homicide charge could raised in a criminal proceeding. The person whose car was hit could argue that there was an intend to put them in imminent risk of harm providing a basis for a civil lawsuit for money damages for common law assault. Someone whose car is hit by another car through negligence or recklessly or intentionally can bring one or more claims in a civil lawsuit against the person who car hit their car for money damages. The standard of care for negligence is established by how a reasonable person would act under the circumstances. Self-defense is a possible defense to traffic offenses, criminal charges and civil liability related to harming another's property if the conditions for self-defense apply, which include a risk of imminent harm to oneself, another, or one's property, and if the action taken in self-defense is reasonably proportional under the circumstances as evaluated by a reasonable person in response to the threat. But, if the response of the person making the threat with the weapon was as a result of actions in which the person threatened with the weapon was the true aggressor, then the privilege of self-defense would be forfeited. In real life, good attorneys for the parties could almost certainly solicit and call attention to additional facts not mentioned in the question that would further muddy the waters and raise additional claims, charges, and defenses to claims beyond the ten listed above. I could analyze each of these issues on the facts in depth as best I could with references to statutes and case law (under a body of law other than U.K. law anyway), which would take a few lengthy and heavily researched paragraphs each that would take a fair amount of time each to prepare, but I won't. A full analysis would help you weigh the odds a little better, and if I was a lawyer of a party in this situation, I would do that since every little edge counts in litigation and negotiations of settlements. But even if I did that, it would still leave a lot of uncertainty regarding the final resolution of these questions on the merits. Decision-Making Regarding Bringing Claims The traffic and criminal charges would be brought or not brought largely in the discretion of the Crown attorney or some other government official. It is most likely that a government official making that decision is doing so because the offense was referred to them by the police officer who responded to the scene, or a police officer who received an informal complaint (as opposed to a civil court filing) from one of the parties, or through a complaint delivered directly to the prosecuting authority by an alleged victim. A prosecutor doesn't have to bring claims just because someone asks them to, and doesn't have to bring all possible claims even if some are pursued. The parties themselves would decide whether or not to bring civil claims against each other. Whoever is sued first would make the decision in the context of knowing that they will be a party to a civil lawsuit whether or not they bring civil claims of their own. Possible Forums The traffic offense would probably be resolved in one court. The criminal charges against the person making the threats would be resolved in another court. The criminal charges against the person who hit the car door would be resolved probably in the same court but in a different case, possibly with a different judge. The civil claims would be resolved in yet another court, probably with a different judge, although probably in a single case with the first person to make it to court as the Plaintiff and the other party as a Defendant bringing counterclaims against the Plaintiff. The civil claims might also involve other parties (e.g. the owner of the vehicles in question if not identical to the persons driving the cars at the time of the incidents). Issue Preclusion Some final decisions on the merits in some cases would resolve the outcome of other cases as a matter of law, other final determinations in some cases would not be binding on the other cases as a matter of law because burdens of proof are different, or the legal issue evaluated is not identical, or because other rules (like a rule against a traffic court decision resulting in a binding determination on civil liability for negligence) would apply. The exact rules are rather arcane and there are quite a few permutations of how it come up, but it is important to be aware that these kinds of rules are out there, exist, and would have to be analyzed by the parties as a matter of litigation tactics. Even The &quot;Legal Issues&quot; Are Fact Intensive Inquiries Almost all of the legal theories implicated above involve broad legal standards in which a lot of the substantive question of what is or is not legal is delegated to the finder of fact in a manner that cannot be reviewed on appeal. For example, in a negligence case related to damage to an automobile, even if there is a videotape and there is 100% agreement on precisely what happened, whether that conduct constitutes &quot;negligence&quot; that breaches the duty of care owed by a reasonable person to the general public to protect them from harm, is legally considered a &quot;question of fact&quot; to be determined by a judge on a case by case basis, rather than a &quot;question of law&quot; which will always have the same outcome and is subject to review by an appellate court if the judge gets it wrong. A similar &quot;reasonable person&quot; standard which must be resolved with a highly fact intensive inquiry that could be resolved more than one way by two different judges or juries hearing precisely the same facts and finding the same witnesses and evidence to be credible in exactly the same way, with both upheld on appeal, applies to the self-defense legal theory. This self-defense issue could also conceivably, based upon the order in which cases were tried and their resolution, be resolved one way in a criminal case and a different way in a civil case between the parties. In the same vein, when a threat is imminent is a highly subjective determination that could be resolved in a &quot;legally correct&quot; way that is not subject to being overturned on appeal on precisely the same facts, with precisely the same determinations as to credibility and weight of the evidence, by two different judges or juries. Again, the substantive question of whether particular conduct is or is not illegal is a &quot;question of fact&quot; that can't be resolved in the absence of a trial on the merits in a particular case before a particular finder of fact. Bottom Line The facts provided in the question aren't sufficiently detailed to provide a definitely correct answer to this question. Indeed, the nature of the facts is such that even an perfectly detailed factual statement regarding what happened might not be enough to definitively determine who has civil liability to whom, and to determine what charges each defendant is guilty of. Different judges and jurors could reasonably come to different legally correct conclusions in a case like this one when faced with precisely the same facts and resolving all issues of credibility and the weight of the evidence in precisely the same way. This difficulty is compounded by the fact that the same facts would be analyzed with respect to different legal theory analysis in different forums by different people, when there is not, as a general rule (although there is in some cases) any mechanism for compelling those decisions to be made consistently on outcome determinative evaluations of the same facts regarding what was reasonable for the parties to do under the circumstances. The notion that a judge is just an umpire, and that every competent judge acting in good faith will always resolve a case presenting the same facts in the same way is a myth. This simply isn't true, even in the U.K. where the judiciary is (as a consequence of how the system for appointment and retention of judges is designed) not nearly as partisan and politicized as it is in the United States. The outcomes of even fairly simple cases in many cases, like the one in this question, are intrinsically and irreducibly uncertain in common law legal systems. The range of possible outcomes from a best case scenario to a worst case scenario, for each party in this fact pattern, is very wide. A desire to tame the myriad uncertainties involved for all parties, and the desire to avoid multiple time consuming and uncertain court proceedings arising out of the same incident, is one of the reasons that it is very common for civil lawsuits to settle out of court without a trial, and for criminal cases to be resolved by an agreement of the prosecution and the defense (sometimes reached even before charges are filed).
The most innocent of your scenarios is "against the rules", so less innocent acts fair worse. The idea behind researching legal theory and precedent (presumably not presidents) is that surely it is good for a juror to know what the law is. But that thinking is wrong. The judge will instruct you as to what the law is, and will also instruct you that "the law" is limited to what he says it is. I will draw on the instructions for an antitrust case, Best Buy v. Toshiba, HannStar. The core instruction is: It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. The preliminary instructions (the pattern instructions for California civil trials) say the same basic thing: At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you, even if you do not agree with the law. The judge instructs the jury that: When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. Your research might find alternative statements of the law out there, which seem entirely plausible. That doesn't matter: you have to set aside whatever ideas (about the law) that you've gotten from anybody besides the judge. In fact, if the judge makes a (serious) mistake and rules against a party in a manner that is contrary to established law, and you know this (it doesn't matter how), you are supposed to apply the law (including rulings during trial as to admissibility) as given to you by the judge. As for a case of a juror knowing that the judge was mistaken (specifically, knowing based on his pre-existing knowledge of statutes and case law – not based on forbidden research during a trial), we can get the "should" from the absolute instruction to follow the judges instructions. Additionally, if you read transcripts of voir dire (not a trivial task), you can observe judges probing attorneys who happen to be in the prospective pool, asking questions to determine whether that person can just do as they are told. But it would be difficult to establish a "hard rule". There never will be an instruction that says "You must follow my orders even if you know for a fact that my orders are wrong" – jury instructions never admit the possibility of judicial error.
In new-jersey, the offence of perjury is defined at 2C:28-1 of the Code of Criminal Justice A person is guilty of perjury, a crime of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true. The Code also provides an opportunity for retraction. Assuming that the statement is material, whether answering &quot;no&quot; is perjury will depend on the witness's understanding of the question and his belief about the truth of the answer. If we assume that the witness understands the question to be about parentage in general, including by adoption, and if we assume that they know they have an adopted child, the answer &quot;no&quot; would be perjury. If instead we assume that the witness understood the question to be narrowly about biological parentage, or if they had forgotten at the time of their answer that they had an adopted child, then the answer &quot;no&quot; would not be perjury.
Yes. In a civil case, there are two parties and the case is about finding out who has which obligations to whom. In a civil case, the plaintiff has to prove that they actually incurred damage through the actions of the defendant. A criminal case is the state vs. the defendant. The "wronged party" is the society as a whole, usually represented by the prosecutor. The victim, if there is one, just plays the role of yet another witness to find out if the defendant needs to be punished and how. There are also examples of crimes which are completely victimless but still punished by some societies. For example, in many places sexual intercourse between two consenting adult siblings is a crime (incest), even though there is no victim. Also, for some crimes it is even a crime to attempt to commit it. So one can be punished in a criminal court even though they didn't actually succeed in causing any damage to anyone. Example: I throw a rock at your car. When I hit, you can sue me in a civil court and force me to pay for the repairs. When I miss, I caused no damage to you, so there is nothing you could sue about. But what if I throw a rock at you and miss? That's attempted assault, maybe even attempted murder. When law enforcement finds out about it, I could be arrested, prosecuted and convicted to a prision sentence, even though you are perfectly fine.