Criminal Procedure

DNA Increasingly Used to Solve Property Crimes

Published on: November 14, 2008 | by Lasnetski Gihon Law

The use of DNA evidence by Jacksonville police and the Jacksonville State Attorney’s office, among other agencies, involves collecting biological material, analyzing the material, developing a profile and then attempting to compare it to profiles in state and/or federal databases where the DNA profiles of various people are stored. In the past, this process was expensive and lengthy and thereby reserved primarily for violent crimes such as murder and rape. However, the cost and time involved in DNA investigations and analyses have come down to the point that law enforcement officials are using DNA to solve property crimes such as burglary, theft and auto theft. Back in the late 1980’s, when DNA analysis was in its early stages, large DNA samples were required for them to be useful, and it was expensive and time consuming to complete the analysis and comparison. Today, the process can be done with much less of a sample and, in some cases, it can take several hours and less than $100. As a result, law enforcement officials are increasingly of the opinion that a criminal investigation involving DNA is feasible for certain property crimes, particularly when the FBI estimates that the cost of property crimes in the United States was approximately $17.6 billion in 2007.

Just about any biological material can be used as a DNA sample. For instance, if a burglar decides to take a bite out of some food at the house from which he/she is stealing, if a thief leaves skin cells in the car he/she stole or if a thief cuts him/herself on a broken window used to gain entry into a house or building, there could be DNA that could be used to tie that person to the scene of the crime. When police decide to conduct an investigation involving DNA collection and analysis, they are five times more likely to identify a suspect than with fingerprints alone.

Majority of People are Against Minimum Mandatory Sentences for Nonviolent Crimes

Published on: October 25, 2008 | by Lasnetski Gihon Law

A recent poll indicated that a majority of Americans support eliminating minimum mandatory sentences for nonviolent crimes. A minimum mandatory sentence is a sentence that is prescribed by the state legislature or Congress that indicates the minimum, or lowest, sentence a person can get after being convicted of certain crimes. It takes the discretion away from the judge and the prosecutor who have more specific knowledge of the particular facts of the case. One argument in support of minimum mandatory sentences is that they equalize the treatment given to different people who are convicted of similar crimes. However, in taking away the discretion of prosecutors to recommend lower sentences and judges to issue lower sentences, the results are often unfair and fail to take into consideration the mitigating circumstances of each individual case. They also prevent judges from ordering particular defendants to serve a more appropriate and rehabilitative sentence, such as one incorporating treatment, and often limit judges to ordering a more inappropriate and costly sentence that only incorporates prison. This can be particularly true for nonviolent crimes such as drug crimes.

The recent report indicated that 78% of the people polled felt that judges, as opposed to legislators, should decide what sentence a particular criminal defendant should get after pleading guilty or no contest to a nonviolent crime or being found guilty of a nonviolent crime after a trial. This is consistent with the idea that the judges who know more about the specific cases and individuals are better equipped to decide what sentence is appropriate.

Recent reports have also indicated that minimum mandatory sentences have had no beneficial effect on drug use and abuse, drug addiction or drug trafficking. Often, these minimum mandatory sentences affect drug users and small time drug dealers as opposed to drug traffickers and suppliers. However, minimum mandatory sentences for nonviolent crimes like drug crimes have significantly increased state and federal costs and ensured that those funds have gone toward incarceration and inmate housing as opposed to drug treatment and prevention which might reduce the number of nonviolent drug offenders who go through the criminal justice system.

Drug Testing in High Schools on the Increase

Published on: October 19, 2008 | by Lasnetski Gihon Law

According to recent reports and articles, high schools across the United States are increasingly drug testing their students. Court cases that have addressed the legality of drug testing in high schools have resulted in opinions that allow high schools to drug test students as a prerequisite to joining school sports teams and extracurricular activity organizations. Students who refuse to consent to random drug testing can be banned from playing sports and participating in extracurricular activities.

President Bush instituted a policy to expand drug testing in high schools and approved millions of dollars towards that expansion. One way the federal government has encouraged high schools to drug test their students is to reward federal grant money to those schools that institute the drug testing policies. Reports indicate that 4-7% of all high schools in the U.S. have such random drug testing policies, and the numbers are increasing by about 100 per year.

Other than the obvious trust and right to privacy issues implicated by the high school drug testing policies, critics point to various studies (like this one) that indicate that such policies have no effect, or a negative effect, on drug use among high school students.

Are Drug Dogs That Are Used by Police to Search Vehicles for Drugs Reliable?

Published on: October 17, 2008 | by Lasnetski Gihon Law

Jacksonville police and police officers all over Florida commonly use drug dogs or K-9’s that are trained to detect the odor of marijuana, crack, cocaine, methamphetamine and other illegal drugs to search for those drugs in vehicles and other areas. However, there is some question as to how reliable these drug dogs are in detecting the odor of illegal drugs. Drug dogs and the police officers who handle them are supposed to be trained and certified to assure that they are both skilled and qualified to accurately detect the odor of illegal drugs and give the appropriate signal in those circumstances. However, not all of these drug dogs are so qualified according to recent criminal cases and news articles.

In the traffic stop scenario, a common drug dog search may proceed as follows. A Jacksonville police officer would pull a driver over for some sort of moving traffic violation. If the Jacksonville police officer feels like he/she sees indications of drug possession, the officer may call for a drug dog to walk around the vehicle and smell for the odor of illegal drugs. Without probable cause to believe that drugs are in the vehicle, the police officer should conduct the drug dog search while the driver is in the process of getting his/her ticket for the moving violation. In other words, if the police officer has finished giving the driver a ticket or warning, that driver is free to leave and cannot be ordered to stay for the drug dog search unless the police officer has specific reasons to believe that the driver is committing a crime, such as possession of illegal drugs.

The police officer will either have his own drug dog present or he/she may call for a drug dog over the radio. Assuming a drug dog is present, or arrives, during the ticket-writing process or there is other specific evidence to suggest drugs are present, the police officer may have the right to walk the dog around the vehicle. As the drug dog walks around the vehicle, the dog may give a certain signal or alert that the odor of drugs is present. At that point, the police officer will likely search the vehicle for the suspected drugs.

New Report to Question Reliability of Forensic (CSI) Evidence

Published on: October 7, 2008 | by Lasnetski Gihon Law

A recent study by the National Academy of Sciences is looking at the reliability of certain forensic evidence techniques many assume are reliable such as the use of fingerprint, tire track and bite mark analyses. These techniques are commonly used by the state to prosecute and convict people accused of a crime. The report is not due until December, but there are indications that the report will cast serious doubts upon the use of these techniques in criminal cases.

It is too early to speculate, but depending on the continued viability of these forensic evidentiary methods, the report could open up arguments to have prior convictions reopened and examined. The report and its findings could also affect future criminal cases and the state’s ability to use such techniques in court. At a minimum, it may allow criminal defense attorneys to produce evidence that these techniques are questionable and certainly not as reliable as juries often assume. For instance, regarding bite mark analysis, one prior study showed that an innocent person was identified 63% of the time based on bite mark evidence.

Once the report comes up, we will have more information regarding its contents and possible ramifications.

New Rules Would Allow FBI Agents to Expand Investigative Methods

Published on: September 29, 2008 | by Lasnetski Gihon Law

The Department of Justice is considering new rules which would give the FBI more tools to investigate crimes and gather intelligence about suspected criminals and other persons of interest. The rules governing the FBI were expanded after 9/11, and these new rules would provide the FBI with additional investigative tools.

Some of the additional methods the FBI could employ to investigate crimes include: conducting surveillance in public, using confidential informants to obtain information and evidence, questioning criminal suspects and others without identifying themselves as FBI agents and conducting expanded threat assessments based on less evidence than would be required for a formal investigation. Currently, FBI agents can only conduct interviews after they identify themselves, which FBI agents argue makes it more difficult to obtain the information they need. Critics of the expanded tools for the FBI are concerned that the expanded threat assessments would be based on factors like ethnicity and race and that the new rules would give the FBI too much leeway in gathering information about U.S. residents.

Federal Prosecutors Issue New Policies Regarding Credit for Cooperation of Criminal Defendants

Published on: September 12, 2008 | by Lasnetski Gihon Law

In the federal criminal system, when a person is arrested for a crime, or a corporation is being investigated for criminal conduct, credit for cooperating with the government can be obtained which can translate into a lower sentence. Federal law enforcement officials may ask a corporation’s representatives to cooperate by identifying wrongdoers in the corporation, identifying and producing relevant documents and/or testifying about corporate practices. However, when the request to cooperate is made by the federal prosecutors, it may infringe on a criminal defendant’s Constitutional rights, such as the right to confidential communications with his/her attorney.

Last month, the Department of Justice issued new policies regarding how federal prosecutors are to handle the balance between credit for cooperation and the privileged communications involving a corporation and its employees. The new policies indicate that the government will not base credit for cooperation on whether a corporation waives the attorney-client privilege (communications about the case between a client and the attorney) or the work product privilege (documents and information created in anticipation of preparing for and litigating the case). Rather, credit for cooperation will depend on the disclosure of facts. In other words, whether a corporation waives either privilege will not be the issue. Whether the corporation discloses the information sought, regardless of whether it is protected by the attorney client privilege or work product privilege, will determine whether credit is received.

It is helpful that the government is not specifically expecting and anticipating a suspect or defendant to waive his/her protected attorney-client and work product privileges when deciding if credit for cooperation is appropriate. However, in many cases, this may be a distinction without a difference, when the government is looking for information that falls within one or both of the privileges. Then, it will be up to the corporate representatives and the criminal defense attorney to decide whether waiving the privilege is in the best interests of the client(s). Additionally, it is important to note that the DOJ indicated there are two exceptions to this new policy, but those exceptions were not identified in the August 28, 2008 press release.

Can Jacksonville, Florida Police and Prosecutors Use Your GPS Device to Make an Arrest or Obtain a Conviction for a Crime?

Published on: September 8, 2008 | by Lasnetski Gihon Law

A recent trend in criminal prosecutions throughout the country illustrates that police and prosecutors are using GPS device information against criminal suspects and defendants to obtain arrest warrants and convictions. For example, earlier this year, prosecutors in Chicago used a criminal defendant’s GPS device to show that he was in the area when four of his family members were killed, according to an article on an Idaho online news website. The defendant was convicted of murder in that case. GPS devices are used in cars, trucks and cell phones to help people find a particular location. The GPS devices also maintain records as to where the device has been at a particular time. In certain cases, police and prosecutors have obtained the information from a suspect’s or criminal defendant’s GPS device to attempt to prove that the person was at a certain place at a certain time. This information can be helpful to police and prosecutors to try to show that a person was at or near the scene of a crime at a certain time or to attack a person’s alibi defense.

Of course, a criminal defense lawyer can also use a suspect’s or criminal defendant’s GPS information to show that his/her client was nowhere near the crime when it occurred or to otherwise support an alibi defense.

GPS devices are becoming increasingly popular as prices decrease. One study indicated that 20% of people in the U.S. own a portable GPS device. Semi trucks and other commercial vehicles routinely have some sort of GPS device. People need to understand that the information that is inputted into, and recorded on, a GPS device could later be used against them in court. While there are Fourth Amendment search and seizure issues that a criminal defense attorney can argue to suppress the GPS device evidence, the case law on the subject is scarce and the prevailing trend appears to be in favor of allowing the evidence into criminal (and civil) trials.

Conversations From the Duval County Jail Phone Can Be Used Against You in Court

Published on: September 3, 2008 | by Lasnetski Gihon Law

In Jacksonville, Florida when a person is arrested for a crime and taken to jail, he/she will have an opportunity to make a phone call from the Duval County Jail. However, every inmate in the Duval County Jail (as well as other jails and prisons) and everyone having a conversation with an inmate in jail need to be aware that the conversation will almost certainly be recorded and anything said during that phone call can be used against a criminal defendant in court.

This may seem obvious, but not everyone is aware of the fact that inmate calls from jail can be used as evidence in a criminal trial and/or sentencing hearing. For example, a guy who was convicted of a federal crime in Georgia actually used the phone in federal prison to try and commit mortgage fraud, according to an article on ajc.com. The federal inmate’s conversations from prison in which he tried to lure victims into a mortgage fraud scheme were recorded and used in federal criminal court to convict him of mortgage fraud and add a consecutive 10 years to his existing 20 year prison sentence. This is an extreme example of an inmate providing incriminating evidence to the government by way of a jail call, but the better general practice is to refrain from talking about your case over the phone in jail or prison.

Are DNA Profile Matches as Reliable as the Government Suggests?

Published on: August 28, 2008 | by Lasnetski Gihon Law

In a criminal case, when the police or prosecutors indicate that they have a DNA profile match between evidence at the crime scene and the suspect or defendant, they suggest that this evidence conclusively establishes a connection between the suspect or defendant and the crime scene. In a criminal trial, the prosecutor might tell the jury that the DNA profile match is clearly proof beyond a reasonable doubt, throwing out statistics like a one in a billion chance the DNA could match someone other than the defendant. And jurors, who watch television shows that briefly and incompetently discuss DNA issues, typically believe in the strength and credibility of DNA evidence.

However, studies by DNA analysts indicate that DNA profile matches are not as conclusive as prosecutors would have everyone believe. There are 13 locations, or loci, on a chromosome that can be matched. The FBI says that when there is a DNA match of 9 of the 13 loci, the chances are 1 in 113,000,000,000 that the match is unreliable, or that the crime scene DNA might match someone other than the suspect (with the exception of relatives). If these odds are considered credible, it is compelling, if not irrefutable, evidence of guilt to a jury. However, DNA analysts have examined various state DNA databases and found many more profile matches than the 1 in 113,000,000,000 claim would suggest possible.

In Arizona, a DNA analyst was reviewing the state database and found two individuals whose chromosomes matched at 9 of 13 loci, according to an article at Sfgate.com. The FBI, of course, says the odds of this occurring are 1 in 113,000,000,000. In other words, it is practically impossible. The analysts continued her research and found dozens of similar DNA profile matches.